Pre-Trial Pleadings and Issues (Writing Template) Flashcards
Pleadings
Federal courts use notice pleading. The pleading must put the opposing party on notice of the claim. CA uses fact pleading, meaning the complaint must include a plain and concise statement of the facts constituting a cause of action. Here,
Complaint
The complaint must include the following: 1) a statement of SMJ, 2) a statement of the claim and 3) a 30 day demand for relief.
Answer
Federal courts require that an answer contain specific denials or admission of each averment or a general denial with specific admissions. The answer must also contain affirmative defenses and is due 21 days after service.
CA courts allow for a general denial, unless responding to a verified complaint. The answer must be answered within 30 days from service. Here,
CA - Rule 12 Motion (6)
1) The “use it or lose it defenses” are: PJ, Service, Service of process, and Venue.
2) The defenses that may be raised for the first time at the end of the trial are: Failure to state a claim and failure to joint an indispensable party.
3) The defense that can be raised for the first time on appeal is lack of SMJ. Here,
Lack of IPJ must be raised by a motion to quash service of summons or motion to set aside default. Here,
4) Lack of SMJ must be raised by means of a general demurrer, motion for judgment on the pleadings, or motion for reclassification. Here,
5) Failure to state a claim must be raised by a general demurrer or motion for judgment on the pleadings.
6) Failure to join a required party must be raised by special demurrer. Here,
CA - Anti SLAPP Motion to Strike
CA has a second motion to strike when the P has filed a “strategic lawsuit against public participation” D must make a threshold showing that cause of action in the complaint arose from the protected activity such as the right to free speech. IF a showing is made, burden shifts to P to show probability of prevailing on the merits.
CA - SLAPP Back Motion
A defendant who prevails on an Anti SLAPP motion may bring a SLAPP Back motion, i.e. a cause of action for malicious prosecution.
Amendment of Right
P has the right to amend once within 21 days of filing complaint. D also has right to amend once within 21 days of filing the answer. Here,
No Right to Amend
After 21 days, neither party has the right to amend, however, the party may receive court approval to amend “if justice so requires” Here,
Relation Back Doctrine - Adding Claims
Amendments that add a claim relate back to the date that the original pleading was filed when the new claim relates to the same transaction or occurrence set forth in the original pleading. Here,
Relation Back Doctrine - Adding New Parties
New parties may be added if the party has received notice of the action so that he will not be prejudiced in maintaining his defense on the merits and knew or should have known that, but for a mistake concerning the proper party’s identity, the action would have been brought against him. However, these requirements must have occurred within 120 days of filing the original complaint. Here,
CA - Relation Back - Doe Defendants
CA allows plaintiffs to sue fictitious “Doe” defendants and amend the complaint to substitute true names later. This is a much looser standard than the federal relation back standard. Here,
