Service and Pleadings

Question 1

Personal service

Answer 1

valida nywhere in the state

Question 2

Substituted Service

Answer 2

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

Question 3

Effectiveness of substituted service

Answer 3

deemed effective 10 days after the mailing

Question 4

Serving a corporation

Answer 4

Deliver process to agent or to an officer or general manager.

Question 5

Service by mail

Answer 5

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

Question 6

Service by Publication

Answer 6

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

Question 7

Service outside CA

Answer 7

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

Question 8

Immunity

Answer 8

CA state courts DO NOT recognize immunity from service of process when D is in CA to participate in litigation

Question 9

Subsequent pleadings

Answer 9

As in federal court, can be delivered or mailed

If mailed, add 5 DAYS to time required for response (Fed court we add 3)

Question 10

Frivolous Litgiation

Answer 10

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

Question 11

Complaint

Answer 11

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

Question 12

Damages in Complaint

Answer 12

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

Question 13

Statement of Damages

Answer 13

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

Question 14

heightened pleading requirements

Answer 14

Fraud, civil conspiracy, tortious breach of K, unfair business practices, and product liability claims

Question 15

Fictitious Defendants

Answer 15

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”

Question 16

Defendant’s response timing

Answer 16

D must respond within 30 DAYS after service of process is deemed complete (Fed court is 21 days)

Question 17

General Demurrer

Answer 17

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*

Question 18

Special Demurrer

Answer 18

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

Question 19

Motion to Quash Service of Summons

Answer 19

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

Question 20

Motion to Strike

Answer 20

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

Question 21

Anti-SLAPP motion to strike

Answer 21

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

Question 22

SLAPP BACK motion

Answer 22

D who prevails on an anti-slapp motion may bring a slapp back motion, which is essentially a cause of action for malicious prosecution

Question 23

Answer

Answer 23

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

Question 24

Timing for Answer

Answer 24

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

Question 25

Cross complaints

Answer 25

in CA, all D’s claims against p, co-defendant, impleaded party are deemed cross-complaints

Question 26

Cross-Complaint against P

Answer 26

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

Question 27

Cross-Complaint against co-party

Answer 27

similar to crossclaim. May be filed ANYTIME before court has set a trial date

Must arise from same TOO, never compulsory

Question 28

Cross Complaint against third party defendant

Answer 28

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

Question 29

Amending Pleadings

Answer 29

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.

Question 30

Relation Back and Fictitious Defendants

Answer 30

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