Learning about the case Flashcards
Service of process
- defendant must be served with the summons and copy of complaint
How Service is made in CA
• person, home, mail, publication
1. CA: must be made within 60 days of filing, extendable for good cause (+3 days if mailing)
- service can be made by any person at least 18 that is not a party (same as Federal)
- in CA service is proper if service is made:
i. personal service (all non-personal service is called substituted service)
ii. substituted service is possible only if personal service is unavailable
a. service left at defendant’s usual place of abode
i) to a member of the household who is competent and aged 18 or older, and
ii) that person must be is informed of the contents, and
iii) process is also mailed to defendant (first-class mail, postage prepaid)
a) substituted service is deemed effective on the 10th day of mailing
iii. corporations:
a. made by serving an officer, managing or general agent, or authorized agent
b. may be served personally or process left with someone apparently in charge at her office during usual office hours
c. usually just serve registered agent
iv. service by mail: works like Fed. wavier, except considered service not waiver
a. copy of summons, complaint, and two copies of acknowledgment (waiver form) are mailed to defendant with self-addressed stamped envelope addressed to π
i) service by mail in CA must be by the waiver form
b. ∆ has 20 days (instead of 30) to return the form
c. service is deemed complete when ∆ executes the waiver (instead of filing in court)
Service by publication
a. last resort, only available with affidavit from plaintiff’s attorney showing defendant cannot be served ay other way after demonstrating reasonable diligence to serve ∆
How service made outside of CA (but in the US)
• person, home, mail, publication + mail
1. any method of in-state service, or
- by mail, prepaid, return receipt requested
i. return receipt requested = person who delivers the mail to D
ii. vs. in-state mail service mail: much easier, do not need to send a waiver form and have ∆ sign and return it
iii. service is deemed effective on the 10th day after mailing
How service is made outside the US
- same as Federal (int’l agreement, law, foreign official instructions, personal svs, court mail)
- has been tested before
No immunity from service
- no immunity for parties served while in the state to be a witness or party to a civil case
- but party would still be immune from service for a federal case
Subsequent documents
- service of other documents (motions, answer, interrogatories, etc.)
- non-formal: service if delivered, mailed, or emailed (if parties agree)
- timing: if mailed, add 5 days to time required for response, or 10 days if out of state (vs. 3 days for federal)
Plaintiff’s complaint contents
- requires: pleading must include fact pleading, demand for judgement, and caption
i. caption—if limited claim must state as much.
ii. claim
iii. ultimate facts: must allege the ultimate facts on each element of each cause of action
a. only include ultimate facts, not every detail.
b. unlike Fed, no need to show facts that if true would support a plausible claim
iv. demand for judgment
a. if damages sought, generally must state a dollar figure
b. exception: must not state a damages figure in personal injury or wrongful death cases, or any case where punitive damages are claimed
i) SOD: upon request in these three cases, ∆ can request a statement of damages (to assess their liability)
a) π must provide SOD within 15 days
b) ∆ can move to compel π to provide the SOD if π fails to do so
c) SOD must be served on defendant before a default can be entered against ∆ in these three cases
v. No need to plead SMJ.
- heightened must plead with particularity required for fraud
i. also required for civil conspiracy, tortious breach of contract, unfair business practices, and product liability claims among multiple defendants resulting from exposure to
π’s complaint - Fictitious defendants
- a plaintiff who is genuinely unaware of the identity of a defendant may name the defendant as a “doe” defendant (one of multiple ∆s for ex)
- requirements: plaintiff must state
i. they are unaware of the defendant’s true identity
ii. the cause of action against the unknown defendant (“charging allegation”) - important with statute of limitations issues
π’s complaints - verified pleadings
- pleadings signed under oath
i. required for shareholder derivative or government suits. - can be treated as evidence for summary judgment (same as federal)
i. treat like affidavit
∆’s response
- defendant can respond by filing an answer, demurrer, or motion
- responsive pleadings must be filed within 30 days of service of process (federal court is 21 days)
∆’s response - motion to quash service of summons
- used to assert the following defenses:
i. lack or personal jurisdiction
ii. improper process (problem with summons or complaint)
iii. improper service of process - note: improper venue must also be asserted before or with any demurrer, answer, or motion to strike
∆’s response- motion to quash service of summons – is making a special appearance
motion to quash does not constitute consent to personal jurisdiction
b. motion to quash must be made before or with demurrer, answer, or motion to strike
demurrer, answer or motion to strike waive the three motion to quash defenses(lack of pj, improper process, improper service + improper venue (not quash))
c. party makes a special, not general, appearance if the motion to quash is filed with the answer, demurrer, or motion to strike
ii. general appearance:
a. any appearance that engages the merits, or asks court for relief
i) ex. answer, demurrer, motion to strike, motion to transfer venue, or motion to reclassify case
c. constitutes consent to personal jurisdiction
∆’s response – if a court denies motion to quash
i. defendant must plead (including demur) within 15 days
ii. defendant cannot wait until final judgment to appeal: the only way to appeal a denial of motion to quash is to seek a writ of mandate at the court of appeal
∆’s response – Motion to Dismiss or Stay for Inconvenient Forum (Forum Non Conveniens)
- waived if raised after demurrer or motion to strike, but can be raised after answers