Pleadings - Ds Response, Claims by D, Amended Pleadings

Question 1

Defendant’s response

Answer 1

Defendant must respond in an appropriate way within 30 days after service of process is deemed complete. (Federal court it’s 21 days after service.)

Question 2

Types of Responses for D:

Answer 2

1. General demurrer
2. Special demurrer
3. Motion to quash service of summons
4. Motion to dismiss or stay for inconvenient forum (forum non conveniens).
5. Motion to strike.
6. Answer

Question 3

General demurrer. This can used to assert some defenses. Which is the most important?

Answer 3

Failure to state facts sufficient to constitute a cause of action

So the court takes factual allegations as true and limits its
assessment to the complaint (and matters of which it takes judicial notice). If sustained, usually the court will let P try again.

Question 4

What else can be raised by general demurrer?

Answer 4

Lack of Subject Matter Jurisdiction

Question 5

Is a general demurrer considered a pleading?

Answer 5

Yes, but it acts like a motion (it can get the case dismissed) - there is no motion to dismiss in State action

Question 6

Special demurrer. This can be used to assert many (pretty minor) defenses like:

Answer 6

The complaint is uncertain, ambiguous or unintelligible.

As with the general demurrer, the court treats allegations of fact as true and limits assessment to what’s in the complaint (and matters of judicial notice).

Question 7

Examples of how to apply special demurrer:

Answer 7

1. Lack of legal capacity.
2. Existence of another case between the same parties on the same cause of action.
3. Defect or misjoinder of parties.
4. Failure to plead whether a contract is oral or written.
5. Failure to file a “certificate of merit.”

Question 8

Failure to file a “certificate of merit.”

Answer 8

This is required to sue architects, engineers, or land surveyors for professional negligence. In such cases, P’s attorney must file a certificate stating that she consulted with a professional and there is reasonable cause to
file the case.

Question 9

Can these special demurrer defenses be raised in the answer as well?

Answer 9

Yes - as affirmative defense except the failure to file certificate of merit

Question 10

What if the special demurrer defenses are not raised by demurrer or answer?

Answer 10

They are waived

Question 11

Is a special demurrer considered a pleading?

Answer 11

Yes

Question 12

In what cases are special demurrers not available?

Answer 12

In limited civil cases

Question 13

Motions are either “granted” or “denied.” What about demurrers?

Answer 13

They are sustained or overruled

Question 14

Motion to quash service of summons.
– This is used to assert what defenses?

Answer 14

1) Lack of PJ
2) Improper process (improper documents)
3) Improper service of process

Question 15

What do we call Motion to quash service of summons?

Answer 15

You are making a special appearance

Question 16

Timing of Motion to quash service of summons

Answer 16

THIS MOTION MUST BE MADE BEFORE OR WITH A DEMURRER, ANSWER, OR A MOTION TO STRIKE. IF NOT, THE DEFENSES ARE WAIVED!

Question 17

If the court denies the motion to quash, D must “plead” within:

Answer 17

15 days

And because demurrer is a pleading, you could demur or answer within 15 days.

Question 18

The only way to seek appellate review of the denial of the motion to quash is:

Answer 18

to seek a writ of mandate

Question 19

Motion to dismiss or stay for inconvenient forum (forum non conveniens). What is the timing for bringing this motion?

Answer 19

It is waived if it raised after a demurrer or motion to strike; you can make this motion after an answer

Question 20

Motion to strike.

Answer 20

A party can file this to strike all or part of any pleading. The court may strike “irrelevant, false, or improper matter.”

Question 21

Anti-SLAPP motion to strike.

Answer 21

The legislature is concerned about strategic lawsuits
against public participation (SLAPP). These are suits brought to chill the valid exercise of First Amendment rights (e.g., speech, petition of government).

Question 22

Because so many anti-SLAPP motions were made, the legislature limited availability of the motion. So D is not supposed to make the motion if P’s case is truly in the public interest or on behalf of the general public.

The motion should not be made if…

Answer 22

P is enforcing a public right

Question 23

Answer. This is like the answer in federal court.
– General denial:

Answer 23

this is a short document, in which D simply denies each and every allegation of P’s complaint. This is permitted if D can do so consistent with rules about frivolous litigation.

Question 24

In stating affirmative defenses, D must:

Answer 24

state the ultimate facts sufficient to constitute an affirmative defense

Question 25

If P filed a verified (under oath) complaint….

Answer 25

D must file a verified answer

Question 26

Can an answer include a demand for recovery against P, e.g., damages?

Answer 26

No - you need a cross-complaint

Question 27

Timing for Answer

Answer 27

No later than 30 days after service of process is deemed complete, D must (to avoid default) answer or demur or make one of the motions noted.

Question 28

Claims by Defendant. As in federal court, D can assert a claim:

Answer 28

(1) against the plaintiff (an opposing party),
(2) against a co-defendant, or
(3) against an impleaded third-party defendant.

Question 29

In California state courts, all three of these claims by Ds have the same name. What are they all called?

Answer 29

Cross-complaints

Question 30

How should cross-complaint be placed in relation to the answer?

Answer 30

The cross-complaint must be a separate document from the answer

Question 31

Timing for Cross-Complaint against P in relation to answer

Answer 31

This is to be filed before or at the same time as
the answer.

Question 32

Cross-Complaint against P

Answer 32

It is against an opposing party (e.g., D v. P).

Question 33

What if the cross-complaint by D against P arises from the same transaction or occurrence as P’s cause of action against D?

Answer 33

It is compulsory - so you must file it in this case

Question 34

What if the cross-complaint by D against P does not arise from the same T/O as P’s cause of action?

Answer 34

It is permissive - so it may be filed in this case, but you don’t have to at all

Question 35

Timing for Cross-Complaint against co-party.

Answer 35

May be filed anytime before the court has set a trial date.

Question 36

Cross-Complaint against co-party Rules

Answer 36

1. It is a claim against a co-party, by a defending party.
2. It must arise from the same T/O as the underlying dispute.
3. It is never compulsory. The party may assert it here as a cross-complaint or may sue in a separate case.

Question 37

Cross-Complaint against third-party defendant (TPD) Timing

Answer 37

Like federal impleader (third-party complaint). May be filed anytime before the court has set a trial date. It is never compulsory – so you don’t have to file it.

Question 38

The person against whom any cross-complaint is asserted must do what?

Answer 38

Respond within 30 days

Question 39

If the cross-complaint is asserted against one who has not yet appeared in the case….

Answer 39

it must be served with summons.

Question 40

Amending pleadings.

Answer 40

Plaintiff has a right to amend (as a “matter of course”) before defendant answers or demurs.

After demurrer but before hearing on the issue raised by demurrer, any party has a right to amend once.

Beyond that, amendment is same as in federal court.

Any party can seek leave to amend anytime.

Question 41

If the court sustains a demurrer or grants a motion to strike, the court will usually do so “with leave to amend.”

This allows P to…

Answer 41

try again

Question 42

If the court sustains a demurrer or grants a motion to strike “without leave to amend,”….

Answer 42

P cannot try again

Question 43

Relation back and fictitious defendants. Relation back is OK if:

Answer 43

1. Original complaint was filed before the statute of limitations ran and contained charging allegations against the fictitious defendant(s).
2. P was genuinely ignorant of the identity of the Doe defendant(s) and
3. P pleaded that ignorance in the original complaint.