PLEADINGS

Question 1

Basic idea of pleadings

Answer 1

Timing and some of the terminology are different from federal court.

Question 2

Frivolous litigation. There are two general statutes in state practice.

Answer 2

1. California has a statute that mirrors Federal Rule 11. It works just like Federal Rule 11mwith one exception:
   
   • Different from federal court: the 21-day safe harbor applies not only in motions brought by a party, but also when the court raises the issue on its own.
2. Another statute allows the court to order a party/attorney (or both) to pay expenses and attorney’s fees incurred because of bad faith or frivolous tactics in litigation.

Question 3

“Frivolous” means:

Answer 3

something raised was completely without merit or asserted for the sole purpose of harassing an opposing party.

There is no safe harbor - you can file the motion immedietly

There must be a motion (by party or the court) and opportunity to be heard.

Question 4

Complaint. California has always followed “fact pleading.” Requirements for its Contents:

Answer 4

1. Statement of facts constituting the cause of action, stated in ordinary and concise language.
   
   • Fact means the ultimate facts constituting the COA
2. Demand for judgment for the relief to which the pleader claims to be entitled.

Question 5

Must P allege subject matter jurisdiction?

Answer 5

No - thats only for Federal Ct

Question 6

Remember in a limited civil case, the caption to the complaint must state…

Answer 6

it is a
limited case.

Question 7

If P seeks damages, must she state the amount?

Answer 7

Generally Yes

Question 8

in what kinds of cases is P forbidden from stating a damages amount in the complaint?

Answer 8

1. Personal Injury
2. Wrongful Death
3. Seeking Punative Damages

Question 9

So in a personal injury or wrongful death case, how can D find out about the amount of actual damages?

And anytime there’s a claim for punitive damages, how
does D find out about the amount?

Answer 9

1) D requests a statement of damages (SOD); and
2) the P must provide the SOD within 15 days

Question 10

If P fails to provide the SOD, D can…

Answer 10

move for a court order requiring P to do so.

Question 11

Also, in personal injury or wrongful death cases, and anytime P seeks punitive damages, what must P do before taking D’s default?

Answer 11

Must serve an SOD on the D

Question 12

Remember the requirement of “fact pleading.” What does this mean for the plaintiff? She must allege the:

Answer 12

1) ultimate facts
2) on each element
3) of each cause of action

Question 13

Heightened pleading requirements.

Answer 13

1. circumstances constituting fraud must be pleaded with particularity.
2. civil conspiracy, tortious breach of contract, unfair business practices, and product liability claims among multiple defendants resulting from exposure to toxins.

Question 14

Fictitious defendants.

Answer 14

If P is genuinely unaware of the identity of a D, she may
name the D as a “Doe” defendant. She must also allege that she is unaware of the D’s true identity and must state the cause of action against the “Doe” defendant (that’s a
“charging allegation”)

Question 15

Verified pleadings.

Answer 15

• These are signed under oath by the party. They are rare, but are required, for example, in shareholder derivative suits and for suits against government
  entities.
• they may be treated as evidence for Summary Judgment