Pleadings and Their Requirements Flashcards
Pleadings and Their Requirements
A pleading is the formal allegation by a party of her respective claims. California is known as a code or fact pleading jurisdiction which requires the pleading of ultimate facts to support each element of the cause of action. Federal court is a notice pleading jurisdiction.
Overview of the Entire Pleading Process
In California, it can be a bit confusing trying to figure out the timeline of events. Let me walk you through the entire pleading process:
1) To initiate a lawsuit, the plaintiff files a complaint with the court
2) Next, the plaintiff serves the defendant with a summons and a copy of the complaint
3) Before filing an answer, the defendant may file a demurrer attacking the complaint
4) Thereafter, the defendant files an answer to the complaint
5) Additionally, the defendant may, in a separate document, assert a cross-complaint against the plaintiff
6) After this back and forth process is complete, the parties begin discovery
Service of Process in California
In California, the proper manner of service depends on the place where process is to be served (within California, in another state, or outside of the United States) and the type of party to be served (individual, corporation). A person who is at least 18 years of age and not a party to the action may serve the summons and complaint.
Personal Service “Preferred for Individuals”
Personal delivery of a copy of the summons and complaint is the preferred manner of service upon individuals within California. Personal service must be attempted before restoring to substitute service. Personal service is the primary method of service in California. Substitute service is secondary.
1) Substitute service on an individual is authorized only when process cannot with reasonable diligence be personally delivered. Ordinarily two or three attempts at personal service constitutes reasonable diligence. If such efforts are unsuccessful, substituted service is acceptable. This rule only applies to individuals.
2) California allows substituted service on an individual by leaving a copy of the summons and complaint at the person’s: 1) usual place of abode with a competent member of the household – otherwise known as “spouse in the house” service OR 3) usually place of business with an adult apparently in charge.
3) After substituted service is made, the plaintiff must mail a copy of the summons and complaint (by first class mail) to the defendant at the place where service was made.
Service Outside of the United States
Under California law, a plaintiff may serve a defendant in another country: 1) in any manner allowed by California law 2) according to the laws of the country where service was made OR 3) as directed by the court in which the action is pending.
1) The service options are subject to preemption by any applicable treaties or international agreements (Hague Service Convention). In other words, when service is to be effected outside of the United States, California law may only be used if not preempted.
Service by Mail (Return Receipt Required)
California rules allow service by mail to a person outside the United States. An out of state defendant may be served by sending a copy of the summons and complaint by first class mail, postage, pre-paid, requiring a return receipt.
Motion to Quash
In California, the defendant may file a motion to quash service on the grounds that the court does not have personal jurisdiction over him or that service of process was improper. Once the defendant files a motion to quash, the plaintiff has the burden of proving that service was proper and that the court has personal jurisdiction over the defendant.
1) If the defendant files only an answer to the complaint, he has made a general appearance and has waived the right to assert a challenge based on lack of personal jurisdiction or lack of service of process.
Motion to Dismiss
A motion to dismiss for failure to state a cause of action challenges the sufficiency of the complaint and asserts that it does NOT state enough facts to constitute a cause of action. A court will grant a motion to dismiss only if, taking all of the plaintiff’s allegations as true, there are not enough facts to show that she is entitled to any relief.
Pleading Special Matters
When pleading a fraud, mistake, or special damages, the plaintiff must state with particularity the circumstances surrounding the claim. The failure to plead a special matter means it cannot be raised at trial. Of course, this defect may be cured by an amendment if no prejudice is involved.
1) The rationale for special pleadings is to discourage certain types of disfavored litigation. Fraud suits are disfavored because of the injury they may do to reputations. Thus, it is important the defendant be made aware of what is being claimed.
Methods of Challenging Pleadings (Objections to Pleadings)
Instead of filing an answer, the defendant may attack the sufficiency of the complaint with a general or special demurrer. A demurrer can only be used to challenge defects that appear on the fact of the complaint. Thus, it is a legal objection.
Methods of Challenging Pleadings (Objections to Pleadings) - General Demurrer
In California, a general demurrer may be made on one of two grounds: 1) pleading fails to state facts sufficient to constitute a cause of action AND 2) the court lacks subject matter jurisdiction.
Methods of Challenging Pleadings (Objections to Pleadings) - Special Demurrer
In California, a defendant may file a special demurrer for any of the following reasons: 1) the person who filed the pleading does NOT have the legal capacity to sue 2) there is another action pending between the same parties on the same cause of action 3) there is a defect or misjoinder of parties OR 4) the pleading is uncertain and unintelligible i.e. the pleading is too uncertain for the defendant to be expected to frame an answer. Special demurrers are only available in unlimited civil cases.
1) Keep in mind that even if a demurrer is sustained, the court routinely grants leave to amend.
Answers
In California, the defendant’s answer must contain a general denial (denies every allegation) or specific denial (denies only certain parts of the complaint). The answer must also include any affirmative defenses.
1) The defendant has 30 days to file an answer. If the defendant fails to answer the complaint, the court can enter a default judgment.
2) A demurrer tests the legal sufficiency of the complaint, while an answer tests the truth of the allegations and the plaintiff’s ability to prove them.
Cross-Complaints
In California, a cross complaint is when the defendant files a claim against the plaintiff. The defendant must file the cross complaint as a separate complaint. It may not be the part of the defendant’s answer. If the defendant’s cause of action arises out of the same transaction or occurrence as the plaintiff’s claim, the defendant must bring cross-complaint (since it’s compulsory) or it will be barred. Any other claim the defendant has against the plaintiff may be asserted as permissive cross complaint.
1) Complaint: when the plaintiff sues the defendant
2) Cross-complaint:: when the defendant sues the plaintiff
Amendments in Pleadings
A pleading may be amended once, as a matter of right, before an answer is filed or a demurrer is heard. Thereafter, the pleading may only be amended with the opposing party’s written consent or by permission of the court. Amendments can occur at any stage of litigation. Since most disputed issues become clearer as the lawsuit progresses, amendments to pleadings are encouraged and permission is liberally granted but should NOT be allowed if it will cause prejudice to the other party.
