civil Litigation Flashcards
Civil Litigation (Definition/what is a civil wrong/Tort/Purpose of court/main parties)
A judicial proceeding used to prosecute a civil wrong.
Civil wrong is a wrong committed by one person against another in which one of the parties may be entitled to damages
If a person suffer bc of injury or damage to their property, the type of damage is a tort
Purpose of court is to resolve differences bw parties to a lawsuit and to establish rights, duties and obligations of the parties
Party who is wronged (plaintiff) may bring action against wrongdoer (defendant) seeking to recover damages
Parties may be repped by counsel or by themselves (propria persona or in pro. per.)
Parties (Civil Litigation)
Plaintiff
Defendant
Cross complainant
Cross-defendant
Intervenor
Appellant
Respondent
PLaintiff (Civil Litigation)
Party commencing action
Defendant (Civil Litigation)
Party against whom the action is brought
Cross Complainant (Civil Litigation)
Any defendant who is asking affirmative relief in connection with the plaintiff’s lawsuit
Cross-defendant (civil litigation)
Any plaintiff, defendant, or new party against whom a cross-complain is brought is the cross-defendant
Intervenor (Civil Litigation)
3rd party who is permitted by the court to become a party to the action between other persons by filnig a complaint in intervention
May either join with plaintiff’s claim or join defendant in resisting plaintiff’s claim or demand something of both parties
Appellant (Civil Litigation)
Party who filed an appeal with a higher court
Respondent (Civil Litigation)
Adverse party to the appellant
Civil Litigation Complaint (What is it/format/what does it state)
First pleading in a lawsuit filed by plaintiff
Can be in captioned format on pleading paper or on JC form
If using JC forms, make sure to add forms for cause(s) of action
If using pleading format, names of each party must appear on separate lines
States names of the parties, court’s jurisdiction over the matter, cause(s) of action , and allegations supporting the cause(s) of action
Parts of a Complaint (Civil Litigation)
Caption
Body (Causes of action against defendant)
Prayer (States the relief sought by plaintiff)
Signature Block
Complaint Body (Civil Litigation)
Contains:
the names of the parties
Including a DOE paragraph
Statement of the court’s jurisdiction over the matter
Cause of action
Allegations supporting the cause of action
Form of complaint may be typed or on a judicial council form
DOES, ROES, ZOES (What is it/How is it done)
Used to name a potential defendant in an action by a fictititious name because the real name is not known yet
When the real identities are ascertained, the real names will be substituted for the DOES
Done by way of local form entitled Amendment to Complaint
DIFFERENT THAN AMMENDED COMPLAINT
Cause of Action (Civil Litigation)
Comprised of allegation which give rise to the action and give a party the right to request a remedy by the court
The allegations are statements by the plaintiff setting out what the plaintiff intends to prove by way of the complaint
Prayer (Civil Litigation)
States the relief plaintiff seeks
Often noted by use of the word “WHEREFORE”
All in caps at the beginning of the paragraph
Signature block (Civil Litigaiton)
Complaint is dated and signed by the attorney representing the plaintiff
The Civil Case Cover Sheet (What is it/When is it filed/What about other cover sheets/local rules/complex cases and collection actions/failure to file cover sheet/use for civil case cover sheet)
Mandatory judicial council form, to be filed with the court at the time the first civil litigation complaint is filed (Form CM-0100)
Must be filed in addition to any cover sheet the may be mandated by local court
Check local rules re: requirements for other forms
Forms will be available on the website of the relevant local court and must be filed at the same time as the complaint
If plaintiff indicates on cover sheet that the case is complex or is a collection action, plaintiff must serve a copy of the cover sheet with the complaint
In all other cases it is not necessary to serve cover sheet, just file it
If a party fails to file cover sheet, the clerk will file one, and continued failure to file cover sheet may result in penalty for party and/or counsel
Used by the court for statistical purposes only
Civil Litigation: Summons (What is it/Importance of Response/format/who issues summons/POS/original copy/parties listed on summons/space for names)
Official notification to parties named as defendants that an action has been filed against them, and the necessary actions they must take
Unless they file response in a certain timeframe, judgement may be entered against them
The Summons is a mandatory form and can be found on the Judicial Council website
Summons is “issued” by the court and a copy served on a defendant with the complaint
Proof of Service then filed with the court
Original copy retained by the court clerk and copies issued to the filing party
Parties listed in the summons must appear identical to the parties listed in the complaint and cannot be abbreviated
If names exceed the space on the summons, the names are continued on an attachment entitled
“Additional Parties Attachment”
Judicial Council Form-200(A)
Steps for Submission for Filing/Issuance (Preparation of Complaint/Preparation of Summons/Preparation of civil cover sheet/copies for retention/fee/instructions/what will the court do after you file paper/what does plaintiffs attorney do after the court issues summons)
Prepare an original and one copy of the complaint
Prepare an original and a copy of the summons for each defendant to be served
Prepare an original and one copy of the civil cover sheet
Retain a copy for office file
Provide filing fee or request attorney service to advance the filing fee
Provide instructions to messenger as required
The court will:
File all the papers
Issue as many copies of the summons as provided
Return the endorsed filed copies to the plaintiff attorney
Retain originals in the courts file
Plaintiff’s attorney will then copy the conformed copy of the complaint and issued summons for service on the defendant(s)
Time for Service After Filing (Civil Litigation)
The action is commenced on the date the complaint is filed
Proof of service of the Summons must be filed within 60 days of service
Statute of Limitations (Civil Litigation)
Law provides time limits covering the period in which certain actions must be filed
Failure to file actions within statute of limitation is one of the most serious errors an attorney can make
It’s called malpractice
Time limits/statute of limitations should be docketed
Petition for Guardian Ad Litem (Minor’s capacity for self-representation/Guardian Ad Litem/role of GAL/How to Appoint GAL/when is petition made/what does court do with petition/petitions from minor 14+/form)
A minor does not have the capacity to sue or defend themselves
A court will appoint someone to prosecute/defend on behalf of the minor
This person is called Guardian Ad Litem
This person is an officer of the court whose responsibility is to the best interests of the minor
Usually a family member
Appointment accomplished through a petition and must be completed prior to the issuance of the summons or filing of the complaint
Typically, petition is presented to the court at the time of filing of the complaint
Court signs an order appointing guardian
Petition can be made by minor if 14+ and proposed guardian signs consent to be appointed
Application/order are both judicial council forms and are mandatory for use
Claim Against a Public Entity (what must you do before filing a compllaint/time limits for claims/pub entity response/if claim rejected/rights to sue letter/claimant response time/if no notice on claim is given)
Before you can sue a public entity (file a complaint) you must first file a claim pursuant to Government Code section 910
Must file claim within 6 months of incident for:
Personal injury
Damage to personal property
Wrongful death
Within 1 year of the incident for:
Breach of contract
Damage to real property
Equitable estoppel
Public entity shall give notive within 45 days of presentation of claim stating whether it is granted or rejected
Typically, the public entity will grant or deny claim in writing
If entity rejects claim, they will notify you in writing that you can pursue the matter in court
This written notification is often called your “rights to sue letter”
Claimant then has 6 months from the date of the notice to file a complaint
If no notice is given, then the claim is deemed rejected after 45 days from service
Plaintiff will have two years from date of injury to file complaint
Order of Initial Documents
varies by Court, but includes:
Petition and proposed order appointing guardian ad litem, if applicable
Summons
Complaint
Civil case cover sheet
Check local court rules and the court’s website for required mandatory forms with initial filings
Filing Fees (Relevance/fee schedules/statewise fee schedule/Government Code section 6103)
In most cases, a filing fee is required to file papers with the court
Fee schedule are posted on each courts website
Statewide civil fee schedule can be found on the Judicial Council website
Government code section 6103 exempts government entities, including the state, counties, cities, and districts, from paying or depositing certain filings and fees for services
Fax/Facsimile Filing (When is it allowed/attachments/first page/local rules)
In very few instances some courts allow direct fax filing of documents with the court or through a fax filing agency
A party filing a document directly by fax must use the Facsimile Transmission cover sheet (Fax Filing)
The cover sheet must be the first page transmitted (this is a judicial council form)
Most counties have eliminated fax filing
Check your local court rules
E-Filing (Definition/Who allows it/EFSP/Time-filed)
E-filing is the electronic transmission to the court of a doc in electronic form
Several courts have mandatory e-filing with a few exceptions (self-represented parties are usually exempt)
An e-filing service provider may be required to file to doc
The court will have a list of approved e-file services on its website
Approved providers vary from court to court
Docs must be filed by 11:59 p.m. or will deemed filed the next business day
E-filing Fees (Civil Litigation)
In addition to the court filing fees, there will be additional fees depending on the service provider utilized
E-Filing Special formatting (who dictates format/conversion/file size/bookmarking)
A doc that is filed electronically with the court must be in a format specified by the court unless it cannot be created in that format
Docs are converted to a pdf file type and must be text searchable
There may be file size limits
Bookmarking of headings and exhibits may also be required
Service of E-Filed Docs (When is it authorized/response time extensions/docs e-filed on court day/docs e-filed on non-court day/EFSP terms)
Authorized if:
A party has expressly consented to receive electronic service
The court has ordered electronic service on a represented party or other represented person
The document is served electronically pursuant to the procedures specified in subdivision (e)
Response time extended by 2 days
Served electronically between 12:00 a.m. and 11:59:59 p.m. on a court day shall be deemed served on that court day
Documents served on a non-court day will be deemed served on the next court day
Agreeing to the terms of the EFSP constitutes consent to receive electronic service
Once Lawsuit Filed (What appears on document/what is this document called/what else might appear on or with initial docs/docketing/if no answer)
Case number and filing ribbon or stamp will appear on the front page of all civil initial filings
This called ‘endorsed’ or ‘conformed’ copy
The assigned judicial officer and courtroom may appear on the front page of all civil initial filings
A notice of case assignment may be transmitted back with unlimited civil initial filings
You may get back a Notice of Case Management Conference with a date for that hearing
Make sure you get these docs docketed and on the calendar
If the defendant does not answer in the timeline, you have a deadline to file a request for default
What if your filing gets rejected (civil litigation)
Take a breath and review notes from the court
If the notes aren’t clear, try calling the court
Let your attorney know what happened
Learn from your mistake—everyone gets a document rejected at some point
We’ll go over the most common reasons why
Typical reason over-the-counter filings Get Rejected (civil litigation)
Missing signatures or docs
Not following local jurisdiction rules
Failure to reserve hearing dates
No reservation number on filings
Paper docs don’t include copies for the judge
Case titles on summons docs don’t match case titles on complaint docs
Doc pages aren’t numbered properly
Wrong case numbers on subsequent filings
Incorrect court location selection
Incorrect case category and/or case type selected
Incorrect payment account option selected (i.e., fee waiver)
Party’s name entered in the party name field does not match document
Incorrect party type selected
Party’s address does not match the address on the initial complain/petition
Incorrect document type is selected
Illegible document submitted
Multiple filing docs are submitted as with single filing code
Serve Defendants (Rule/Deadline to serve/what happens when you miss deadline)
You have to give formal notice to the other side that they have been sued – this is called service of process
Typically, most courts give you 60 days to serve defendants in the action
The POS for the Summons must be filed within 60 days of the filing of the complaint
Otherwise, the court will set a hgearing called an Order to show cause as to why the proof of service was not filed; unless your attorney has a good explanation, he/she could be sanctioned (fined) and the case dismissed
What is Service (What is it/Who does it)
The law says that when you sue a person, partnership, corporation or the government, you must give formal notice to the other side that you have started the legal process
The legal way to give formal notice is to have the other side “served” with a copy of the paperwork that you have filed with the court
Person who does this is called the process server
Personal Service (What is it/What is the response deadline/when can you try something else)
When an individual or their legally authorized representative is served with legal filings by personal delivery (Code Civ. Proc §§ 415.10, 416.90)
Ideal form of service
Must attempt personal service at least 3 times before moving on to substituted service
Defendant has 30 days from time of service to file a response to the complaint and serve a copy on the parties to the action (Code Civ. Proc., § 412.20)
Substituted Service (Civil Litigation)
Must make at least 3 unsuccessful attempts at personal service before turning to sub-service
You may ‘substitute serve’ the defendant by leaving a copy of the summons and complaint at the person’s dwelling, usual place of abode, usual place of business, or usual mailing address other than a U.S. Postal Service post office box
Must be served in the presence of someone 18+ who is an apparent member of the household, or in charge of defendant’s place of business/office
Thereafter, you must mail copies of of the summons and complaint to the person served where summons/complaint were left
If you don’t do any of these three things, you do not have effective service
Shall be informed of contents of service
Defendant is deemed served 10 days after the date of mailing of the summons and complaint (Code Civ. Proc., §§ 415.20.)
Then has 30 days to respond (Thus 40 days total from day of mailing)
Mail and Acknowledgement of Service on defendant (How to do it/Form/Return Time/Response Time/Who Can Sign/What if No One Signs/Cover Letter)
By mailing a copy of the summons and complaint by first class mail or air mail, postage prepaid, to the person to be served, together with two copies of the notice and acknowledgement of receipt with a return envelope, postage prepaid, addressed to the sender (Code Civ. Proc., § 415.30.)
Acknowledgement of Receipt is a Judicial Council Form
Defendant has 20 days to sign/return the acknowledgement and receipt, or the defendant will be liable for the reasonable cost to personally serve the defendant
If the defendant signs and returns the acknowledgement of receipt, he or she has 30 days from the date the acknowledgement was executed/returned to respond
Acknowledgement of receipt can be signed by the defendant/respondent or anyone authorized to accept service on their behalf
If not signed/returned you do not have effective service
The attorney may send a cover letter that explains this process and the fact it will save them the trouble of having a process server come to their work or home
Service by Publication (How is it authorized/requirements for publishing entity/response deadline/other options/forms/costs/if you find out address prior to day 28)
Upon court order, publish the issued summons in a named newspaper in the state likely to give notice to the party served
Publication must be once a week for four consecutive weeks and service is deemed complete on the 28th day fomr the first publication date. (Code Civ. Proc., § 415.50; Gov. Code, § 6064.)
Defendant has 30 days after the 28th day of the first day of publication to respond (Gov. Code, § 6064; Code Civ. Proc., § 412.20.)
Have to exhaust all other means of service first
Some courts have a local form to request for an
order to publish summons
This can be expensive
If address is ascertained before expiration of time of publication, must mail a copy of the summons and complaint and order to party
Personal Service on Corporation (Acceptable forms of service/Response times)
By personal delivery of the summons and complaint in any one of the following ways
To designated agent of service
To an officer or person authorized by the corporation to accept service
If a bank, agent of service and, additionally, cashier or assistant cashier
Defendant has 30 days from date of service of the summons/complaint to respond
Personal service on a public entity (Who can be served/response deadline)
Accomplished by personal delivery/service of summons/complaint upon
Clerk
Secretary
President
Presiding officer
Other head of relevant governing body
Defendant has 30 from service to respond (Code Civ. Proc., § 412.20.)
Service on a person outside of CA (Return Receipt/attachments/when is defendant deemed served/other methods of service)
By sending a copy of the summons and filed complaint to the person to be served, by first class mail, postage prepaid, requiring RETURN RECEIPT/RESTRICTED SERVICE
A copy of the return receipt showing the signature of the person required to be served must be attached to the POS filed with the court
Defendant is deemed service 10 days after the date of mailing of summons/complaint, has 30 days to respond
Additionally, a person outside of state may be served in any manner deemed acceptable/legal in the place they are located
You can also serve people outside of CA by all the other methods should you wish
Service Requirements for Professional Negligence Cases: Healthcare Provider
In actions for professional negligence/medical malpractice against a healthcare provider, defendant must be given 90 days’ notice of the intention to commence action (before lawsuit is filed)
(Code Civ. Proc., § 364)
Notice of intention to commence action (claim) shall notify defendant of the legal basis for the claim and the type of loss sustained, including with specificity the nature of the injuries suffered
Notice of the claim may be made in the manner prescribed in Code of Civl Procedure secionts 1010-1020
If the notice is served within 90 days of expiration of the applicable statute of limitation, the time for commencement of the action shall be extended 90 days from service
Service Requirements for Professional Negligence Cases: Architect
Certificate shall be executed by the attorney for plaintiff or cross-complainant and served along with the summons and complaint or cross-complaint
This certificate, in essence, states that the attorney has reviewed the case, has received at least one independent expert opinion from an architect that the defendant architect committed professional negligence and there is reasonable meritorious cause for filing the action
Special Requirements for Serving/Filing Suit Against a Public Entity
In action againt a public entity must give notice of the claim (before lawsuit filed) no later than 6 months after the accrual of the cause of action
(Gov. Code, § 945.6)
Claim shall notify the public entity of the legal basis for the claim and the type of loss sustained
Including with specificity the nature of injuries suffered, and identity of the public entity employee(s) causing the injury of loss
Filing Proof-of-Service (Form/Rule requiring service/POS/How many per defendant/attachments/calendar/process server)
Judicial Council form POS-010 - Mandatory for use
It is required that the other side be served with docs filed with the court and/or which require service (such as discovery docs)
After the defendant is served, a Proof of Service of Summons will need to be completed and filed with the court
Separate POS is required for each defendant
Make sure attachments included if necessary
Be sure to calendar when defendant’s response is due
due date depends on method of service
be sure to use the effective date of service
If using a process server, they will most often file the POS for you, but stay on-top of it
Available Methods for Serving Complaints and/or Summons v. Serving Subsequent Docs
Important to remember that methods of service for summons/complaint are different than all other, subsequent documents that will be filed/served throughout the course of the case/trial
Summons/Complaint:
Personal Service; Substituted Service; Mail and acknowledgement of service; Service by publication
Subsequent Documents (other than motions):
Personal Service/Hand delivery; Mail; Overnight Delivery; Electronic/email/fax
After Service/Filing of Initial Documents (Who is entitled to subsequent docs/How and on whom are docs generally served subsequent to initial docs)
After a party has appeared in an action, they are entitled to notice of all subsequent proceedings
After initial service, most docs are served on the attorney by mail, electronic, overnight mail, or hand delivery
A defendant has appeared in an action when they/their:
Answer
Demur
File a notice of motion to strike
File a notice of motion to transfer
Gives the plaintiff written notice of appearance
Attorney gives notice of appearance for defendant
Rules for Service of Subsequent Documents (Who can serve them)
Several ways to serve papers, however acceptable service methods vary by case
When serving docs, service must be conducted by a THIRD party, who is not a party to the action
In all cases, a server must:
Be 18 or over
Not a party to case/action
Serve the paperwork on the other side in the time required
Fill out POS
Return POS
Who to Serve: Public Entity (City/County/State)
City: Clerk of City Council
County: Clerk of Board of Supervisors
State: Victim Compensation and Government Claims Board
Service of the claim is made by personal service or mail pursuant to Code of Civil Procedure section 1013a
Civil Litigation: Tips for Filing (Which courts require e-filing/local rules/number of copies/doc management)
Most courts now require documents to be e-filed (check rules)
Check local rules for papers that do not/should not be filed with the court
Be sure to know how many copies are necessary if filing manually with the court
Most offices scan their docs to a doc management system or on their network, save a conformed copy of all filed docs in their assigned folder.
Filing Fee (Relevant code/exceptions)
Government Code section 6103 exempts government entities, including the state , counties, cities, and districts, from paying or depositing certain filing fees and fees for services
The exemption does not apply to civil jury fees or jury deposits
Rejection Reasons (E-Filing)
Incorrect court location selection
Incorrect case category and/or case type selected
Incorrect payment account option selected (fee waiver)
Party’s name entered in the Party Name field does not match document
Incorrect party type selected
Party’s address does not match the address on the initial complaint/petition
Incorrect document type is selected
Illegible document submitted
Multiple filing documents are submitted as with single filing code
Service of Process (What does it mean/who can serve docs/what are they called)
Means the other side must get copies of any paper you file with the court
In service of process, a third person (not you) is the one who actually delivers the paperwork to the other side
Person who does this called a process server
Methods of Service of Summons/Complaint
Personal Service
Substituted Service
Mail and Acknowledgement of Service
Service by Publication
Process Service of Summons (Who can serve/Time Limit for service and filing POS/Process Server/Failure to File POS/notice to person served/defendant served in multiple capacities/after effective service)
Copy of the issued summons and complaint may be served on a defendant by any person at least 18 years of age who is not a party to the action (Code Civ. Proc., § 414.10)
Typically have 60 days to file POS (Which, effectively, means you have 60 days to serve complaint/summons)
Use of a process server is suggested
Process server will fill out the POS form
Failure to file POS for the summons and complaint may result in court setting a hearing called an Order to Show Cause for why no filing took place, w/o good reason for failing to file lawyer may be sanctioned and/or action may be dismissed (Code Civ. Proc., §§ 583.210-583.430)
On the copy of the summons that will be served on the defendant, complete the area noted as ‘NOTICE TO PERSON SERVED’ as to the capacity the defendant will be served (corporation, individual, etc.)
If a defendant is served in two different capacities copies of the summons and complaint must served on both capacities
Once service effected, you should calendar response due date
Sub-Service Declaration of Diligence and POS (What must be done)
After mailing complaint and summons, person who served docs must write/sign a declaration of diligence, describing the different times and places they made unsuccessful attempts to serve docs personally
Server returns to you both a written/signed copy of the declaration of diligence and a filled-out/signed POS.
You then make copies of both documents for the office, and file them with the court
