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Let’s Sue! PLEADINGS

Let’s Sue! PLEADINGS. Civil Litigation I Today’s Objectives. You will learn: The general requirements for all pleadings What rules apply for filing and service of pleadings How to draft a complaint What pleadings the defendant can file About special pleadings that are used

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Let’s Sue! PLEADINGS

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  1. Let’s Sue! PLEADINGS

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

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

  4. Basic Pleadings • Complaint • Answer to Complaint • Demurrer • Cross-complaints

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

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

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

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

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

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

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

  12.  Complaints  Answers  Cross-complaints

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

  14. No title… just liked the photo

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  29. What Else? Special Pleadings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  46. Questions?

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