Pleadings CA Flashcards
Frivolous Litigation
TWO STATUTES regarding frivolous litigation in California state practice:
FIRST STATUTE:
California has a statute that mirrors Federal Rule 11 (I.e., lawyer certifies that, to the best of their knowledge and after reasonable inquiry, the paper is not for an improper purpose, legal arguments are non-frivolous, facts are supported with evidence etc.) An offending party has 21 days to fix any issues without being subject to sanctions.
CA rule is the same with one exception: the 21-day safe harbor provision ALSO applies when the court raises the issue on its own.
SECOND STATUTE:
The court may order a party to pay expenses and attorney’s fees incurred because of bad faith or frivolous tactics in litigation.
There must be a motion (by a party or the court) and an opportunity to be heard. The 21-day safe harbor applies here too.
What does “frivolous” mean?
“Frivolous” means something raised was completely without merit or asserted for the sole purpose of harassing an opposing party.
Contents of Complaint in CA
There must be a statement of facts constituting the cause of action, stated in ordinary and concise language.
Facts mean the “ultimate” facts (i.e., what the jury or judge as a fact-finder must find for the party to prove its case)
There must be a demand for judgment/relief that the pleader claims to be entitled.
P DOES NOT need to allegeSMJ
If a limited civil case, the caption to the complaint must state it is a limited case.
Pleading Damages in the Complaint (CA)
Plaintiff generally must state the amount claimed.
EXCEPTIONS:
- A plaintiff is forbidden from stating a damages amount in a personal injury or wrongful death action.
- Whenever the plaintiff claims punitive damages, she is forbidden from stating the amount in the complaint.
If the Plaintiff brings a case for PI, Wrongful Death, or Punitive Damages, how can a defendant find out about the amount of actual damages?
D requests statement of damages (“SOD”), which the plaintiff must provide within 15 days.
If the plaintiff fails to provide the SOD, the defendant can move for a court order requiring her to do so.
P must serve SOD on defendant before taking the defendant’s default.
What is the “fact pleading” requirement?
The pleader must allege the ultimate facts (i.e., what the jury or judge as a fact-finder must find for the party to prove its case) on each element of each cause of action.
Heightened Pleading Requirement
These circumstances must be pleaded with particularity:
- Fraud,
- Civil conspiracy,
- Tortious breach of contract,
- Unfair business practices,
- Products liability claims among multiple defendants resulting from exposure to toxins.
When does D need to respond?
California: D must respond in an appropriate way within 30 days after service of process is deemed complete.
Federal court is 21 days after service
What is a General Demurrer?
A pleading used to assert defenses to a complaint. The most important type of general demurrer is one based on a failure to state facts sufficient to constitute a cause of action.(Can also assert lack of SMJ).
The demurrer asks: If these facts were true, would the plaintiff win? If yes, demurrer overruled. If the general demurrer is sustained, the court will usually let the plaintiff try again to state a cause of action.
NOTE: Defenses can also be raised in the answer as an affirmative defense, or raised in a motion for judgement on the pleadings if it is raised after D has already pleaded and the time for demurrer has expired.
What is a Special Demurrer?
A special demurrer can be used to assert many (pretty minor) defenses:
* The complaint is uncertain, ambiguous, or unintelligible (like federal motion for more definite statement)
- The complaint is unclear about which theories of liability are asserted against each of the defendants
- The lack of legal capacity
- The existence of another case between the same parties on the same cause of action
- A defect or misjoinder of parties
- The failure to plead whether a contract is oral or written.
D can raise these various defenses in his answer as affirmative defenses. If the defendant does not raise these defenses by demurrer or answer, they are waived.
What is a Motion to Quash Summons
Used to assert:
(1) a lack of PJ
(2) improper process, and
(3) improper service of process.
Movant is making a special appearance with this motion (contrasted with a “general appearance”)
What is a General Appearance?
A general appearance is one that engages the merits of the case or asks the court for relief (e.g., an answer, a demurrer, a motion to strike)
A general appearance constitutes consent to (1) PJ, (2) improper process, and (3) improper service of process.
NOTE: Unlike in Federal Court, where lack of PJ can be asserted in the first Rule 12 response, in CA D waives the defense of lack of personal jurisdiction by making a general appearance.
Instead, D can file a motion to quash service of summons at the same time as a demurrer, answer, or motion to strike. That is not a general appearance.
What happens in a court denies a motion to quash?
If the court denies the motion to quash, the defendant must “plead” within 15 days.
Since a demurrer is a pleading, you could demur or answer within 15 days.
How to appeal a motion to quash?
The only way to seek appellate review of the denial of the motion to quash is to seek writ of mandate from the court of appeal.
What is the timing for bringing a motion for inconvenient forum (forum non conveniens)?
The motion is waived if it is raised after a demurrer or motion to strike. The motion may be made in the defendant’s answer.
