© 2005 by Thomson Delmar Learning. All Rights Reserved.1 CALIFORNIA CIVIL LITIGATION COMPLAINTS AND CROSS-COMPLAINTS

2 STATE COURT COMPLAINTS May be drafted on pleading paper or Prepared on Official Judicial Council Forms

3 RULES GOVERN FORM Pleading Paper Font Size Location of Caption Content of Caption Numbering of Causes of Action Numbering of Paragraphs Binding at Top

4 THE CAPTION  Attorney name, bar number, address, phone, party represented  Names of plaintiffs, defendants  Case number  Title of document

Alma Howardson, Esq. SBN Main St. Vista View, CA Attorney for Plaintiff Smith SUPERIOR COURT OF MOUNTAIN COUNTY James Smith, plaintiff,)Case No. ____________ v. ) Robert Jones, and Does)Complaint 1-5, defendants.) _______________________ / More than $10,000 at issue Alma Howardson, Esq. SBN Main St. Vista View, CA Attorney for Plaintiff Smith SUPERIOR COURT OF MOUNTAIN COUNTY James Smith, plaintiff,)Case No. ____________ v. ) Robert Jones, and Does)Complaint 1-5, defendants.) _______________________ / More than $10,000 at issue

6 DOE DEFENDANTS State Court Unknown at time of pleading, and responsible for injury alleged Federal Court Not permitted!

7 CAUSES OF ACTION— allegations of fact establishing each element of individual theories of relief (e.g., breach of contract, fraud, negligence).

8 FORM OF CAUSES OF ACTION  Each is numbered and named  Specifies opposing party  Contains numbered paragraphs alleging facts for each element of the theory  Conclusions improper

9 Plaintiff alleges: FIRST CAUSE OF ACTION NEGLIGENCE  Plaintiff James Smith is a resident of Mountain County and the owner of an oak tree situated at Oak and Walnut Street.  Defendant Robert Jones is a resident of Seaside County.  The identities of Defendant DOES 1–5 are unknown at this time. They are each responsible for the injuries alleged herein.  On or about June 15, 2004, defendants drove a motor vehicle carelessly and recklessly, so as to strike plaintiff 's oak tree and cause it to fall. Defendants did so despite their duty to drive with care and in consideration of plaintiff 's property.  Plaintiff has been proximately damaged in the sum of $60,000, representing the loss in value of his real property as a result of the loss of the tree. Plaintiff alleges: FIRST CAUSE OF ACTION NEGLIGENCE  Plaintiff James Smith is a resident of Mountain County and the owner of an oak tree situated at Oak and Walnut Street.  Defendant Robert Jones is a resident of Seaside County.  The identities of Defendant DOES 1–5 are unknown at this time. They are each responsible for the injuries alleged herein.  On or about June 15, 2004, defendants drove a motor vehicle carelessly and recklessly, so as to strike plaintiff 's oak tree and cause it to fall. Defendants did so despite their duty to drive with care and in consideration of plaintiff 's property.  Plaintiff has been proximately damaged in the sum of $60,000, representing the loss in value of his real property as a result of the loss of the tree.

10 PLEADING DEVICES Inconsistent allegations Incorporation by reference “On or about” “Information and belief”

11 SECOND CAUSE OF ACTION INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS  Plaintiff incorporates by reference all the allegations of paragraphs 1–5, as if set forth in full.  Defendant knew that plaintiff was attempting to sell the property on which the tree stood. Plaintiff is informed and believes and, therefore, alleges that defendant is harboring a grudge against plaintiff for firing him from his employment, and did the actions alleged to in an attempt to harm plaintiff, and cause plaintiff severe emotional distress.  As a result of the actions taken by defendant, plaintiff did suffer severe emotional distress, and has experienced pain and suffering in his body from headaches, loss of sleep and stomach ailments, and in his mind from severe depression.  Defendant acts were malicious and oppressive, and intended to harm plaintiff, justifying an award of punitive damages, according to proof. SECOND CAUSE OF ACTION INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS  Plaintiff incorporates by reference all the allegations of paragraphs 1–5, as if set forth in full.  Defendant knew that plaintiff was attempting to sell the property on which the tree stood. Plaintiff is informed and believes and, therefore, alleges that defendant is harboring a grudge against plaintiff for firing him from his employment, and did the actions alleged to in an attempt to harm plaintiff, and cause plaintiff severe emotional distress.  As a result of the actions taken by defendant, plaintiff did suffer severe emotional distress, and has experienced pain and suffering in his body from headaches, loss of sleep and stomach ailments, and in his mind from severe depression.  Defendant acts were malicious and oppressive, and intended to harm plaintiff, justifying an award of punitive damages, according to proof.

12 PRAYER— sets forth the relief sought, although no dollar figure may be given for personal injury damages.

13 Plaintiff prays for  an award of $60,000 for the loss of real property value resulting from the loss of the tree;  an award according to proof for damages for emotional distress;  exemplary and punitive damages of $500,000;  attorneys’ fees and costs; and  such other and further relief as the court may deem proper. July 17, 2004________________________ Alma Howardson, Esq. Attorney for Plaintiff James Smith Plaintiff prays for  an award of $60,000 for the loss of real property value resulting from the loss of the tree;  an award according to proof for damages for emotional distress;  exemplary and punitive damages of $500,000;  attorneys’ fees and costs; and  such other and further relief as the court may deem proper. July 17, 2004________________________ Alma Howardson, Esq. Attorney for Plaintiff James Smith

14 SUBSCRIPTION —signed VERIFICATION —under oath in specific types of cases

15 CROSS-COMPLAINTS— same as complaints except  caption has new box with parties to the new action, and  uses same case number as complaint.

16 FEDERAL COURT COMPLAINTS  Caption contains request for jury trial and basis for jurisdiction.  Cross-actions are counterclaims, cross-claims, and third party cross-complaints.  Causes of action are called counts or claims.

17 CALIFORNIA FORM PLEADING Official Judicial Council Forms  Satisfy format requirements only  Require care for completion  Can be combined with drafted pleadings

18 SUMMONS AND SERVICE

19 PURPOSE OF THE SUMMONS— service establishes personal jurisdiction over the defendant, giving the court the power to render an enforceable judgment.

20 SUMMONS State Court Issued by attorney or court clerk Federal Court Issued by court clerk

21 FORM OF SUMMONS State and Federal Court Summons is a form with the exact information contained in the caption.

22 SERVICE OF SUMMONS  By anyone over 18 and not a party  On a defending party named in the caption  With the complaint or other pleading  In 60–90 days according to local court rule

23 FOUR METHODS OF SERVICE Personal Service Substituted Service Notice and Acknowledgment Publication

24 PERSONAL SERVICE— personal delivery to the person to be served; responsive pleading is due 30 days later.

25 SUBSTITUTED SERVICE— after due diligence for personal service, summons and pleading left with adult at home or business; copy sent by mail to same address; response due 40 days after mailing.

26 NOTICE AND ACKNOWLEDGMENT— form sent to defending party with copy of pleading; response cannot be compelled; responsive pleading due 30 days after date of signature on form copy returned to sender.

27 PUBLICATION When defending party cannot be found, the court may permit service by publishing in legal newspaper, generally once a week for 4 weeks. Response is generally due 30 days after final publication.

28 SERVICE OF CROSS- COMPLAINTS If party has appeared, service is by mail or hand delivery. If party has not appeared, service is the same as for complaints.

29 RETURN OF SERVICE— document found on reverse of summons, verifying type and date of service, and identity of server; original summons and return are filed with the court after service.

30 SUMMARY Complaints/ Cross-Complaints/Forms Service of Process PREVIEW Answering Complaints SUMMARY Complaints/ Cross-Complaints/Forms Service of Process PREVIEW Answering Complaints