CA Pleadings

Question 1

Pleading Standard

Answer 1

Comp/X-Comp must contain

(1) statement of the fact constituting the COA and
(2) a demand for judgment for relief.

Question 2

Fact Code Pleading

Answer 2

Fact/code pleading: Pleader must state the “ultimate facts” supporting his prima facie COA (just right: no “conclusions” and not too detailed to be considered “evidence”).

Question 3

Demand for Relief Exceptions:

Answer 3

EXCEPT:

1) PI/WD: P may NOT state the amt of actual damages or punitive damages.
2) P MAY SERVE OR D MAY REQUEST a separate statement setting nature of damages sought.
3) Actual Damages statement can also incl. statement of punitive damages.
3) No default against D may be taken unless P has served the damages statement.

Question 4

Demand for Relief: Short

Answer 4

MUST state amount of actual damages EXCEPT: PI/WD NOT state amount

Question 5

Demand for Relief exception for Punitive Damages=PPPP

Answer 5

Exception – Punitive Damages: P is PROHIBITED from incl. a claim for punitive damages in a complaint. If P intends to seek punitive damages, P MUST PERSERVE THE RIGHT by serving D a stmt of punitive damages.

Question 6

Doe Defendant (DOG3)

Answer 6

D can be sued under a fictitious “DOE” designation if:

DOG-3

1) Original complaint is timely filed against all Ds (including Does) and
2) P’s GENUINE IGNORANCE of Doe’s identity is pleaded.
3) P has 3 years from filing to identify & serve Does.

Question 7

Verified Complaints: Short STATEMENT

Answer 7

Verified Complaints:

1) a DECLARATION signed by P
2) under PENALTY OF PERJURY
3) FACTS alleged in the complaint are
4) TRUE to P’s personal knowledge,
5) UNLESS alleged on INFORMATION/BELIEF

Question 8

ANSWERS require/do not require:

DAV SD

Answer 8

All SUBSTATIVE Answers Require VERIFICATION. SAV

1) ONLY required in certain types of cases (quiet title action, family code pleadings, etc.)
2) EVIDENTIARY VALUE Heightened b/c it is verified complaint = sworn affidavit with admissions.
3) D’s ANSWER to a VERIFIED complaint MUST be VERIFIED and MUST include SPECIFIC DENIALS rather than general denials.

Question 9

When Complaint is verified:

Answer 9

D’s ANSWER to a VERIFIED complaint MUST be VERIFIED and MUST include SPECIFIC DENIALS rather than general denials.

Question 10

When complaint is verified and defendant is a government entity

Answer 10

D/Government does not need to verify the complaint.

Question 11

When P sues a Government Agency or health care provider:

Answer 11

P who intends to sue governmental agency must

1) file a NOTICE OF THE CLAIM
2) w/appropriate public office w/in 6 months of accrual of the claim.
3) P who intends to sue HC provider for profess neg must serve ntc 90 days prior to lawsuit.

Question 12

CA NOTICE OF CLAIM for a Government Agency:

Answer 12

P who intends to sue governmental agency must file a NOTICE OF THE CLAIM

1) w/appropriate public office w/in 6 months of accrual of the claim. P who intends to sue HC provider for profess neg must serve ntc 90 days prior to lawsuit.

Question 13

Atty Subscription:

Answer 13

Atty Subscription: Attorney subscribes complaint representing that pleading is warranted under LAW AND FACT=NOT submitted for IMPROPER PURPOSES

Question 14

Cross-Complaints (against P or D2 or 3rd pty)

Answer 14

1) May be against P or D2 or 3rd pty or against an impleaded TPD.
2) MUST be a separate document from the Answer
3) Must respond w/in 30 days.

Question 15

3. Cross-Complaints (against P or D2 or 3rd pty) D/L = b4 or at time of answer

Answer 15

1) May be against P or D2 or 3rd pty or against an impleaded TPD. 2) MUST be filed as a separate document from the answer. 3) Must be filed??? before or at time of answer. 3) Must respond w/in 30 days.

Question 16

Damages request:

Answer 16

D may request statement of damages. P must provide w/in 15 days so D is put on notice of how much P wants.

Question 17

Compulsory: Cross Complaint

Answer 17

Compulsory: X-Comp 1) COA related to P’s COA 2) arises from same T&O or series of T&O. 3)

Question 18

Permissive: Cross Complaint against

Answer 18

Permissive: All non-compulsory cross-comps including those not related.

Question 19

Cross-complaint against a Co-D/3rd Pty:

Answer 19

ALWAYS PERMISSIVE. 1) Arises out of same T&O as COA against him or 2) same prop or controversy subject of action. 3) If Co-D/3rd Party has not appeared in case, MUST serve summons.

Question 20

Response to Pleading from D: time to respond

Answer 20

D has 30 days from service to answer. D can file response at the same time or instead of filing an answer.

Question 21

Response to pleading instead of Answer

Answer 21

D may file a Demurrer or Motion to Strike that the court overrules, must answer w/in 10 days of ruling

Question 22

Demurrer (all) Rule statement

Answer 22

General Demurrer: challenges legal sufficiency. 1) Failure to state a COA in a complaint or 2) an affirmative defense in an answer.

Question 23

Demurrer–General

Answer 23

1) Failure to state facts sufficient for a claim/ 2) lack of SMJ (D only); 3) must be raised by party (not court)

Question 24

Special Demurrer:

Answer 24

1. Special Demurrer: unlimited only;
2. Grounds: P can only file special demurrers to D’s answer on grounds that: 1) Answer is uncertain OR 2) It cannot be determined whether K is written or oral.

Question 25

On what grounds does P file a special Demurrer to D’s Answer?

Answer 25

P can only file special demurrers to D’s answer on grounds that: 1) Answer is uncertain OR 2) It cannot be determined whether K is written or oral.

Question 26

Motions Rule

Papers:

M

N of M

E

M o P and A

PO

Timing

Answer 26

Motions: An application to the court for an order. Papers:

1) Motion,
2) Notice of Motion,
3) Evidence,
4) Memo of points and authorities
5) + Proposed Order.

Must meet + confer. Service: 16 CT Days with add’l days depending on service. (Some motions req more ntc (MSJ)

Question 27

Motion Papers

Answer 27

Papers: 1) Motion, 2) Notice of Motion, 3) Evidence, 4) Memo of P&A, 5) + Proposed Order.

Question 28

Motion to Quash Service of Summons:

Answer 28

Motion to Quash Service of Summons: Special defense motion for 1) lack of PJ 2) improper process 3) improper service of process 4) special appearances. MQS MUST be made before or with a demurrer, answer, or motion to strike, or else D waives. If raised IN the answer=D waives PJ. If crt denies the motion, D must plead w/in 15 days.

Question 29

When raise/respond to a Motion to Quash Service of Summons

Answer 29

MQS MUST be made before or with a demurrer, answer, or motion to strike, or else D waives.

If raised IN the answer=D waives PJ.

If crt denies the motion, D must plead w/in 15 days.

Question 30

Spec Demurrer Defenses

Amb

Mis

Another c

K–written

Answer 30

Spec Demurrer Defenses

1) pleading is ambiguous,
2) lack of legal capacity to sue,
3) misjoinder of parties,
4) existence of another case between P and D on the same COA,
5) In K action, cannot be determined whether K is written, oral, or implied by conduct,
6) certain req certificates not filed.
* If defenses not asserted by demurrer or answer they are waived.*

Question 31

Motion to Dismiss or Stay for Inconvenient Forum:

Timing

Answer 31

Motion to Dismiss or Stay for Inconvenient Forum: Must raise before demurrer or motion to strike or else waived.

Question 32

Motion to Strike: aimed at pleadings containing immaterial or redundant issues (demand for a jury trial when there is no right to one). A responsive pleading to complaint

Irr

F

Im

Grounds

Answer 32

Motion to Strike: aimed at pleadings containing immaterial or redundant issues (demand for a jury trial when there is no right to one).

A responsive pleading to complaint = move to strike out any 1) irrelevant, 2) false, or 3) improper matter inserted in any pleading, or strike out all or any part of any pleading not conforming to the laws of this state, a court rule, or an order of the court.

1) Grounds must appear on face of pleading or come from matters subject to judicial notice.
2) Constitutes general app. if D has not previously appeared.
3) Crt may bring MOS on its own motion.

Question 33

Motion for Judgment on the Pleadings (AKA delayed demurrer)

• Material fact….deemed…..grounds for motion…face… or …….based on …….subject to judical….*
• Grounds: 1 and 2*
• timing:*

Answer 33

Motion for Judgment on the Pleadings (AKA delayed demurrer): Material facts properly pleaded are deemed true and the grounds for motion must appear on face of pleading or be based on matters subj to judicial notice.

D can make motion on the ground that

1) Ct lacks SMJDX;
2) Complaint fails to state facts sufficient to constitute a COA.

P can motion as to D’s affirm defense in answer. Sua Sponte: Ct can grant judgement on pleading on its own motion.

Timing: D can file motion after filing an Answer and after the time to file demurrer has expired.

Question 34

Anti-SLAPP: Special motion to strike…

Timing:

Burden:

Answer 34

Anti-SLAPP: Special motion to strike a complaint targeted against D’s constitutionally protected speech/1^st Amendment. Seeks to show P’s lawsuit has no merit. SLAPP = Strategic Lawsuit Against Public Participation.

1. File w/in 60 days of the (SLAPP) complaint. Stays all discovery.
   
   1. D first has burden to show prima facie case that P’s COA arises based on an act in furtherance of D’s rights in connection with “public interest” or at a “public forum.”

Question 35

SLAPPback Motion:

Mal….Pro

Answer 35

SLAPPback Motion: D who wins on anti-SLAPP motion may assert malicious prosecution by P.

Question 36

Answer

What is it: D’s substantive…

Why do it: Filing of answer places all unadmitted…

What is in it: Answer must contain…

When:

What is a material allegation?

Answer 36

Answer:

What: D’s substantive response to the factual allegations of the complaint.

Why: Filing of answer places all unadmitted material facts in the complaint “at issue.”

How: Answer must contain denials and affirmative defenses.

When: No later than 30 days after service.

• Material allegation= essential to the claim or defense and which could not be stricken from the pleading w/o leaving it insufficient as to that claim or defense.

Question 37

Material Allegation is essential to the claim because…

Answer 37

Material allegation= essential to the claim or defense and which could not be stricken from the pleading w/o leaving it insufficient as to that claim or defense.

Question 38

ANSWER: DENIALS BY THE DEFENDANT

Answer 38

Denials: D’s denial of the allegations=general or specific.

MAY NOT request affirmative relief in ANSWER! Must file a cross complaint.

Question 39

General Denial (to the Answer)

Specific Denial (to the Answer)

Answer 39

1. General Denial: Blanket statement denying each and every material allegation of unverified complaint.
2. Specific denial: Deny paragraphs/parts of complaint on personal knowledge, info, belief or lack of sufficient info. Not avail in limited cases.

Question 40

General Denial (of Answer)

Answer 40

General Denial: Blanket statement denying each and every material allegation of unverified complaint.

Question 41

specific denial (of answer)

Answer 41

Specific denial: Deny paragraphs/parts of complaint on personal knowledge, info, belief or lack of sufficient info. Not avail in limited cases

Question 42

Affirmative Defense: Raises new, ……….. issues that prevent…….. recovering, even if all the ……complaint were ……true.

Defendant ….. of ……proof on affirmative …….

Most …..if not pled in A….r.

Answer 42

Affirmative Defense: Raises new, independent issues that prevent P from recovering, even if all the alleg of the complaint were proven true.

Defendant has burden of proof on affirmative defenses.

Most waived if not pled in Answer.

Question 43

Amended Pleadings

As a right

Answer 43

1. Amending Pleadings
   
   1. As of Right: P has a right to amend ONCE before the Answer or Demurrer to the complaint is filed, or after the Demurrer is filed but before it is heard.

Question 44

Amended Pleadings as a matter of course

Answer 44

As a matter of course: Any party may also amend ONCE after Demurrer but before hearing on the issue raised by Dem.

Question 45

Court Order is NOT necessary for ???

Answer 45

Court Order: All amendments other than “as of right” and “as a matter of course” pleadings require court order=liberally granted.

Question 46

After Demurrer or Motion to Strike:

Timing

Answer 46

1. After Demurrer or Motion to Strike: If court grants=party has 10 days to amend unless court order specifies otherwise.

Question 47

1. Doe Defendants CA allows “doe” … when…
2. 1)Complaint was….. includes ….. against “doe” Ds. 2) P was …. ig….of the identity of the …. ….dant.

Answer 47

Doe Defendants CA allows “doe” designations. 1)Complaint was timely filed, includes allegations against “doe” Ds. 2) P was genuinely ignorant of the identity of the “doe” defendant.

Question 48

Relation Back: MUST:

• 1) rest on same …
• 2) seek recovery of the ….as in org. pleading; and
• 3) refer to the …..and ……., _/_ as in the original pleadings
• 4) for SOL: w/in….days after filing the complaint (limit for the service of process),
• 5) newly added …. received ….of the action so as not to be ….. against, b/c of …. of ID, the action would have been brought against it.

Answer 48

Relation Back: MUST:

• 1) rest on same gen set of facts;
• 2) seek recovery of the same injury(ies) as in org. pleading; and
• 3) refer to the same accident and conduct, T/O as in the original pleadings
• 4) for SOL: w/in 120 days after filing the complaint (limit for the service of process),
• 5) newly added defendant received notice of the action so as not to be prejudiced against, b/c of mistake of ID, the action would have been brought against it.

Question 49

FRIBOLOUS LAWSUITS

SANCTIONS

Answer 49

Truth in Pleadings

Frivolous Lawsuits: Sanctions avail under 128.7 for frivolous suits upon MOTION BY PARTY or court if pty seeking exercised due diligence in bringing motion.

Question 50

To avoid Frivolous Lawsuits and Sanctions

128.7: requires …

Inquisitive Lawyer Nerds Escaped Secretively:

Sanctions may be imposed…

No safe harbor when

Answer 50

1. 128.7: requires all ptys (atty/pro se) to sign all pleadings, mtns, and papers, filed w/or presented to the ct, certifying:

Inquisitive Lawyer Nerds Escaped Secretively: allegations/arg must be based on

• (1) reasonable Investigation
• (2) be supported by LAW
• (3) be Non-frivolous and not meant to harass; and
• (4) have Evidentiary support (or likely to after discovery).

Sanctions: may be imposed for violation.

Subject to 21-day Safe Harbor Rule = served party has 21 days to w/d or correct pleadings giving rise to the sanctions motion.

NO safe harbor if bad faith* or *frivolous tactics in litigation; punitive damages assessed by court if convict. Winning pty entitled to reas expenses + atty fees. NOT 4 DISCOVERY.

Question 51

Sanctions Per CCP 128.5

Answer 51

Sanctions Per CCP 128.5: applies to action or tactics

• Court can order party/atty to pay reasonable expense including atty fees incurred by another pty as a result of bad-faith actions or tactics that are frivolous
• (means totally and completely without merit and solely meant to harass) or solely intended to cause unnecessary delay.

Question 52

Vexatious Litigants: a P can be if…

1 in pro per

2 repeated attempted to

3 repeated filed…

4 previously designated

5 D can move to…

6 Judge can order…

Answer 52

Vexatious Litigants: a P can be if

• (a) has comm or maintained in prop per at least 5 suits in last 7 years which were adversely against P;
• (b) repeatedly attempted to relitigate matter determined against P;
• (c) repeatedly filed unmeritorious motions, pleadings, disc requests or other friv/delaying tactics; or
• (d) ct previously designated P as vexatious litigant.
• IF P VL + no reas probability of prevailing D can move ct to require P post a security.
• Judge can order VL seek leave of court b4 filing new litigation.