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
∆’s response – general demurrer
- general demurrer is considered a pleading, but acts like a motion (bc it can get the case dismissed). like a motion to dismiss.
i. lack of SMJ
ii. failure to state sufficient FACTS to constitute a cause of action
b. court will take allegations as true a (and facts of which it took judicial notice)
c. if demurrer is sustained, court will usually let plaintiff try again
- these defenses can also be raised in the answer as affirmative defenses, or in motion for judgment on the pleadings (after answer filed and time for demurrer has expired)
i. just like 12b6 motion to dismiss can be raised. and you don’t lose your right to assert lack of SMJ or failure to state a claim.
∆’s response– special demurrer
- not available in limited civil cases
types of special demurrers
i. defect or misjoinder of parties
ii. existence of another case between the same parties on the same cause of action
iii. lack of legal capacity
iv. complaint is uncertain, ambiguous or unintelligible (rare; similar to FRCP motion for more definite statement)
v. complaint is unclear which theories of liability are asserted against each defendant
vi. failure to plead whether a contract is oral or written
vii. failure to file a certificate of merit
a. only if suing architects, engineers, or land surveyors for professional negligence
b. plaintiff’s attorney must file a certificate stating that she consulted with a professional and there is reasonable cause to file the case
c. lack of certificate can also be raised in a motion to strike
- court will take allegations as true and limits its assessment to the complaint (and facts of which it took judicial notice)
- objections not addressed by demurrer or affirmative defense in answer are waived
- these defenses can also be raised in the answer as affirmative defenses, except the failure to file certificate of merit (only special demurrer or motion to strike)
∆’s response – motion to strike
- can be raised to strike all or part of a pleading
- usage:
i. to strike irrelevant, false, or improper matter
ii. to strike complaint against an architect, engineer, or land surveyor where no certificate of merit is filed (instead of entering a special demurrer)
iii. anti-SLAPP motion to strike: (anti-strategic lawsuits against public participation)
a. ∆ must show:
i) silencing speech: suit was brought to chill a valid exercise of 1st Am. rights
ii) AND no public purpose: π is not suing to enforce an important public right or to confer significant benefits on the public
b. burden shifts to the plaintiff to show the probability of winning on the merits
c. if the motion to strike is granted, ∆ can also sue plaintiff for malicious prosecution. Slap-back suit.
∆’s response – other rules for demurrers– meet and confer
- at least 5 days before filing any demurrer, the parties must meet and confer (to try to work things out and avoid the demurrer)
i. 30-day extension for defendant to answer or demur (30 + 30, after served) if
a. parties can’t meet and confer in given time frame (30 days to demur, meet 5 before)
b. defendant files and serve a declaration under oath on or before the demurrer due date stating:
i) why parties could not meet and confer, and
ii) that good faith effort was made to was made to meet and confer - if the parties meet and confer and defendant files the demurrer:
i. defendant must include a declaration under oath stating
a. either that the parties met and could not resolve the issues, or
b. the other party failed to meet and confer in good faith
∆’s response – other rules for demurrers– raise all issues
- defendant must demur all available issues at once
- i.e. if a demurer is sustained and plaintiff amends complaint, defendant cannot demur to the amended complaint on grounds that were available to attack the first complaint
∆’s response – other rules for demurrers– terminology
- demurrers are either sustained or overruled
∆’s response – other rules for demurrers– summary of order
- motion to quash (special appearance), venue
- answers
- forum non conveniens
- demurrers, motion to strike
∆’s response – answer
- similar to federal court
- timing: all defensive responses must be filed within 30 days of service of process
i. must answer, demur, or make a motion to avoid default - if plaintiff filed a verified complaint, defendant must file a verified answer (under oath)
- affirmative defenses: answer must state the ultimate facts sufficient to constitute the affirmative defenses
- defendant cannot include a demand for recovery against plaintiff in the answer, must file a separate document called a cross-complaint
Cross complaint generally
- cross-complaints cover counter-claims, cross-claims, and claims v. impleaded third parties
i. must be a separate document from the answer
Cross complaint against π
i. like federal counterclaim, except it is a separate document
ii. must be filed before or at the same time as the answer
iii. compulsory if arising from the same transaction or occurrence, waived if not filed
iv. not compulsory if not arising from same T/O (bar: don’t call it permissive)
Cross-complaint against co-party
i. like federal cross-claim
ii. timing: may be filed any time before trial date
iii. must arise from the same transaction or occurrence
iv. never compulsory; the party may sue on this in a separate case
Cross-complaint against a ∆ co-party
i. timing: may be filed any time before trial date
ii. like federal impleader, usually for indemnity or contribution
iii. never compulsory
Cross complaints requirements
i. service: service of cross-complaint to a non-party must also include a summons
ii. response: the party against whom the cross-complaint is filed must respond within 30 days of service of process
Post-answer – π’s reply
- plaintiff must reply to defendant’s answer if court requires
- no need to reply to affirmative defenses
Post-answer- amendments, supplemental pleadings
i. π has a right to amend
a. before answer is filed or before demurrer is filed, or after demurrer is filed but before hearing on the demurrer (by the date for filing opposition to demurrer)
- leave to amend: any party can seek leave to amend at any time
- demurrer
i. π can try re-plead if court sustains a demurrer or grants a motion to strike with “leave to amend” (usual response)
ii. a complaint or cross-complaint can be amended up to three times in response to the court sustaining a demurrer, unless claimant shows additional facts to be pleaded to cure the problem - other rules about amendments (variance, relation back) are the same
Post-answer- amendments, supplemental pleadings, relating back and fictitious defendants
- relation back and fictitious defendants:
i. relation back is permissible if:
a. original complaint filed before the statute of limitations ran
b. π was genuinely ignorant of doe defendant(s)’ identity
c. π pleaded ignorance in the original complaint
d. original complaint contained charging allegations against fictitious defendant(s)
ii. if π substitutes the true defendant within three years of filing, it relates back
a. can substitute in true defendant up to three years after statute of limitations has run
Post-answer- frivolous litigation statutes
- first statute
i. works just like Rule 11 (proper purpose, existing law or modification, evidence for facts, evidence or diligence for denials)
ii. CA modification: opponent has 21 days to withdraw or correct the matter regardless of if the sanctions motion is brought by opponent or raised sua sponte
a. under Federal rules, 21 day safe harbor only if motion raised by opponent - second statute
i. applies if there is bad faith (sole purpose is to harass) or frivolous (completely without merit) tactics in litigation (completely without merit or asserted for the sole purpose of harassing an opponent)
ii. no safe harbor, so motion can be filed immediately
iii. court can order a party or their attorney (or both) to pay for expenses and attorney’s fees incurred because
iv. must have proceeding and opportunity to be heard.
