Service and Pleadings Flashcards
Personal service
valida nywhere in the state
Substituted Service
can only use substituted service if personal service CANNOT BE HAD WITH REASONABLE DILIGENCE. Must try personal service first.
Requirements: (1) must be made at D's usual abode; (2) must be left with a competent member of the household who is AT LEAST 18; (3) that person must be INFORMED OF THE CONTENTS; (4) and process must also be MAILED by first class mail, postage prepaid to D
Effectiveness of substituted service
deemed effective 10 days after the mailing
Serving a corporation
Deliver process to agent or to an officer or general manager.
Service by mail
Same requirements as waiver, except in CA, this is considered SERVICE and not WAIVER OF SERVICE
D has 20 days (not 30) to return the form and service is deemed complete when D executes the waiver form
Service by Publication
Only available upon an affidavit from P’s attorney showing that D cannot be served in a reasonably diligent way in some other way
absolute last resort
Service outside CA
Service may be had in any manner allowed by CA law or by mail
NOTE: if by mail, deemed complete the 10TH day after mailing
Immunity
CA state courts DO NOT recognize immunity from service of process when D is in CA to participate in litigation
Subsequent pleadings
As in federal court, can be delivered or mailed
If mailed, add 5 DAYS to time required for response (Fed court we add 3)
Frivolous Litgiation
CA has statute that mirrors Rule 11, with one exception: 21 day safe harbor applies not only in motions, but also when the court raises the issue on its own
Another statute allows court to order party/attorney to pay expenses and attorneys fees because of BAD FAITH or FRIVOLOUS tactics in litigation
NOTE: no safe harbor if frivolous or bad faith. Can file immediately
Complaint
Requirements:
(1) Statement of Facts constituting the cause of action, stated in ordinary and concise language; and
(2) demand for judgment for the relief to which the pleader claims to be entitled
Differences with FRCP: NO NEED TO ALLEGE SMJ*, but limited civil cases’ caption must state it is a limited case
Damages in Complaint
If Complaint seeks damages, generally must state the amount
EXCEPTION: personal injury and wrongful death, P is FORBIDDEN from stating a damages amount
EXCEPTION 2: when P claims punitive damages, she is forbidden from stating the amount in the complaint
Statement of Damages
If claim for punitive damages or in a wrongful death/personal injury case, D must request a statement of damages and P must provide it within 15 DAYS
heightened pleading requirements
Fraud, civil conspiracy, tortious breach of K, unfair business practices, and product liability claims
Fictitious Defendants
If P is genuinely unaware of identity of a D, she may name D as “DOE”
Must allege she is unaware of D’s identity and must state the cause of action against “doe”
Defendant’s response timing
D must respond within 30 DAYS after service of process is deemed complete (Fed court is 21 days)
General Demurrer
Used to assert that (1) Court lacks SMJ*, or (2) pleading fails to state facts SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION
NOTE: SMJ* is not a big deal b/c unlimited civil cases have almost unlimited SMJ*
Special Demurrer
Used to assert (1) lack of legal capacity to sue; (2) the existence of another pending action between the same parties on the same cause of action; (3) defect or misjoinder of parties; (4) uncertain, ambiguous, or unintelligible pleadings (similar to motion for more definitive statement); and (5) failure to plead whether K was written or oral ; and (6) failure to file a certificate of merit (required to sue architects, engineers for professional negligence)
VERY NARROW. NO SPECIAL DEMURRERS MAY BE FILED IN A LIMITED CASE
Motion to Quash Service of Summons
Used to assert (1) Lack of PJ*; (2) improper process; or (3) Improper service
MUST BE MADE BEFORE OR WITH A DEMURRER, ANSWER, OR MOTION TO STRIKE. OTHERWISE, WAIVED.
AKA “making a special appearance.”
If denied, D must “plead” within 15 DAYS
Motion to Strike
party can file to strike all or part of a complaint
Court may strike “irrelevant, false, or improper matter”
Must be done before responding to the pleading
Anti-SLAPP motion to strike
legislature is concerned about Strategic Lawsuits Against Public Participation (suits brought to chill the valid exercise of First Amendment Rights)
D must make threshold showing that CoA in the complaint arises from First Amendment protected speech. If D makes showing, burden shifts to P to show a probability of prevailing in the merits (very favorable to Ds)
Exemptions: actions brought in the public interest or to enforce a public right, or actions against sellers of G/S for business representations
SLAPP BACK motion
D who prevails on an anti-slapp motion may bring a slapp back motion, which is essentially a cause of action for malicious prosecution
Answer
Just like fed rules
General Denial, short document denying every allegation
Specific denials
If p files verified complaint, D must file verified answer that contains specific denials
Timing for Answer
no later than 30 DAYS after service of process is deemed complete
If filed a demurrer or motion to strike and court overturned, D must file answer within 10 days
Cross complaints
in CA, all D’s claims against p, co-defendant, impleaded party are deemed cross-complaints
Cross-Complaint against P
Similar to federal counterclaim, exept not part of answer.
Must be filed BEFORE or at the SAME TIME as the answer in a separate document
Still compulsory if same TOO
Cross-Complaint against co-party
similar to crossclaim. May be filed ANYTIME before court has set a trial date
Must arise from same TOO, never compulsory
Cross Complaint against third party defendant
Like federal impleader. May be filed anytime before court has set a trial date. Never compulsory.
Person against whom cross-complaint is asserted has 30 DAYS to answer
Amending Pleadings
P has right to amend before D answers or demurs.
After demur but before hearing on the issue raised by demurrer, any party has a right to AMEND ONCE. Beyond that, federal rules are the same.
Relation Back and Fictitious Defendants
Relation back is okay if
(1) original complaint was filed BEFORE the SoL ran and contained a fictitious defendant;
(2) P was genuinely ignorant of the identity of Doe; and
(3) P pleaded the ignorance in the original complaint
If P substitutes the true D within 3 YEARS of filing, it relates back
