Let’s Sue! PLEADINGS

Civil Litigation I Today’s Objectives You will learn: The general requirements for all pleadings What rules apply for filing and service of pleadings How to draft a complaint What pleadings the defendant can file About special pleadings that are used How to amend a pleading after it’s been filed.

What Are Pleadings? Pleadings are the first documents filed with the court in a case, in which the parties plead their claims and defenses. Pleadings are governed by Code of Civil Procedure §422. The first pleading in a case is the Complaint.

Basic Pleadings Complaint Answer to Complaint Demurrer Cross-complaints

Requirements For Pleadings Every pleading must have a caption containing: Name of court and county where filed Title of the action Names of all parties

Requirements For Pleadings Designation of party You must give a designation to each party in the case. Examples: ACLU, a non-profit corporation Kyle & Morris, a partnership Sellyca, Inc., a California corporation Caryn McIntosh, as Guardian Ad Litem for Taylor McIntosh Mary Carr, as an individual, and as a partner of Carr & Carr

Title of the Document The title of the document should be complete: i.e.: Complaint for Negligence and Fraud Complaint for Damages 1. Negligence 2. Negligent Infliction of Emotional Distress 3. Negligent Misrepresentation

Requirements for Pleadings Each pleading must be signed by an attorney [or the party, if they are not represented by an attorney].

Format Requirements Rule 201 of CA Rules of Court: Papers must be 8½ by 11, numbered 1-28 on the left side Font no smaller than 12 point Only use one side of the paper Line spacing must be 1½ or double spaced

Format Requirements Quotations, footnotes and descriptions of real property may be single-spaced. Recycled paper is required for original documents filed with the court The name, address, phone number, and state bar number of the attorney must appear on the top left hand corner beginning with line one. The title of the court goes on line 8

Civil Cover Sheet A civil cover sheet must be filed with the complaint. Failure to file it will result in sanctions The civil cover sheet must be served on all the parties with the complaint

 Complaints  Answers  Cross-complaints

What is a Complaint? It is the document filed by the injured party (the plaintiff) to begin the lawsuit The complaint must be prepared in accordance with the procedures under California law There are format requirements as well

No title… just liked the photo

Requirements For Complaint A complaint or cross-complaint must have a statement of facts to support the allegations Complaints should be written in plain language In California form complaints can be used for some causes of action.

Rules Regarding Complaints Each party is identified as either an individual, representative of a trust, estate or incompetent individual, corporation, partnership, sole proprietorship, governmental agency, or business entity unknown Each complaint must list Doe defendants, in case another defendant surfaces later on in the case

Causes of Action Each complaint must be broken up into various causes of action Each cause of action must be separately stated and numbered and state which defendants the cause of action is against Example of Causes of Action: Negligence, Breach of Contract, Fraud, Civil Rights Violation, etc.

Causes of Action State the elements of the cause of action by turning each element into facts from your case Use plain English When necessary attach an exhibit to the complaint (i.e., in breach of contract, attach the contract).

Prayer For Relief CCP § 425.10(b) A complaint must contain a prayer for relief stating the relief requested. Legal Relief is money, called damages Compensatory Damages General Damages Special Damages Punitive Damages Equitable Relief injunction specific performance

Summons Summons is a notice to the defendant that he is being sued and to command him to appear and defend himself The court now keeps the original summons. When you file the Complaint, the clerk will stamp your copy which becomes a conformed copy to use for service.

Filing Requirements The Complaint is filed with the proper Superior Court with the following: A filing fee of $320.00 A Summons A Civil Cover Sheet

Service of Summons A copy of the original summons must be attached to each copy of the complaint and served on EACH defendant. The complaint must be PERSONALLY served, meaning hand-delivered.

Service of Summons & Complaint The Plaintiff has 60 days to serve all the defendants with the Summons/Complaint. If you do not comply with the rule you must file a Certificate of Progress with the court or you will be fined $50 Once all the defendants are served in a case you file the Original Certificate of Service w/ Proofs of Service.

Answer To Complaint After service has been completed, defendant has 30 days to file a response to the complaint, generally, an Answer. Defendant must admit or deny the allegations in the complaint (can use a General Denial for most cases) Defendant can assert affirmative defenses Must include a prayer for relief

Cross-Complaints Types of Cross-complaints Against the plaintiff Against a co-defendant Against a 3rd party

Compulsory Cross-complaints Mandatory if defendant has a claim against the plaintiff from the same incident or transaction which is the subject of the complaint. If defendant fails to file a cross-complaint, the right to relief is waived.

Permissive Cross-complaints Defendant may bring a claim, but is not required to under the Code of Civil Procedure The claim is not from the same occurrence or transaction

Third Party Cross-complaint A defendant can bring a new party into the lawsuit if the claim arises from the same incident or transaction. Or the cause of action involves an interest in property that is the subject of the suit.

What Else? Special Pleadings

Interpleader A party called a “stakeholder” is allowed to file an interpleader action when: Two or more claimants are making competing claims on the same $. A named defendant to an action who has no interest in the $ can deposit the $ with the court.

Intervention A non-party to a lawsuit can become part of the case as a party if the person has an interest in the outcome of case, and if: The outcome of the case could impair the intervenor’s ability to protect his/her interest in the property. There is no other party who can adequately represent the interests of the intervenor.

Class Actions A lawsuit in which a few individuals represent the interests of a large group of members of a class is called a class action. It can be brought if: The parties are too numerous The question is of general interest to many persons Separate actions would create a risk of inconsistent verdicts

Amended Pleadings Amendment by Right CCP §472 A plaintiff can make any changes to a complaint before a defendant has answered the complaint

Amended Pleadings Amendment by Leave of Court CCP §473 After defendants have responded, you can amend the complaint by motion to the judge Or by stipulation of the parties.

Pleading Paper and Rules There are strict rules as to what kind of paper, color, size, and numbering is used. Some courts limit the number of pages Each court has rules for line numbering!

The Caption 2 San Diego, California 92101 3 1 Robert A. Unger, Esq. (SBN 147915) 123 Winner Lane, Suite 456 2 San Diego, California 92101 (619) 995-0628 3 4 5 Attorney for Plaintiff or Defendant 6 WALTER WRONGED or WRONGDOER 7 8 COURT NAME 9 NAME OF COUNTY 10 11 NAME, ) CASE No. C 123456 12 Plaintiff ) ANSWER TITLE (ALL CAPS) 13 vs. ) 14 ) Dept. 83 15 NAME, ) Judge: Honorable Julie Justice 16 Defendant ) 17---------------------------------------

The Caption KAREN COLBY, Esq. (SBN 123456) JONATHAN McINTOSH (SBN 234567) COLBY & McINTOSH 400 Third Street Chula Vista, CA 91910 (619) 293-3640 Email: KColby@CandM.com Attorneys for Plaintiffs

The Body The introductory clause begins on the next numbered line at least two spaces below the caption. It must be typed in ALL CAPS Standard form such as: DEFENDANT ANSWERS PLAINTIFF’S COMPLAINT AS FOLLOWS:

General Allegations Those basic facts needed for each element of each Cause of Action. Each Cause of Action must be done seperately, but if a fact is applicable to all of the causes of action, it can be stated as follows: GENERAL ALLEGATIONS APPLICABLE TO ALL CAUSES OF ACTION

WRONGFUL IMPRISONMENT Causes of Action Stated as follows: FIRST CAUSE OF ACTION NEGLIGENCE Followed by facts pertaining to the elements SECOND CAUSE OF ACTION WRONGFUL IMPRISONMENT

Bottom Caption For filing purposes and to make the clerk’s life simpler… Label placed at bottom caption! COMPLAINT FOR PERSONAL INJURY

The Prayer What do you want?? WHERFORE, Plaintiff prays for judgment against Defendants, and each of them, as follows: ON THE FIRST CAUSE OF ACTION: 1. For general… 2. For all medical…

Date and Signature Lines Month and Year are typed Day left blank unless you know it will be signed today! DOOWEE, SUEM, & HOWE By: _____________________ ROBBER LAWGUY Attorney for Plaintiff FRED A. WRONGED

Verification? Some Complaints and other pleadings must be “verified”. This means that the truth of the alleged facts in the document must be declared under penalty of perjury. The attorney decides which ones! See example

Other prep? Make 2 copies 2 hole punch the Complaint and all original forms, centered at the top, 21/2 inches apart, 5/8 inches from top (C.R.C, Rule 2.115) Check fees Confirm rules on court’s website, TWICE! IF possible, check with the clerk working in the department in which the case is assigned (after Complaint and Answer, of course) Tickler or note in the firms’ case tracking software the date of filing.

Questions?