PART II Initiating Litigation

PART II Initiating Litigation CHAPTER 3 Preliminary Considerations KEY POINTS Statutes of limitations are found in CCP 312 365. Claim statutes exist when suing public agencies and estates. Rules of Professional Conduct establish ethical standards for California attorneys. Bookmark this important site: California State Bar Assoc. www.calbar.ca.gov DETERMINING THE EXISTENCE OF A CAUSE OF ACTION California requires that the complaint contain facts which support each element of a cause of action. Identifying the various causes of action which might apply in a case is therefore critical. TIME LIMITATIONS STATUTE OF LIMITATIONS Statutes of limitations for various actions in California are found in the Code of Civil Procedure, sections 312 365. Some of the more common time limitations for commencing a civil action are: One year Actions for libel, slander, or false imprisonment Two years Actions based on an oral contract; actions for personal injuries or death resulting from the wrongful act or neglect of another; actions based on assault or battery Four years Actions based on a written contract Additionally, California has date of discovery type statutes for professional malpractice and fraud: MEDICAL MALPRACTICE. Three years from date of injury or one year from date of discovery, whichever is first. LEGAL MALPRACTICE. Four years from date of wrongdoing, or one year from date of discovery, whichever occurs first. ASBESTOS EXPOSURE. One year from date of discovery of disability or death, or one year after suffering disability or death, whichever is later. FRAUD. Three years from date of discovery. Special rules also exist for civil actions based on sexual abuse of minors (CCP 340.1). Generally, suit must be filed within eight years of the date plaintiff attains majority or within three years of the date plaintiff discovers or should have discovered that a psychological injury was the result of abuse, whichever time is later. TOLLING THE STATUTE OF LIMITATIONS Generally, statutes of limitation are tolled when a person is a minor or is incompetent. However, this is not the case if 7

8 PART II Initiating Litigation the action is against a public entity or employee for a case in which a claim must be made. (CCP 352) Special rules also apply to malpractice cases. Filing deadlines are tolled in medical or legal malpractice cases under a number of circumstances, including concealment of the wrongdoing or fraud. Medical malpractice also has special rules relating to minors (CCP 352): Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. CLAIM STATUTES PUBLIC AGENCIES The procedures for filing a claim and a lawsuit against a state or local public agency in California are found in the Government Code starting with section 900. Prior to filing certain types of lawsuits, including those for money damages, a written claim must be submitted to the public agency (Govt. Code 945.4). A claim relating to a cause of action for death or injury to person or property must be presented to the board or governing body of the public agency within six months of the date of injury (Govt. Code 911.2). Other claims must be presented within one year of the accrual of the cause of action. Government Code Section 910 outlines the requirements of the claim. It must contain the following information: 1. Name and address of the claimant; 2. Address to which the person presenting the claim desires notices to be sent; 3. Date, place and other circumstances of the occurrence or transaction that gave rise to the claim; 4. General description of the indebtedness, obligation, injury or damage sustained; 5. Name of any public employee who caused the injury, if known; 6. Amount claimed if it totals less than $10,000; if more than $10,000, then the claim should indicate whether it would be a limited civil case. Some agencies have their own claim form which is provided on request. Once the claim has been submitted, the public agency has forty-five days to act on the claim (Govt. Code 911.6). If the agency denies the claim and gives written notice of this to the claimant, the claimant has six months to file a lawsuit (Govt. Code 945.6). If the agency fails to give notice of its action within forty-five days, the claimant can treat the claim as being denied and file a lawsuit. In such a case, however, the six-month time limit does not apply and the plaintiff has two years from the accrual of the cause of action to file a lawsuit (Govt. Code 945.6). No lawsuit can be filed until the forty-five days has lapsed. These time limits replace the normal statute of limitations for any case. When a lawsuit is filed, compliance with this section should be alleged. It is common to attach a copy of the letter denying the claim to the complaint itself. Should a plaintiff fail to submit a timely claim, section 911.4 of the Government Code allows the claimant to petition the public agency and request that he or she be allowed to file a late claim. This application must be filed within one year of the date the cause of action arises. The board should grant this petition if the person injured was a minor or incapacitated before the expiration of the time in which to file a claim. The petition should likewise be granted if the failure to file the claim was due to mistake, inadvertence, surprise, or excusable neglect (Govt. Code 911.6). If the petition is granted, a claim is filed and the case proceeds as if the claim had been filed in a timely fashion. If the petition to file a late claim is denied, then the claimant must file a petition with the court asking that he or she be allowed to file a complaint even though no claim was ever filed (Govt. Code 946.6). If the court makes an order allowing the complaint to be filed, it must be done within thirty days. All claims and notices can be served personally or sent by mail (Govt. Code 915 915.4) A copy of the form used to make a claim against the state of California is found in Exhibit 3-1 located at the end of this chapter. CLAIMS AGAINST A DECEDENT Section 9351 of the California Probate Code provides that an action may not be commenced against a decedent s personal representative unless a claim is first filed and is rejected. The claim procedures are found in sections 9100 9256 of the California Probate Code. A form for making the claim has been approved by the Judicial Council. A claim is required to be presented to the representative within four months of date the representative was appointed or within sixty days after notice to creditors has been given, which is later. Procedures for filing late claims are found in Probate Code section 9103. If a claim is rejected, the claimant has three months after that time to file a lawsuit. The code further provides that should a defendant in a lawsuit die during the pendency of the action, the lawsuit must be suspended and a claim presented to the representative. If the claim is rejected, the action can proceed in court (Prob. Code 9370). Some circumstances do exist in which claim requirements do not exist (Prob. Code 9390 9392). For example, claim requirements against a decedent do not apply if the decedent was insured for the claim and the amount of the claim does not exceed the policy limits (Prob. Code 9390).

CHAPTER 3 Preliminary Considerations 9 ACTIONS AGAINST HEALTH CARE PROFESSIONALS Prior to filing a lawsuit against a health care professional for negligence (medical malpractice), plaintiffs are required to give the professional ninety days written notice of their intention to commence action. The notice should include a statement describing the legal basis of the claim, and the type of loss sustained including a description of the injuries. A copy of the notice should also be sent to the Medical Board of California or Board of Pediatric Medicine, as applicable. No action on this notice need be taken by the health care professional and failure to give this notice does not affect the lawsuit. However, if the plaintiff is represented by an attorney, that attorney is subjected to disciplinary proceedings by the state bar for failing to comply (CCP 364, 364.1, and 365). ETHICAL CONSIDERATIONS IN ACCEPTING A CASE The conduct of attorneys in California is governed by the Rules of Professional Conduct adopted by the board of governors of the state bar and approved by the California Supreme Court. The California state bar maintains a website at www.calbar.ca.gov. The California Rules of Professional Conduct, as well as ethics opinions of the state bar, are located on this site. Additional rules regarding ethical considerations are found in the California Business and Professions Code (Sections 6000 6228). ETHICAL CONSIDERATIONS AFTER ACCEPTING A CASE ATTORNEY FEES In most cases, as long as the attorney fee is not unconscionable, the determination of the attorney fee is negotiable. In some instances, however, attorney fees have been statutorily limited in California, for example, medical malpractice cases. Section 6146 of the Business and Professions Code limits the fee to a certain percentage, the amount of which depends on the amount of judgment or settlement. Contracts for attorney fees for services to minors should be approved by a court (Family Code 6602). WRITTEN FEE AGREEMENTS Sections 6147 6148 of the California Business and Professions Code require that most fee agreements be in writing. Although there are some exceptions, contingent fee agreements and other agreements where the fee is expected to exceed $1,000 must be in writing. The code details what must be included in those agreements. A contingent fee agreement must contain the following statements: 1. Statement of the contingency fee rate; 2. How disbursements and costs will affect the fee and the client s recovery; 3. Statement as to what extent, if any, plaintiff could be required to pay the attorney for other related matters; 4. Statement that, except for medical malpractice fees, the fee is negotiable and not set by law, and if it is a medical malpractice case, a statement that the statutory rates are maximum amounts and lower amounts can be negotiated. The plaintiff in the case is entitled to a signed copy of the agreement. If the agreement is for an hourly rate or fixed fee, the following information must appear: 1. Hourly rate and other rates, fees and charges applicable to the case; 2. General nature of the legal services to be provided; 3. Respective responsibilities of attorney and client. Sample attorney fee agreements can be purchased from the State Bar of California for a nominal fee. BILLS Under section 6148 of the Business and Professions Code, all bills rendered by an attorney to a client must be very specific. They must clearly state the basis for the bill, and identify the costs and expenses incurred. Also, upon request of the client, the attorney must submit a written bill within ten days of the client s request (unless a bill had been sent within the last thirty-one days). FEE-SHARING Fee-sharing with nonattorneys is prohibited in California under Rule 1-320 of the Rules of Professional Conduct. Fee-sharing arrangements (including referral fees) among attorneys is regulated by Rule 2-200. In general, this rule prohibits attorneys who are not partners or associates, from sharing fees unless the client has consented in writing and unless the total fee charged is not increased by reason of the fee-sharing. FEE DISPUTES Should a fee dispute arise between a client and an attorney, prior to any litigation, the attorney must advise the client that the client has the right to have the dispute arbitrated (Bus. & Prof. Code 6200 et seq.).

10 PART II Initiating Litigation Exhibit 3-1 Government Claim Form

Exhibit 3-1 Government Claim Form (continued) CHAPTER 3 Preliminary Considerations 11

12 PART II Initiating Litigation CHAPTER 4 Investigation and Evidence KEY POINTS Interview techniques do not vary from one jurisdiction to another. Corporate agents for service can be located through the secretary of state. Business operating under fictitious names must file statements with the county clerk. The rules of evidence for California are found in the California Evidence Code. Bookmark these important websites: California Secretary www.ss.ca.gov/ of State Directories www.nocall.org/ of Experts experts.htm www.expert4law.org www.calif-legal.com LOCATING FACT WITNESSES OR ELUSIVE DEFENDANTS PARTNERSHIPS AND CORPORATIONS In California, corporations, limited partnerships, limited liability companies and limited liability partnerships are required to provide the secretary of state with the name and address of an agent for service of process. This information is available to anyone and can be obtained from the secretary of state s office in Sacramento (Calif. Corp. Code 202, 1502, 15621). General partnerships are not required to provide this information. General partnerships are not required to file any information with the secretary of state or the county clerk unless they operate under a fictitious name. However, a partnership may file a statement of partnership in the secretary of state s office. This document will list the names of the partners (Calif. Corp. Code 16105). Access to many of the records kept by the secretary of state is available through the Internet at www.ss.ca.gov. FICTITIOUS NAME STATEMENTS When individuals, partners or corporations operate their businesses under fictitious names they are required to file a fictitious name statement with the clerk in the county in which the business operates (although many fail to do so). This statement will provide the name and address of the principals of the business (Calif. Business and Professions Code 17900 et seq.). TECHNIQUES FOR INTERVIEWING FACT WITNESSES In general techniques for interviewing fact witnesses do not vary from one jurisdiction to another. However, California paralegals must be careful when tape recording statements. TAPE RECORDING STATEMENTS California Penal Code section 632 makes it a crime in California to tape record a conversation that is intended to be confidential unless all parties agree to the recording. EVIDENCE The basic rules of evidence for practice in California state courts are found in the California Evidence Code and are similar in content to the federal rules. One notable exception is the Best Evidence Rule which as been repealed in California and replaced with the Secondary Evidence Rule. Unless an injustice or unfairness would result, copies of documents are admissible to prove the content of the document. On the other hand, use of oral testimony regarding the content of documents is limited. Exhibit 4-1 is a list of certain relevant provisions of the California Evidence Code.

CHAPTER 4 Investigation and Evidence 13 Evidence Code Exhibit 4-1 Relevant Provisions of the California Evidence Code Topic 210 Defines relevance as evidence that tends to prove or disprove a disputed fact. 240 Explains circumstances under which a witness is considered to be unavailable and is similar to federal rule. 250 Defines the term writing, which includes any handwriting, typewriting, printing, photostatting, photographing, transmitting by electronic mail and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof regardless of the manner in which the record has been stored. 255 Defines the term original. 352 Allows court to exclude relevant evidence if probative value is outweighed by undue consumption of time or undue prejudice. 450 460 Explains the application of Judicial Notice (a judge s finding that a fact is true without either party being required to prove it). 500 670 Deals with burden of proof, presumptions, and inferences. 700 778 Deals with competency of witnesses, expert witnesses, and examination of witnesses, generally allows leading questions on cross-examination ( 767) and allows party to call adverse parties as witnesses and conduct direct examination as if it were cross-examination ( 776). 780 791 Deals with credibility of witnesses; generally disallows evidence of character other than evidence of honesty or veracity or their opposites, but does allow evidence of felony convictions under some circumstances. Limits evidence of sexual conduct of plaintiff in a sexual harassment, sexual assault, or sexual battery case. 800 805 Deals with opinion testimony of nonexperts and experts; generally allows experts to give opinion if it is within the area of their expertise and limits areas in which nonexperts may give opinion. 900 1070 Deals with the various evidentiary privileges (i.e., doctor/patient, attorney/client, etc.) and includes right not to disclose trade secrets ( 1060 1063). 1100 1107 Deals with evidence of character, habit, or custom; generally prohibits use of character to prove conduct on a specific occasion, but does allow admissibility of habit or custom. 1106 In civil actions for sexual harassment, assault, or battery, generally prohibits opinion evidence, reputation evidence, or evidence of specific instances of plaintiff s sexual conduct. 1115 1128 Anything said or any document prepared for use in a mediation proceeding is inadmissible and not subject to discovery. 1151 Prohibits evidence of subsequent remedial actions (i.e., repairs) in negligence cases. 1152 Prohibits evidence dealing with offers to compromise. 1155 Evidence of liability insurance is not admissible. 1156 1157.7 Deals with special rules regarding health care practitioners and provides that hospital morbidity or mortality studies are subject to discovery but are not admissible at trial; also provides that proceedings and records of certain health care professional review committees are not subject to discovery. 1200 1380 Deals with the hearsay rule and the various exceptions; similar to federal rules. 1400 1454 Deals with authentication of written documents and is similar to federal rules. 1500 1511 Sections dealing with the best evidence rule have been repealed. 1520 1523 Adopts a Secondary Evidence Rule to replace the best evidence rule; allows copies of writings to be used unless a genuine dispute regarding material terms exists and justice requires original or admission of copy would be unfair; limits use of oral testimony to prove content of writing. 1560 Deals with production of business records; sets out guidelines for admissibility of originals and copies and sets witness and copying fees.

14 PART II Initiating Litigation EXPERT WITNESSES California expert witnesses are easy to locate on the Internet. In addition to the sites listed under Key Points at the beginning of the chapter, expert witnesses can be located by using a general search engine such as www.google.com and searching for California legal experts or California expert witnesses. CHAPTER 5 The Initial Pleadings KEY POINTS Complaints in state court must include a statement of facts that constitute a cause of action. The Judicial Council has approved complaint forms for optional use in some cases. Service of process is regulated by CCP 413.10 417.40. Amendments to complaints are liberally allowed. Review these bookmarked sites before drafting pleadings: California Rules of Court www.courtinfo.ca. gov/rules/ Judicial Council Forms www.courtinfo.ca. gov/forms/ INITIAL PLEADINGS PLEADINGS IN CALIFORNIA FEDERAL COURTS Before drafting any pleadings for the district courts in California, review the local rules of the district court. Pursuant to those rules, the general format for papers filed in all district courts in California is similar to the format requirements in state courts. PLEADINGS IN GENERAL STATE COURTS The content and format of the various pleadings in California are governed by the Code of Civil Procedure (hereinafter referred to as CCP), particularly sections 420 475, and Rules 201 201.4 of the California Rules of Court (hereinafter referred to as Rules). Local rules of court and case law also control. Permissible pleadings in California include the complaint, demurrer, answer, and cross-complaint (CCP 422.10). The physical appearance of all papers filed in California courts is described in Rule 201 of the Rules of Court. These rules require that all pleadings (as well as other papers filed in court) be typewritten or printed on 8 1 2 11 inch paper. Only one side of the paper should be used and the lines one and one-half or double-spaced. The lines are also to be numbered consecutively. Paper meeting these requirements is usually referred to as pleading paper. Pages in the pleadings should be numbered consecutively at the bottom and should be firmly bound together at the top. Below the page number, all papers must contain a footer describing the nature of the document (see Exhibit 5-1). State Rules also require that two holes be punched at the top of the paper and that recycled paper be used. In addition to the traditional pleadings prepared by lawyers, for some types of actions, alternative pleading forms have been approved by the Judicial Council. These include forms for complaints, cross-complaints, and answers in actions based on various tort, contract, and unlawful detainer actions. The use of these pleading forms is optional. THE COMPLAINT A complaint filed in a California court is usually required to state facts that support each element of a cause of action. According to CCP 425.10, these facts are to be stated in ordinary and concise language. A complaint must also contain a demand for judgment for the relief claimed. If the relief claimed is money damages, the amount requested should be stated in the complaint unless the action is for damages for personal injury or wrongful

CHAPTER 5 The Initial Pleadings 15 Exhibit 5-1 Complaint for Damages 1 2 3 4 Timothy Lion Attorney at Law State Bar No. 11111 113 North Second St. San Jose, California, 95110 (408) 555-1212 Attorney for Plaintiff 5 6 7 8 9 IN THE SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 10 11 12 13 14 15 16 17 REBECCA CALLEY, ) ) No. Plaintiff ) ) COMPLAINT FOR DAMAGES FOR vs. ) PERSONAL INJURIES AND ) PROPERTY DAMAGE DAVID DORIAN, MERCHANT S ) FURNITURE CO., a ) corporation, and DOES ONE ) through FIVE ) ) Defendants. ) 18 19 20 21 22 23 24 25 26 27 28 Plaintiff alleges against defendants and each of them as follows: 1. The true names and capacities of all defendants named herein as Does are unknown to plaintiff, and are sued by such fictitious names pursuant to section 474 of the California Code of Civil Procedure. 2. Plaintiff is informed and believes and thereupon alleges that defendant Merchant s Furniture Co. was and is a corporation organized and existing under the laws of the State of California. 3. Plaintiff is informed and believes and thereupon alleges that defendants and each of them are residents of Santa Clara County, State of California. 4. Plaintiff is informed and believes and thereupon alleges that at all times herein mentioned each defendant was the agent and employee of each and every other defendant and at all times was acting within the course and scope of said agency and employment. 1 Complaint for Damages (continued)

16 PART II Initiating Litigation Exhibit 5-1 Complaint for Damages (continued) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 5. At all times mentioned herein, defendants Merchant s Furniture Co. and Does One through Five were and now are, the owner of a Toyota truck, California license 123 ABC. At all times mentioned herein, defendant David Dorion was the driver and operator of said vehicle and was operating said vehicle with the knowledge and consent of each and every other defendant. 6. At all times mentioned herein, Santa Clara Street is a public road located in the City of San Jose, County of Santa Clara. 7. On or about May 1, 2003, plaintiff was operating a motor vehicle on Santa Clara Street in a general northerly direction. At that time and place, defendants, and each of them, negligently, carelessly and recklessly entrusted, managed, maintained, and drove the above-described motor vehicle of defendant on Santa Clara Street also in a general northerly direction so as to proximately cause it to collide with plaintiff s automobile and to proximately cause the injuries and damages described below. 8. As a direct and proximate cause of defendant s negligence and the resulting collision, plaintiff was injured in her health, strength and activity, sustaining injury to her body, consisting of, but not limited to, severe injuries, bruises, contusions, strain to all of the muscles of her body, and shock and injury to her nervous system and person, all of which injuries have caused, and continue to cause plaintiff great physical, mental and nervous pain and suffering, all to plaintiff s general damage in an amount in excess of $25,000. 9. As a further direct and proximate result of the negligence of defendant, plaintiff was required to, and did employ physicians and surgeons for medical examination and treatment and incurred medical and hospital expenses. Plaintiff will be obliged to incur further medical and hospital expenses in an amount presently unknown. 10. As a further direct and proximate result of the negligence of defendants, plaintiff was prevented and continues to be prevented from attending to her usual occupation and has sustained and continues to sustain a loss of earnings and earning power. 11. As a further and direct and proximate result of the negligence of defendants, plaintiff has sustained damage to her property and has been denied the use and enjoyment of her automobile in an amount not as yet ascertained. 28 2 Complaint for Damages

CHAPTER 5 The Initial Pleadings 17 Exhibit 5-1 Complaint for Damages (continued) 1 2 3 4 5 WHEREFORE, plaintiff prays for judgment against defendants and each of them as follows: 1. General damages in an amount in excess of $25,000. 2. Special damages according to proof; 3. Costs of suit; 4. Such other and further relief as the court deems just and proper. 6 7 Dated: August 1, 2004 8 9 10 11 12 13 14 15 16 17 18 19 20 By TIMOTHY LION Attorney for Plaintiff VERIFICATION STATE OF CALIFORNIA, COUNTY OF SANTA CLARA I have read the foregoing Complaint for Damages and know its contents. I am a party to this action. The matters stated in it are true of my own knowledge except as to those matters which are stated on information and belief, and as to those matters I believe them to be true. Executed on August 1, 2004, at San Jose, California. I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct. Rebecca Calley 21 22 23 24 25 26 27 28 3 Complaint for Damages

18 PART II Initiating Litigation death filed in the superior court. In such a case, the amount requested is not specified. However, the body of the complaint as well as the prayer should state that the amount requested is in excess of the minimum jurisdictional limit of the court (CCP 425.10). If the case is one of limited jurisdiction (e.g. a claim for less than $25,000), the caption must state that this is a limited civil case. (CCP 422.30). The following statement is also required for cases of limited jurisdiction: Amount demanded exceeds $10,000 or Amount demanded does not exceed $10,000. This language is required because of lower filing fees for smaller cases. PARTIES TO THE LAWSUIT REAL PARTIES IN INTEREST Sections 367 369 of the Code of Civil Procedure deal with real parties in interest in California. These sections are similar to Rule 17a of the Federal Rules of Civil Procedure. MINORS AND INCOMPETENTS A minor (anyone under age eighteen) or an incompetent person must usually appear in a lawsuit either by a general guardian, a conservator or a guardian ad litem (CCP 372). The procedure for the appointment of a guardian ad litem is also set forth in the code (CCP 373). If the petition for the guardian ad litem is made for a minor and that minor is fourteen years or older, the minor must sign the petition. If the child is under fourteen years, the petition is signed by a relative or friend. If the plaintiff in the action is a minor, the appointment of the guardian ad litem must be made before the summons is issued. A Judicial Council form exists for the petition, which is referred to as an application. And is found in Exhibit 5-2 later in the chapter. PARTNERSHIPS AND UNINCORPORATED ASSOCIATIONS In California, a partnership or other unincorporated association can sue or be sued in the name of the business or in the name of the individual members. If the individual members are not named and served, however, then any judgment can only be enforced against business assets. If they are named and served, they are personally liable (CCP 369.5; see also Calif. Corp. Code 16301 et seq.). SPECIAL PROBLEMS WITH PARTIES If a party does business under a fictitious name in California, that party is required to file a fictitious name statement with the county clerk. The failure of a plaintiff in a lawsuit to do so can be raised as a defense in an action based on contract. It does not affect lawsuits for other types of matters. However, this failure can be cured by the party filing a fictitious name statement at any time, even after a complaint has been filed. If a plaintiff in a lawsuit based on contract does business under a fictitious name, compliance with the fictitious name laws should be alleged in the complaint to avoid problems. FICTITIOUS DEFENDANTS The use of fictitiously named (unknown) defendants, or Does, is authorized by CCP 474 and is common in California actions. There is no limit to the number of Does who may be joined and the number often depends on the complexity of the case and the number of named defendants. The term Doe can be used to refer to an individual, partnership, corporation or other business form. It is not necessary to specify the capacity. However, it is necessary to state a cause of action against all fictitiously named defendants. JOINDER OF MULTIPLE PARTIES Permissive joinder of plaintiffs in a California action is controlled by CCP 378 and permissive joinder of defendants by CCP 379. Compulsory joinder of plaintiffs and defendants is controlled by CCP 389. The rules are similar to the federal rules of permissive and compulsory joinder. CLASS ACTIONS California rules of Court, Rules 1850 1861 set forth rules and procedures for class actions. Special requirements exist for the complaint and various stages of litigation. INTERPLEADER Interpleader in California is governed by CCP 386. PLEADING JURISDICTION AND VENUE Unlike complaints filed in federal court, a complaint filed in a state court action need not contain an express paragraph addressing jurisdiction or venue. However, proper jurisdiction and venue of the court should be evident from the various allegations that do appear.

CHAPTER 5 The Initial Pleadings 19 Exhibit 5-2 Judicial Council Form Application for Guardian ad Litem (continued)

20 PART II Initiating Litigation Exhibit 5-2 Judicial Council Form Application for Guardian ad Litem (continued)

CHAPTER 5 The Initial Pleadings 21 PLEADING THE CLAIM OR CAUSE OF ACTION California is primarily known as a code pleading state. In most cases, a complaint must contain a clear and concise statement of facts that support the elements of a cause of action. Since each element of the cause of action must be supported by factual allegations, a claim for negligence filed in a state court would probably be more detailed and specific than that found in the text. A typical complaint for personal injuries based on the defendant s negligence in operating a motor vehicle is found in Exhibit 5-1 at the end of this chapter. COMMON COUNTS An exception to the method of fact pleading exists for types of actions known as common counts. Common counts, which stem from early English pleading, refer to actions where the plaintiff requests money damages arising from some very generally stated contractual obligation. The contract may be oral or written, express or implied. In a common count, the plaintiff does not plead ultimate facts, but rather legal conclusions. The key element of a claim based on a common count is that the defendant is indebted to the plaintiff for some reason. The reason is very generally stated (.e.g., services rendered, goods delivered, money loaned). It is not necessary to plead the details of the contract or other facts necessary to support a cause of action for breach of contract, restitution, or other contractual relief. The statute of limitations for a common count, however, does depend on whether the underlying contract was written or oral. In the case of a written contract, the statute of limitations is four years. In the case of an oral contract, the time is two years. Common counts are often used as an alternative way of pleading contractual obligation. A common count may form the basis of the entire complaint or it may constitute one cause of action in a complaint stating multiple causes of action. A Judicial Council form exists for common counts. DEMAND FOR RELIEF MONEY DAMAGES The general measure of money damages is set forth in sections 3281 3360 of the California Civil Code, which provide that in most cases damages are to be compensatory, rather than punitive, in nature. LIMITATIONS ON DAMAGES If the action is one for medical malpractice, section 3333.2 of the Civil Code limits the amount of money that may be awarded for noneconomic losses (sometimes referred to as general damages). Noneconomic damages include such items as pain, suffering, inconvenience, physical impairment, and disfigurement. A plaintiff may not recover more than $250,000 for such losses. The amount recoverable for economic or pecuniary loss (actual expenses) is not limited. Damages are also limited by statute in California where a plaintiff committed a felony that somehow contributed to the injuries forming the basis of the lawsuit or where plaintiff is suing for damages, resulted from an automobile accident and plaintiff was either drunk at the time or uninsured (Civ. Code 3333.3 and 3333.4). PERSONAL INJURY CASES SUPERIOR COURT As mentioned previously, in an action for compensatory or punitive damages for personal injuries or wrongful death, the specific amount requested is not expressly stated in a complaint filed in superior court. However, the amount claimed will probably have to be furnished at a later date. If the defendant wants to know what damages are being claimed, the defendant files and serves a request for statement of damages. The plaintiff must respond to this request within fifteen days with a written statement describing the nature and extent of the damages that are claimed (CCP 425.11). In the event that the defendant defaults, a statement of damages must be filed before the default is entered. PUNITIVE DAMAGES While compensatory damages are allowed in all cases for money damages, punitive damages are only allowed under special circumstances. Generally section 3294 of the Civil Code provides the basis for an award of punitive damages. Punitive damages are allowed in noncontract cases where the defendant is guilty of oppression, fraud, or malice. ATTORNEY FEES Attorney fees are allowed when specifically provided for by statute, or when the parties have a contract that contains a provision allowing attorney fees (Civil Code 1717). Attorney fees are usually claimed as an item of costs of suit after the matter has been tried. However, if a contract provides for attorney fees, that fact should be alleged in the complaint. PROVISIONAL REMEDIES Provisional remedies in California are covered primarily in CCP 527 et seq. The procedures in California, similar to those in the federal rules, allow for a temporary restraining order and a preliminary injunction.

22 PART II Initiating Litigation DRAFTING THE COMPLAINT Technical requirements for a complaint are found primarily in the California Rules of Court, Rule 201. A complaint must meet the general requirements for all papers presented to the court for filing. As mentioned above, this means the complaint is typewritten or printed on 8 1 / 2 11 inch pleading paper. The format for the first page is also set forth. Starting with line 1, to the left of the page, the name, California state bar number, office address, and telephone number of the attorney appears. Following the name and address is usually a statement showing whom the attorney represents. On or below line 8, the title of the court appears. Below the title of the court, the left of the center, appears the title of the case. To the right of and opposite the title is a space for the number of the case and the nature of the document. The page number must appear at the bottom of the page and below that, a footer describing the nature of the document (e.g., Complaint) (see Exhibit 5-1). In drafting a complaint for filing in a California court, other than for a common count, you must be careful to allege facts that support each element of the cause of action. Form books written for practice in the California courts should be consulted, as should Rule 201. A complaint in California may contain any number of causes of action, each of which should be separated and numbered (e.g., First Cause of Action, Second Cause of Action). After the causes of action have been stated, the prayer appears, followed by the date and signature of the attorney. Since the attorney s address and phone appeared on the first page, it does not follow the signature. VERIFICATION A verification is a statement under penalty of perjury that the contents of a document are true and correct. In California, a few types of complaints are required to be verified, such as quiet title actions and unlawful detainer actions. Even when a verification is not required, however, an attorney can always choose to verify it. The result is that generally the defendant must verify the answer and cannot use a general denial format for the answer (see Chapter 6). The verification is usually signed by the plaintiff rather than the attorney, although in some cases, the attorney is allowed to do so. If the party is absent from the county in which the attorney has his or her office or for some other reason is unable to sign the verification, the attorney is allowed to do so (CCP 446). Where the party to verify is a corporation, any officer may sign the verification. Review Exhibit 5-1 for an example of a verified complaint. JUDICIAL COUNCIL FORMS Judicial Council Forms have been developed and approved for the various actions based on tort, contract, and unlawful detainer disputes. The following forms are available: Complaint Personal Injury, Property Damage, Wrongful Death Cause of Action Motor Vehicle Cause of Action Premises Liability Cause of Action Products Liability Cause of Action General Negligence Cause of Action Intentional Tort Exemplary Damage Attachment Complaint Contract Cause of Action Breach of Contract Cause of Action Fraud Cause of Action Common Counts Complaint Unlawful Detainer (Special forms also exist for family law matters.) The Judicial Council forms are organized somewhat differently from a standard complaint. The initial pages of the complaint forms contain standard, general allegations, including those relating to status, capacity, and venue. They also contain allegations regarding damages as well as the prayer. These initial pages are then followed by the specific causes of action. Of course, only those causes of action which apply to the facts are attached. See Exhibit 5-3. USING THE FORMS Rules 201.1 and 201.2 set fort rules for using the Judicial Council forms. The forms are generally used by filling in the blanks and checking the appropriate boxes. Sometimes, the forms do not provide sufficient space for the allegations needed. In such a case, the allegations are typed on a separate piece of paper and attached. In some cases, plaintiff may have various causes of action, some for which a Judicial Council form exists and others for which a form does not exist. In such a case, the plaintiff has two choices. The plaintiff can avoid using the forms and prepare the entire complaint with using any forms or, under Rule of Court 201.2, can attach a typed cause of action to the Judicial Council form. In such an event, each paragraph in the cause of action should be numbered and each paragraph number should be preceded with one or more identifying letters derived from the title of the cause of action. For example, the paragraphs for a cause of action for medical malpractice might be numbered MM-1, MM-2, etc. When multiple parties are involved in an action, normally the complaint would contain one set of initial pages, listing all parties in the caption and referring to all parties in the appropriate allegations. However, if the plaintiffs have separate causes of action, then separate cause of action forms should be attached. In some cases the same cause of action form, with different names inserted, may be used more than once. Several software programs that generate completed Judicial Council forms are now available. A civil cover sheet (a Judicial Council form) is required to be attached to the complaint. (See Exhibit 5-4)

CHAPTER 5 The Initial Pleadings 23 Exhibit 5-3 Judicial Council Form Complaint (continued)

24 PART II Initiating Litigation Exhibit 5-3 Judicial Council Form Complaint (continued)

CHAPTER 5 The Initial Pleadings 25 Exhibit 5-3 Judicial Council Form Complaint (continued) (continued)

26 PART II Initiating Litigation Exhibit 5-3 Judicial Council Form Complaint (continued)

Exhibit 5-4 Judicial Council Form Civil Case Cover Sheet CHAPTER 5 The Initial Pleadings 27

28 PART II Initiating Litigation FILING THE COMPLAINT Fax filings are permitted by California law. The California Rules of Court, Rules 2001 2009 set forth the procedures to be followed. Documents can be filed by fax either directly with a court (if local rules permit) or through a fax filing agency, which then physically transmits the document to the court and pays the applicable filing fee. If a paper is fared directly to the court, it must be accompanied by a Judicial Council Facsimile Filing Cover Sheet. Payment of filing fees can be by Visa or Mastercard or the court might allow the attorney to set up a special account. An additional fee for fax filing must also be paid. Any party who files or serves a faxed document represents that the original signed document is in his or her possession or control and must produce the original if it is demanded. Notwithstanding this, a signature produced by facsimile transmission is considered an original. Many courts are considering electronic filing for documents. CCP 1010.6 allows courts to adopt local rules to govern this. THE SUMMONS The summons for a general civil case is a Judicial Council Form. See Exhibit 5-5. A separate form exists for unlawful detainer actions because the time to respond to the complaint is different (five days instead of the normal thirty). A separate summons was also adopted for joint debtor actions. SERVICE OF THE COMPLAINT The rules regarding service of process are found in CCP 413.10 417.40. A summons may be served by any person who is at least eighteen years of age and not a party to the action. The documents served include a copy of the summons and a copy of the complaint. Local rules of court may require the other documents be served, for example, copies of the local rules regarding fast track. The methods of service upon a defendant located within the state include personal service, substituted service, service by mail, and publication. PERSONAL SERVICE Personal Service involves personally delivering a copy of the summons and complaint to the defendant. Service is deemed completed when the copies are delivered. (The time to respond to a complaint starts to run when service is deemed completed. See Chapter 6.) SUBSTITUTED SERVICE Substituted service can be used in lieu of personal service under certain conditions. If the person to be served is an individual and diligent attempts at personal service have been unsuccessfully made, substituted service can be effected. Substituted service involves leaving a copy of the summons and complaint at the person s residence with a competent member of the household (over age eighteen) or at the defendant s workplace with a person apparently in charge. In addition, a second copy of the summons and complaint must be mailed, first class postage prepaid, to the person to be served at the place where a copy of the summons and complaint were left. If the defendant is a corporation or unincorporated association or a public entity, substituted service can be used if service is made at the office of the defendant during normal working hours. Diligent attempts at personal service are not necessary. When substituted service is used, it is not deemed completed until ten days after mailing. SERVICE BY MAIL Service by mail involves mailing a copy of the summons and complaint to the defendant first class mail or airmail, postage prepaid. Along with the summons and complaint the following documents must be sent to the defendant: 1. two copies of a Judicial Council form known as notice and acknowledgment of receipt; 2. A return envelope, postage prepaid, addressed to the sender. The individual being served must then sign and return a copy of the notice and acknowledgment in the envelope provided within twenty days. If the individual fails to do so, service is not effected and the defendant must be served in another way. The defendant does become liable for expense of further service. If the defendant does return the notice and acknowledgment, service is deemed completed on the date the written acknowledgment of receipt of summons is executed (CCP 415.30). SERVICE BY PUBLICATION If the defendant cannot be served in another manner service can be made by publication. A prior court order is required (CCP 415.50).

Exhibit 5-5 Judicial Council Form Summons CHAPTER 5 The Initial Pleadings 29

30 PART II Initiating Litigation Exhibit 5-6 Judicial Council Form Proof of Service

Exhibit 5-6 Judicial Council Form Proof of Service (continued) CHAPTER 5 The Initial Pleadings 31

32 PART II Initiating Litigation SERVICE ON A PERSON OUTSIDE THE STATE In addition to the methods listed above, a defendant located outside the state of California can be served by mail requiring a return receipt (CCP 415.40). SERVICE ON A BUSINESS The manner of service on a business depends on the type of business involved. A corporation can be served by serving the agent for service of process named with the secretary of state, or an officer or general manager of the corporation (CCP 416.10). If the business is a general or limited partnership, the service can be made on any general partner or the agent for service of process, if one has been appointed (CCP 416.40). PROOF OF SERVICE Proof of service is made on a Judicial Council form (see Exhibit 5-6). TIME FOR SERVICE Service of the complaint and summons should be made as soon as possible. If the case comes under fast track, local rules of court can establish a time for service not less than sixty days after the complaint is filed (Govt. Code 68616). If the complaint and summons are not serviced within two years of the filing, the court has the discretion to dismiss the case (CCP 583.420). If the complaint and summons are not served within three years of the filing date, the action must be dismissed (CCP 583.210). AMENDING THE COMPLAINT A complaint can be amended once as a matter of course, before an answer or demurrer filed. Otherwise the plaintiff needs a stipulation or court order. Amendments are to be liberally allowed (CCP 472 474). CHAPTER 6 Responses to the Initial Pleading KEY POINTS A response to a general civil complaint is due thirty days from date service completed. Responses to a complaint include answers, demurrers, motions and cross-complaints. Judicial Council forms are approved for some kinds of answers. Claims brought by a defendant against a plaintiff, co-defendant or third party are all known as a cross-complaint. RESPONDING TO THE INITIAL PLEADING TIME LIMITS For most civil cases in California, a defendant has thirty days from the date that service is deemed completed in which to respond to the complaint (CCP 412.20). The most notable exception is for unlawful detainer actions, where the time to respond is five days (CCP 1167). Be sure to review local rules of the United States district courts if responding to a complaint filed in federal court. Local courts can change the twenty-day limit found in the Federal Rules of Civil Procedure. STIPULATIONS EXTENDING TIME In California, a stipulation enlarging time is usually referred to as a stipulation extending time. If the case does not come under fast track rules, the attorneys are given wide latitude in extending the normal time requirements and normally such extensions do not require court approval. In most cases, a letter between the attorneys confirming their agreement is sufficient. If the case does come under the fast track rules, this changes. The rules generally allow parties to stipulate to a fifteen-day extension, but local rules could require court permission for any additional time (Govt. Code 68616).

CHAPTER 6 Responses to the Initial Pleading 33 THE ANSWER Answers are specifically covered in sections 431.10 431.70 of the Code of Civil Procedure. The use of the answer in state court is similar to that in federal court. One major difference exists, however, in that in California an answer cannot be used to challenge personal jurisdiction. Such a challenge must be made by a special appearance, usually a motion to quash service of summons. Filing an answer is deemed a general appearance and is a waiver of any defect in personal jurisdiction. Furthermore, while the answer may raise questions relating to subject matter jurisdiction, it is not the normal method of raising this type of objection or defense. A demurrer is more commonly used. GENERAL DENIAL A general denial can be used in California whenever the complaint has not been verified, or if the amount claimed is under $1,000 even if the complaint is verified (CCP 431.30 and 431.40). In other cases, a specific denial should be used. Whichever format is used, the answer should also include any affirmative defenses that may apply. DRAFTING THE ANSWER The Judicial Council has approved various answer forms, including general denials and specific denials for tort, contract and unlawful detainer cases. The use of these forms, like the complaints, is optional. Where the form is not used, the format of the answer is controlled by Rule 201 of the California Rules of Court and by CCP 431.30. The basic style and format of the answer is the same as that of the complaint. It is prepared on pleading paper with the name, California state bar number, address, and telephone number of the attorney filing the pleading appearing at the top left hand of the first page. The caption is similar to that on the complaint. (The code does allow the parties to abbreviate names on all documents other than the complaint. The first party on each side is required to be named with an indication that there are other parties. The abbreviation et al. is commonly used.) Pages are numbered and a footer describing the document appears at the bottom. Generally, the various paragraphs used in the specific denial appearing in the text are also found in answers filed in state court. When denying an allegation on information and belief, or lack of information and belief, the matter should be expressly denied. SUBSCRIPTION The answer, like the complaint, is normally signed by the attorney. Since the attorney s address and telephone number appear on the first page, they need not follow the signature. If the complaint is verified, the answer must be also be verified. This is usually done by the defendant rather than the attorney. JUDICIAL COUNCIL FORMS Like the Judicial Council form complaints, the answer forms are filled out by filling in the blanks and checking the appropriate boxes. A copy of the form for tort cases is included at the end of this chapter (see Exhibit 6-1). SERVICE AND FILING A copy of the answer is normally served on the attorney for the plaintiff by first class mail, although it can be personally served. If the parties have agreed in writing, service may also be by fax (Calif. Rule of Court, Rule 2008). If the answer is served by mail, then service is evidenced by a proof of service by mail (see Exhibit 6-2). The format for the proof of service by mail is described in CCP 1013a. If the papers are served by fax, then the proof of service must conform to the requirements of California Rule of Court, Rule 2008. This rule requires that the proof of service by fax contain the time, date, and sending fax number, name and fax number of person served, and a statement that the transmission reported completed and without error. A copy of the transmission report should be attached. The original answer, with the proof of service attached, and accompanied by the appropriate filing fee is filed in the court. AMENDING California has liberal rules allowing amendments to all pleadings, However, in most cases, an amendment to the answer requires either a stipulation from the other parties or a court order (CCP 472 and 473). REQUEST FOR STATEMENT OF DAMAGES If a defendant is served with a complaint for damages for personal injuries and the amount of damages is not stated, the defendant can request that the plaintiff provide this information. This is done in a document entitled a request for statement of damages and will often be prepared and served with the answer. The plaintiff has fifteen days in which to respond (CCP 425.11).

34 PART II Initiating Litigation Exhibit 6-1 Judicial Council Form Answer

Exhibit 6-1 Judicial Council Form Answer (continued) CHAPTER 6 Responses to the Initial Pleading 35

36 PART II Initiating Litigation I, Rebecca Hanchett, declare as follows: Exhibit 6-2 Proof of Service by Mail PROOF OF SERVICE BY MAIL STATE OF CALIFORNIA, COUNTY OF SACRAMENTO I am over eighteen years of age and not a party to the within action; my business address is 15 Plaza de Oro, Sacramento, California; I am employed in Sacramento County, California. X I am readily familiar with my employer s practices for collection and processing of correspondence for mailing with the U.S. Postal Service. On April 10, 2004, I served a copy, with all exhibits, of the following documents: on the interested parties in case No. 12345 by: ANSWER TO COMPLAINT FOR DAMAGES X following ordinary business practices and placing for collection and mailing at 15 Plaza De Oro, Sacramento, California, on April 10, 2004, a true copy of the above referenced documents, enclosed in a sealed envelope; in the ordinary course of business, the above documents would have been deposited for first-class delivery with the United States Postal Service the same day they were placed for deposit, with postage thereon fully prepaid. placing a true copy of the above-referenced documents enclosed in a sealed envelope, with postage fully prepaid, in the United States mail at Sacramento, California. addressed as follows: TERRY ALVAREZ ALVAREZ & COE 100 Market Street San Francisco, California 94101 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that declaration was executed on April 10, 2004, in Sacramento, California. Rebecca Hanchett

CHAPTER 6 Responses to the Initial Pleading 37 COUNTERCLAIMS, CROSS-CLAIMS, AND THIRD-PARTY COMPLAINTS In California claims by a defendant against a plaintiff, codefendant, or a third party are all asserted in a pleading called a cross-complaint. Unlike the federal counterclaim, a cross-complaint is never part of the answer, even when filed against a plaintiff. It is always a separate pleading and resembles the federal third-party complaint (CCP 428.40). A defendant filing a cross-complaint is usually referred to as a cross-complainant. The person against whom it is filed is called the cross-defendant. Like its federal counterparts, a cross-complaint can be permissive or compulsory. A crosscomplaint is allowed (permissive) in the following situations (CCP 428.10): 1. Cross-complaint is against the plaintiff who filed the complaint against the defendant crosscomplaining; 2. Cross-complaint is against anyone if the cause of action in the cross-complaint arises: a. out of the same transaction or occurrence alleged in the complaint; or b. in relationship to property or the controversy that is the subject of the complaint. A cross-complaint is generally compulsory if the cause of action names the plaintiff as a cross-defendant and the claim arises out of the same situation as alleged in the complaint. (Various exceptions to this rule are found in CCP 426.30, 426.40 and 426.6.) DRAFTING THE CROSS-COMPLAINT Aside from the caption, a cross-complaint resembles a complaint. The first page must conform to Rule 201 of the Rules of Court. The caption, however, is somewhat different since it reflects the addition of the new action. See Exhibit 6-3 for an example of a caption in a crosscomplaint. Judicial Council forms are approved for some cross- complaints (see Exhibit 6-4). SERVICE AND FILING If the cross-complaint is filed against a named plaintiff, it may be filed with the answer as a matter of right. After the answer has been filed, a court order (obtained by stipulation or motion) is required. If the cross-complaint is filed against a co-defendant or third party, then as a matter of right it can be done at any time prior to the case being set for trial. After a date has been set for trial a court order is needed (CCP 428.50). If a cross-complaint brings in a third party, a new summons on the cross-complaint should be issued with the filing of the cross-complaint. The Judicial Council form summons can be adapted for this. Cross-complaints can be served by mail on the attorney for the party to be served, if that party has already appeared in the action (i.e., filed a complaint or answer). If a crossdefendant has not previously appeared in the action, that party must be served in the same manner as the complaint is served (see Chapter 5). RESPONDING TO A CROSS-COMPLAINT A cross-defendant who is served with a cross-complaint must respond in the same way that a defendant responds to a complaint. That is, within thirty days of service the defendant must file an answer, demurrer, or appropriate motion. Failure to do so can result in a default on the cross-complaint. Additional cross-complaints may also be filed. AMENDING Cross-complaints are amended in much the same way as other pleadings (CCP 472 and 473). LEGAL CHALLENGES TO THE COMPLAINT MOTIONS Motions filed in response to a complaint include a motion to quash service of summons, a motion to dismiss, and a motion to strike. A motion to quash service of summons is used primarily to attack personal jurisdiction, although it can be used to attack the method of service itself (CCP 418.10). A motion to dismiss is used to request that a particular court dismiss the matter on the ground that it is an inconvenient forum (CCP 418.10). A motion to strike is used when the defendant is requesting that all or part of the complaint be stricken because it contains false, irrelevant, or improper matter, or the pleading is not drawn or filed in conformity with the laws of the state, or state or local court rules (CCP 435). DEMURRERS The most common method of attacking the legal sufficiency of a complaint (or cross-complaint) is by demurring to the complaint. A demurrer is a type of pleading, although it closely resembles a motion in format and procedure (CCP 430.10). The grounds for demurring to a complaint are: 1. The court has no jurisdiction over the subject matter; 2. The person who filed the pleading lacks legal capacity to sue; 3. There is another action pending between the same parties on the same cause of action;

38 PART II Initiating Litigation Exhibit 6-3 Caption Cross-complaint 1 2 3 4 5 TAYLOR MARTIN Calif. State Bar No. 12345 15 Plaza de Oro Sacramento, California (916) 555-1212 Attomey for Defendant and Cross-Complainant, Linda Granger 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 IN THE SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO GORDON SHEFFIELD and AMY ) Civil No.1245 SHEFFIELD, ) Plaintiffs ) CROSS-COMPLAINT ) ) ) ) WESLEY LINSTROM, LINDA ) GRANGER, and DOES I-V, ) Defendants ) ) LINDA GRANGER, ) Cross-complainant ) ) v. ) ) BRAKEFAST, Inc., and DOES I-V, ) Cross-defendants. ) ) 21 22 23 24 25 26 27 28

CHAPTER 6 Responses to the Initial Pleading 39 Exhibit 6-4 Judicial Council Form Cross Complaint (continued)

40 PART II Initiating Litigation Exhibit 6-4 Judicial Council Form Cross Complaint (continued)

CHAPTER 6 Responses to the Initial Pleading 41 Exhibit 6-4 Judicial Council Form Cross Complaint (continued)

42 PART II Initiating Litigation 4. There is a defect or misjoinder of parties; 5. The pleading does not state facts sufficient to constitute a cause of action; 6. The complaint is uncertain, ambiguous, or unintelligible; 7. In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written is oral or is implied in conduct; 8. No certificate of merit was filed as required under CCP 411.35. A demurrer is proper only when a defect is apparent from the complaint itself, or from facts over which the court may take judicial notice. Judicial notice means that the court will assume some facts are true without the parties proving it. This usually includes facts that are common knowledge or the existence of documents that are public records. (If these objections are not apparent from the complaint or after judicial notice, they should be raised in the answer.) A demurrer may be used to challenge the entire complaint, or selected causes of action within the complaint. Like an answer, a demurrer must be filed and served within thirty days of the date of service of the complaint. If a demurrer is not directed to all causes of action in the complaint, an answer to the remaining causes of action is not required until after the ruling on the demurrer. When a party demurs to a complaint, a court hearing must take place to determine the validity of the challenge. Twentyone days prior notice of the hearing must be given (Rule 325 and CCP 1005). The hearing is set in the same way that a motion is set for hearing. (Refer to Chapter 7.) Prior to the hearing the other party can file papers opposing the demurrer. Usually the opposition consists of a memorandum of points and authorities in opposition to the demurrer. This should be done at least ten days before the hearing. Reply papers should be filed and served five days before the hearing. At the hearing, the judge will decide whether to sustain the demurrer (agree with the challenge) or overrule the demurrer (decide that the complaint is legally sufficient). If a judge sustains the demurrer, this is done either with leave to amend or without leave to amend. If the problem with the complaint is something that can be corrected with proper pleading, the judge will give the plaintiff the opportunity to amend the complaint and correct the defect. If the problem is something that cannot be corrected (i.e., the court lacks subject matter jurisdiction), then the demurrer is sustained without leave to amend. If the demurrer is to the entire complaint, the result is that the case is dismissed, although such an order would be appealable. DRAFTING THE DEMURRER The content and format for a demurrer is described in section 430.50 of the Code of Civil Procedure and Rules 312 and 325 of the California Rules of Court. Since a demurrer is a pleading, it must conform to the technical requirements of all pleadings. Furthermore, the Rules provide that on the first page, immediately below the court number, the name of the party filing the demurrer and the name of the party whose pleading is the subject of the demur should also appear. Within the demurrer, each ground shall be stated in a separate paragraph and state whether it applies to the entire complaint, cross-complaint, or answer or to specified causes of actions. The demurrer must also be accompanied by a notice of hearing on the demurrer, specifying the date, time, and place of the hearing, and a memorandum of points and authorities. See Exhibit 6-5 for an example of a demurrer and notice of hearing on the demurrer. FAILURE TO ANSWER Defaults and default judgments in California are controlled by CCP 585 587.5. The procedure in California resembles the federal practice. The plaintiff must petition to have the default entered and must also request a judgment on that default. When a party files the request to enter the default with the court, the party must also file the proof of service for the complaint so that the court can determine that a fault has occurred. A Judicial Council form exists that contains the request to enter the default and the declarations needed to support it. A copy of the request must be served by mail on the defendant, if the defendant s address is known. If the plaintiff is aware of an attorney who represents the defendant, that attorney must also be served by mail (even if the attorney has not appeared in the action). If the defendant s address is unknown, the application for the default must be accompanied by an affidavit to that effect (CCP 587). Additionally, if the complaint did not state the specific amount of damages being claimed, a statement of damages must be served on the defaulting defendant (CCP 425.11). When the court receives the request to enter default and proof of service, it will immediately enter the default. If the complaint arises upon a contract or judgment for recovery of money, the court can immediately enter judgment for the amount demanded in the complaint. In other cases, before a judgment can be entered, the plaintiff must prove their case, either by testimony or by affidavit. See Exhibit 6-6 for a copy of the request to enter default. SETTING ASIDE DEFAULTS The procedure for setting aside defaults is found in CCP 473. The grounds for these motions include mistake, inadvertence, surprise, or excusable neglect. The moving

CHAPTER 6 Responses to the Initial Pleading 43 Exhibit 6-5 Demurrer and Notice of Hearing 1 2 3 4 5 TAYLOR MARTIN Calif. State Bar No. 12345 15 Plaza de Oro Sacramento, California (916) 555-1212 Attorney for Defendant, Linda Granger 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 IN THE SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO GORDON SHEFFIELD and AMY ) Civil No. 12345 SHEFFIELD, ) Plaintiffs ) Date: May 15, 2004 ) Time: 9:30 a.m. ) Dept. 13 ) Judge: Smith ) ) DEFENDANT S DEMURRER TO ) PLAINTIFFS COMPLAINT v. ) NOTICE OF HEARING WESLEY LINSTROM, LINDA ) MEMORANDUM OF POINTS AND GRANGER, and DOES I-V, ) AUTHORITIES Defendants ) Date Filed: March 15, 2004 ) Trial Date: None ) Defendant, Linda Granger, demurs to each of the causes of action in the complaint of Gordon Sheffield and Amy Sheffield on the following grounds: 1. The complaint fails to state facts sufficient to constitute a cause of action. 2. The complaint is uncertain, ambiguous, vague and unintelligible. Date: April 1, 2004 Taylor Martin Attorney for Defendant, Linda Granger 24 25 26 27 28 1 Demurrer to Complaint (continued)

44 PART II Initiating Litigation Exhibit 6-5 Demurrer and Notice of Hearing (continued) 1 2 3 4 5 TAYLOR MARTIN Calif. State Bar No. 12345 15 Plaza de Oro Sacramento, California (916) 555-1212 Attorney for Defendant, Linda Granger 6 7 8 9 10 11 12 13 14 15 16 17 18 19 IN THE SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO GORDON SHEFFIELD and AMY ) Civil No. 12345 SHEFFIELD, ) Plaintiffs ) Date: May 15, 2004 ) Time: 9:30 a.m. ) Dept. 13 ) Judge: Smith v. ) ) NOTICE OF HEARING ON WESLEY LINSTROM, LINDA ) DEFENDANT S DEMURRER GRANGER, and DOES I-V, ) Date Filed: March 15, 2004 Defendants ) Trial Date: None ) PLEASE TAKE NOTICE that the demurrer filed with this notice has been set for hearing on May 15, 2004, at 9:30 a.m in department 6 of the above-entitled court located at 400 McAllister Street, San Francisco, CA 94102-4514. 20 21 22 23 24 25 26 27 28 Date: April 1, 2004 Taylor Martin Attorney for Defendant, Linda Granger 2 Notice of Hearing on Demurrer

CHAPTER 6 Responses to the Initial Pleading 45 Exhibit 6-6 Judicial Council Form Request to Enter Default (continued)

46 PART II Initiating Litigation Exhibit 6-6 Judicial Council Form Request to Enter Default (continued)

CHAPTER 7 Motion Practice 47 papers must include a copy of an answer or other pleading or motion proposed to be filed. A motion to set aside a default must be made within a reasonable time of the default, not to exceed six months. Under some circumstances (usually fraud), the court will allow the motion to be made more than six months after the default. CHAPTER 7 Motion Practice KEY POINTS Motion practice in California is generally regulated by CCP 1003 1020 and California Rules of Court, Rules 301 377. Moving papers usually include a notice of hearing, declarations, and a memorandum of points and authorities. Fifteen days notice of hearings is usually required, but that time is longer if notice is mailed. Always review appropriate code sections and rules of court for motions, because some motions have special time limits and other unique requirements. MOTIONS GENERALLY Motion practice in state court does not differ significantly from motion practice in federal court. The general rules affecting motion practice in California state courts are found in sections 1003 1020 of the Code of Civil Procedure and Rules 301 377 of the California Rules of Court. Local rules of court also control. Specific motions are covered in other code sections and rules. If you have a motion in federal court in California, always check local rules of court. Many of the time limits found in the Federal Rules of Civil Procedure have been changed by local rule. Local federal courts may also have special rules and procedures that must be followed. LIMITED CIVIL CASES Motion practice in limited civil cases is basically the same as in cases of general jurisdiction (CCP 92). The only limitation involves motions to strike, which are allowed only on the ground that the claim for damages or relief is not supported by allegations of the complaint. PREPARING, SERVING, AND RESPONDING The general format for motion papers is the same as that for pleadings (Rule 201 and Rules 311 et seq.). Papers filed in support of or in opposition to a motion are prepared on pleading paper and maintain the caption that appears on the pleadings in the case. Special rules also exist regarding exhibits to any document. Exhibits must be separated by a sheet of paper with a hard paper or plastic tab extending below the bottom of the page and bearing the exhibit designation. (Rule 311e) Papers filed in support of a motion usually include the notice of hearing, declarations, and a memorandum of points and authorities. NOTICE OF HEARING The notice of hearing contains the same information as is found in the federal motion and notice of hearing. On the first page, immediately below the docket number, the following information must appear: hearing judge, if known; nature of document; title of any attached document; hearing date, time, and location; trial date (if set); date filed. The opening paragraph of the notice of hearing must also contain a description of the nature of the order being sought and the grounds for issuance. The notice must also describe any papers upon which the motion is based (Rule 311, CCP 1010). See Exhibit 7-1 for an example of a notice of hearing in the Overland case, were it in state court. AFFIDAVITS AND DECLARATIONS The factual basis for a motion can appear in either an affidavit or a declaration. CCP 2015.5 allows the declaration form to be used whenever an affidavit is required, as long as the appropriate language is used. The form to be followed depends on whether the declaration is executed or

48 PART II Initiating Litigation Exhibit 7-1 Notice of Hearing (Motion) 1 2 3 4 5 PAT RIVAS Attorney at Law State Bar No. 125433 769 Maine St. San Jose, California (408) 555-1212 Attorney for Defendant 6 7 8 9 10 IN THE SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 11 12 13 14 15 16 17 18 19 20 21 22 ) ) ) Civil No. 123456 JOHN JONES, ) Plaintiff, ) DATE: May 1, 2004 ) TIME: 9:30 a.m. ) DEPT: 6 ) JUDGE: Simms ) ) NOTICE OF MOTION TO QUASH vs. ) SERVICE OF SUMMONS ) ) DECLARATION OF OWEN YOUNG ) OVERLAND CORPORATION, ) MEMORANDUM OF POINTS AND Defendant ) AUTHORITIES ) ) TRIAL DATE: None DATE FILED: March 15, 2004 23 24 25 26 27 28 To: All PARTIES AND TO THEIR ATTORNEYS OF RECORD PLEASE TAKE NOTICE that on May 1, 2004, at 9:30 a.m., or as soon thereafter as counsel may be heard, in Department 6 of the above entitled court, located at 191 North First Street, San Jose, California, the undersigned will move the court for an order quashing service of summons and dismissing the above entitled action. 1 Notice of Motion to Quash

CHAPTER 7 Motion Practice 49 Exhibit 7-1 Notice of Hearing (Motion) (continued) 1 2 3 4 5 This motion is made on the grounds that the defendant is not subject to the personal jurisdiction of the courts of the State of California. This motion is based upon this notice of motion, the attached memorandum of points and authorities, the attached declaration of Owen Young and upon all other pleadings, papers, records and other documentary materials on file herein. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: April 3, 2004 2 Notice of Motion to Quash Respectfully submitted, Pat Rivas Attorney for Defendant

50 PART II Initiating Litigation signed in California or outside the state. If a declaration is executed within the state, the following language can be used: I certify (or declare) under penalty of perjury that the foregoing is true and correct. (Date and Place) (Signature) If executed at any place, either within or outside the state the following form can be used: I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct. (Date) (Signature) The use of the declaration rather than an affidavit eliminates the need to appear before a notary or other person authorized to administer an oath. A declaration in support of a motion is prepared on pleading paper and usually contains the same caption as other papers in the same case. The caption must also include the name of the declarant and specify the motion it supports (Rule 315). Information regarding the date, time, location of the hearing, and hearing judge, along with the trial date and date the complaint was filed, must also appear immediately below the docket number, just as in the notice of hearing (Rule 311). MEMORANDUM OF POINTS AND AUTHORITIES Most motions are required to be supported by a memorandum of points and authorities. The memorandum should contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statute, cases, and textbooks cited. If the memorandum exceeds ten pages, a table of contents and table of authorities is also required, and a memorandum that exceeds fifteen pages requires an opening summary of the argument. Length requirements for the memorandum are also set. Except for summary judgment motions, the opening and responding memoranda cannot exceed fifteen pages. These limits can be extended with court permission. Complete rules for length and format of a memorandum of points and authorities are found in Rule 313 of the California Rules of Court. SERVICE AND FILING For most motions, the moving papers must be served and filed at least twenty-one calendar days before the hearing date (Rule 317 and CCP 1005). The papers are generally served on the attorney for the opposing party (or the party if not represented). Service can be made personally or by first class mail. However, if the papers are served by mail, additional time is required. The time is extended by five days if mailed to an address within the state of California, ten days if the address is outside the state of California but within the United States and twenty days if the address is outside the United States (CCP 1005 and 1013). Service by mail is usually done by either a secretary, paralegal, or attorney in the office representing the moving party. Papers may also be served by express mail or other overnight delivery and, if the parties agree, by fax. In such cases, the proscribed period of notice is extended by two court days (California Rules of Court 1013). Service is established by a proof of service by a certificate or affidavit made by the individual serving or mailing the papers.this proof of service must be filed with the court at least five calendar days before the hearing (Rule 317b). Where good cause exists, the twenty-one day statutory notice time can be shortened. This requires an ex parte court order which is obtained by making an application to a judge. The application must be supported by a declaration stating the reasons for the request (Rule 317b). RESPONDING TO MOTIONS Papers filed in opposition to a motion include declarations in opposition to the motion and a memorandum of points and authorities in opposition to the motion. They must be filed at least ten calendar days before the hearing (Rule 317 and CCP 1005). Local rules of court may change this time and should be consulted. REPLY PAPERS All reply papers must be filed five calendar days before the hearing. Service of opposition and reply papers is governed by CCP 1005 (c). Service must be in a way reasonably calculated to give notice no later than the close of the next business day after the papers are filed. This includes personal delivery, facsimile transmission and express mail. It does not include first class mail. COURT PROCEDURES INVOLVING MOTIONS HEARINGS As long as a hearing on a motion does not interfere with any trial date, most motions can be set for hearing at any time that is convenient for the parties and the court. In some cases, however, the timing of the hearing on the motion is limited by statute. For example, a motion to quash or dismiss, under CCP 418.10 must be set no more than thirty days after filing notice of the motion. And a motion for summary judgment cannot be filed until sixty days after the general appearance of the party against whom it is filed. Motions for new trial, judgment notwithstanding

CHAPTER 7 Motion Practice 51 the verdict, summary judgment and certain discovery motions are other examples of motions where the hearing date may be critical. Specific statutes should always be checked before setting the motion for hearing. Although most motions are set for hearing, many courts will allow attorneys to submit the matter on the written papers and waive any appearance. If an attorney elects to do this, notice should be given to the court that the attorney will not appear. Failure to give notice, especially by the moving party, may result in the court s dropping the matter (see Rule 321). TENTATIVE RULINGS Under Rule 324 of the California Rules of Court, courts are allowed to issue a tentative ruling on a motion prior to the time set for hearing. The parties can usually telephone SPECIFIC MOTIONS PRETRIAL MOTIONS The following is a list of common pretrial motions in state court, along with references to codes and rules governing those motions. Motion Controlling Law Motion to amend CCP 473, 474 Ct. Rule 327 Motion to dismiss CCP 418.10, 583.110 583.430 Ct. Rules 372 373 Motion to strike CCP 435 437 Ct. Rule 329 Motion for judgment on CCP 438 the pleadings Motion for change of venue CCP 396 399 Ct. Rule 326 Motion to quash CCP 418.10 Discovery motions CCP 2016 et seq. Ct. Rules 331 341 Motion for summary judgment CCP 437c Ct. Rules 342 345 Motions concerning trial date Ct. Rule 375 Motion to be relieved as counsel Ct. Rule 376 For the most part these motions are similar to their federal counterparts. Some distinctions do exist, however. MOTION TO DISMISS. In state practice, unlike federal practice, a motion to dismiss is not used to challenge personal or subject matter jurisdiction. The former is usually raised by a motion to quash service of summons and the latter is usually raised by demurrer. Motions to dismiss are made when one of the parties, usually the plaintiff, unreasonably delays the prosecution of the case. If the complaint has not been served within three years of the court to obtain such a ruling. Local rules should be checked to determine if a particular court follows this procedure. Some courts (including the United States district courts) post their tentative rulings on the Internet. (To see an example, look at the website for the San Mateo County superior court: http://www.sanmateocourt.org/ lawmotion.htm) ORDERS Some courts require parties to submit proposed orders to the court with their moving or responding papers. If this is not done, or if the judge does not accept the proposed order, the prevailing party is generally required to prepare and serve a copy of a proposed order to the other party for approval as to form. The proposed order and any responses are then submitted to the court for signature. the filing date or the case has not been brought to trial within five years of the date the complaint was filed, the granting of such a motion by the defendant is mandatory, absent special circumstances (CCP 583.110 430). A motion to dismiss can also be based on the fact that the matter is being pursued in an inconvenient forum (CCP 418.10). MOTION FOR A MORE DEFINITE STATE- MENT. This motion does not exist in California. If a complaint is ambiguous and vague, the proper response is a demurrer. MOTION FOR SUMMARY JUDGMENT. Because of the congestion in the courts, one of the most important motions in California litigation practice has become the motion for summary judgment. This motion, which is controlled by section 437c of the Code of Civil Procedure and Rules 342 345 of the California Rules of Court, is similar to a motion for summary judgment made in federal court. The motion may be directed to the entire action or to one or more causes of action within the complaint. The motion can also be limited to certain specified issues within the case, namely that there is no merit to an affirmative defense, that there is no merit to a claim for damages or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. In such a case, the motion may be referred to as a motion for summary adjudication, rather than summary judgment. Procedurally, summary adjudication and summary judgment motions are the same. In a motion for summary judgment or summary adjudication, the moving party is required to include a separate statement setting forth plainly and concisely all material facts the moving party contends are undisputed. Each of the material facts stated must be followed by a reference to the supporting evidence (e.g., declaration, admission, answers to interrogatories, deposition, etc.). Furthermore, the declaration or affidavit must show that the declarant is

52 PART II Initiating Litigation competent to testify and has personal knowledge of the matters set forth in the declaration or affidavit. The format for the separate statement is found in Rule 342h of the Rules of Court: Supporting and opposing separate statements in a motion for summary judgment shall follow this format: Supporting statement Undisputed Material Facts: Supporting Evidence: 1. Plaintiff and defendant Jackson declaration, entered into a written 2:17-21; contract, contract for the sale of Ex. A to Jackson widgets. declaration. 2. No widgets were ever Jackson declaration, received. 3:7 21. Opposing statement Undisputed Material Facts and Alleged Supporting Evidence: 1. Plaintiff and defendant Undisputed entered into a written contract for the sale of widgets. 2. No widgets were ever Disputed. The widgets received. were received in New Zealand on August 31, 1991. Baygi declaration, 7:2 5. Special time requirements for filing and serving summary judgment motions exist. The motion cannot be made until sixty days after the general appearance of the party against whom the motion is directed. The motion must be set for hearing no later than thirty days prior to date of trial, absent a court order to the contrary. Notice of motion and supporting papers must be served on all other parties at least twenty-eight days before the time set for hearing. Responsive papers must be served and filed not less than fourteen days prior to the hearing, unless the court orders otherwise. Like the moving papers, opposition papers must include a separate statement responding to each of the material facts contended by the moving party to be undisputed. The responding party must refer to evidence showing that each of the facts is disputed. Failure to include such a statement can be a sufficient ground for granting the motion. If either party objects to any evidence being put forth, that objection must be made in conformity with Rule 343 and 345. These rules require that the objecting party either file written objections three court days before the hearing, or arranges to have a court reporter present at the hearing. DISCOVERY MOTIONS Some special rules do apply to various discovery motions and will be discussed in subsequent chapters which deal with discovery. TRIAL MOTIONS Common trial motions in state court include the following: Motion Controlling Law Motion for nonsuit CCP 581c Motion for directed verdict CCP 630 Motion for judgment CCP 631.8 POSTTRIAL MOTIONS Common posttrial motions in state court include the following: Motion Controlling Law Motion for judgment NOV CCP 629 Motion for new trial CCP 656 663.2 Ct. Rule 236.5 Motion to tax costs CCP 1033 1038 Motion for relief CCP 473 Trial and posttrial motions are more fully discussed in Chapter 16 of this supplement.