Pleadings

Question 1

Purpose of pleadings

Answer 1

The purpose of pleadings is to communicate with the opposing party and the court.

Question 2

Notice pleading

Answer 2

Federal courts use notice pleading, the goal of which is to provide the opposing party with reasonable notice of the nature and scope of the claims being asserted.

Question 3

Fact Pleading

Answer 3

California courts use fact pleading, which is also called code pleading and is more specific than notice pleading.

Question 4

Rule 11

Answer 4

Rule 11 requires all attorneys or a party representing himself to sign all pleadings, written motions, and papers, certifying that the paper is proper, the legal contentions are warranted by law, and the factual contentions have evidentiary support.

Question 5

Rule 11 Sanctions

Answer 5

Sanctions may be imposed for violations of this rule.

1. Federal 21- day safe harbor: If a motion for sanctions is served, the party has 21 days to withdraw or correct the pleadings giving rise to the sanctions.
2. California does not have a safe harbor rule.

Note: Rule 11 does not apply to discovery documents.

Question 6

Complaint

Answer 6

A complaint is used by a plaintiff to raise issues.

Question 7

Federal complaint

Answer 7

A federal complaint must include

a. Identification of the parties
b. A statement of proper subject matter jurisdiction
c. A statement of the claim showing the factual basis on which plaintiff is entitled to relief. Notice pleading typically only requires stating enough facts to support a plausible claim, however fraud, mistake, and special damages must be pled with specificity.
d. A demand for judgment.
e. The signature of the plaintiff, or his attorney.

Question 8

California Complaint

Answer 8

A complaint in California must include

a. Identification of the parties: However, California allows plaintiffs to sue fictitious “Doe” defendants where the identity of a defendant is unknown.
b. A statement of the claim, including a “statement of facts constituting a cause of action, in ordinary and concise language.” Since California uses fact pleading, this requires pleading the specific facts supporting every element of each legal theory alleged.
c. A demand for judgment , including the amount of damages sought, unless the damages sought are for actual or punitive damages for a personal injury or wrongful death action.
d. The signature of the plaintiff, or his attorney.

Question 9

Response

Answer 9

Rule 12 requires a defendant to respond by either a motion or by an answer within 21 days after service of process (or within 60 days if service waived). California allows 30 days to respond.

Question 10

Motion for a more definite statement (Pre-answer motion)

Answer 10

Motion for a more definite statement is used where the complaint is too vague. i. California: This would be done by a special demurrer on the grounds the pleading is uncertain.

Question 11

Motion to strike (Pre-answer motion)

Answer 11

Motion to strike aimed at pleadings containing immaterial or redundant issues (e.g., demand for a jury trial when there is no right to one). California also has an Anti- SLAPP (Anti- Strategic Lawsuits Against Public Participation) motion to strike targeting suits brought to chill the valid exercise of free speech and petition. A defendant can make an Anti- SLAPP motion to strike, which shifts the burden to the plaintiff to show a probability of winning on the merits.

Question 12

Federal Rule 12(b) defenses (Pre-answer motion)

Answer 12

Federal Rule 12(b) defenses (these can be raised by a preanswer motion or in the answer)

i. Lack of subject matter jurisdiction: This can be raised anytime before all appeals are exhausted.
ii. Lack of personal jurisdiction: This must be raised in the first response or is deemed waived.
iii. Improper venue: This must be raised in the first response or is deemed waived.
iv. Insufficient process (something is wrong with papers): This must be raised in the first response or is deemed waived.
v. Insufficient service of process: This must be raised in the first response or is deemed waived.
vi. Failure to state a claim on which relief can be granted: This can be raised anytime until the trial is concluded.
vii. Failure to join an indispensable party: This can be raised anytime until the trial is concluded.

Question 13

California demurrer (Pre-answer motion)

Answer 13

California demurrer (general or special) is typically used to respond to the complaint.

Question 14

General demurrer

Answer 14

General demurrer (1) Pleadings failed to state facts sufficient to constitute a cause of action. (2) Court lacks subject matter jurisdiction.

Question 15

Special demurrer

Answer 15

Special demurrer is only allowed in cases classified as unlimited (thus, not allowed in those classified as limited). These issues can also be raised in the answer. A special demurrer may be based on

(1) Uncertain pleading (similar to a federal motion for a more definite statement).
(2) Complaint is unclear about which theories of liability are asserted against each of the defendants.
(3) Lack of legal capacity.
(4) Existence of another case between plaintiff and defendant on the same cause of action.
(5) Defect or misjoinder of parties.
(6) Failure to plead whether a contract is oral or written.
(7) Failure to file a required certificate (e.g., for professional negligence claim).

Question 16

California: Motion to quash service of summons: (Pre-answer motion)

Answer 16

This is done by means of a special appearance and must be made separately from the answer. This motion must be made either before or concurrently with the filing of the demurrer or motion to strike or the answer, or the following defenses are deemed waived:

i. Lack of personal jurisdiction: Unlike in federal court, personal jurisdiction must be raised fairly immediately or it is waived.
ii. Insufficient process (something is wrong with the papers).
iii. Insufficient service of process.

Question 17

Pleadings

Answer 17

Pleadings are the documents that set forth the claims and defenses to a case.

Question 18

Answer

Answer 18

An answer is the defendant’s response to the complaint. A defendant must respond within 21 days after service of process (or within 60 days if service waived). California allows 30 days to respond.

Question 19

Defendants Response in Answer

Answer 19

The defendant must respond to the allegations by denying them, admitting them, or stating he lacks sufficient information to do either (failure to deny can operate as an admission). The defendant must also assert any affirmative defenses in the answer.
California: Fact pleading requires factual detail regarding each legal element when asserting affirmative defenses.

Question 20

Amended pleadings

Answer 20

A plaintiff has a right to amend once before the defendant responds. A defendant has a right to amend once within 21 days of serving his answer. Otherwise, a party must seek leave of court to amend, which the court will grant if justice so requires.

Question 21

Relation back doctrine

Answer 21

Amends back to the date of the original filing.

1. Amended claims “relate back” (after the statute of limitations has run) if they concern the same conduct, transaction, or occurrence as the original pleading.
2. Amended defendants “relate back” if
   a. They concern the same conduct, transaction, or occurrence as the original complaint;
   b. The new party knew of the original action within 120 days of its filing; and
   c. The new party also knew that, but for a mistake, she would have been named as a defendant in the original complaint.

Question 22

California “Doe” Amendments

Answer 22

If a plaintiff substitutes a named defendant for a “Doe” defendant within three years of the filing it “relates back.” If the original complaint contained allegations against “Doe” defendants, the plaintiff can amend and add the real defendants if the plaintiff was genuinely ignorant of the

1. Identity of the fictitiously named defendants; or
2. The facts giving rise to the cause of action; or
3. The fact that the law provides a cause of action.