Pleadings - Ds Response, Claims by D, Amended Pleadings Flashcards Preview

CA Civil Procedure > Pleadings - Ds Response, Claims by D, Amended Pleadings > Flashcards

Flashcards in Pleadings - Ds Response, Claims by D, Amended Pleadings Deck (43):
1

Defendant’s response

Defendant must respond in an appropriate way within 30 days after service of process is deemed complete. (Federal court it’s 21 days after service.)

2

Types of Responses for D:

  1. General demurrer
  2. Special demurrer
  3. Motion to quash service of summons
  4. Motion to dismiss or stay for inconvenient forum (forum non conveniens).
  5. Motion to strike.
  6. Answer

3

General demurrer. This can used to assert some defenses. Which is the most important?

Failure to state facts sufficient to constitute a cause of action

So the court takes factual allegations as true and limits its
assessment to the complaint (and matters of which it takes judicial notice). If sustained, usually the court will let P try again.

4

What else can be raised by general demurrer?

Lack of Subject Matter Jurisdiction

5

Is a general demurrer considered a pleading?

Yes, but it acts like a motion (it can get the case dismissed) - there is no motion to dismiss in State action

6

Special demurrer. This can be used to assert many (pretty minor) defenses like:

The complaint is uncertain, ambiguous or unintelligible.

As with the general demurrer, the court treats allegations of fact as true and limits assessment to what’s in the complaint (and matters of judicial notice).

7

Examples of how to apply special demurrer:

  1. Lack of legal capacity.
  2. Existence of another case between the same parties on the same cause of action.
  3. Defect or misjoinder of parties.
  4. Failure to plead whether a contract is oral or written.
  5. Failure to file a “certificate of merit.”

8

Failure to file a “certificate of merit.”

This is required to sue architects, engineers, or land surveyors for professional negligence. In such cases, P’s attorney must file a certificate stating that she consulted with a professional and there is reasonable cause to
file the case.

9

Can these special demurrer defenses be raised in the answer as well?

Yes - as affirmative defense except the failure to file certificate of merit

10

What if the special demurrer defenses are not raised by demurrer or answer?

They are waived

11

Is a special demurrer considered a pleading?

Yes

12

In what cases are special demurrers not available?

In limited civil cases

13

Motions are either “granted” or “denied.” What about demurrers?

They are sustained or overruled

14

Motion to quash service of summons.
-- This is used to assert what defenses?

1) Lack of PJ
2) Improper process (improper documents)
3) Improper service of process

15

What do we call Motion to quash service of summons?

You are making a special appearance

16

Timing of Motion to quash service of summons

THIS MOTION MUST BE MADE BEFORE OR WITH A DEMURRER, ANSWER, OR A MOTION TO STRIKE. IF NOT, THE DEFENSES ARE WAIVED!

17

If the court denies the motion to quash, D must “plead” within:

15 days

And because demurrer is a pleading, you could demur or answer within 15 days.

18

The only way to seek appellate review of the denial of the motion to quash is:

to seek a writ of mandate

19

Motion to dismiss or stay for inconvenient forum (forum non conveniens). What is the timing for bringing this motion?

It is waived if it raised after a demurrer or motion to strike; you can make this motion after an answer

20

Motion to strike.

A party can file this to strike all or part of any pleading. The court may strike “irrelevant, false, or improper matter.”

21

Anti-SLAPP motion to strike.

The legislature is concerned about strategic lawsuits
against public participation (SLAPP). These are suits brought to chill the valid exercise of First Amendment rights (e.g., speech, petition of government).

22

Because so many anti-SLAPP motions were made, the legislature limited availability of the motion. So D is not supposed to make the motion if P’s case is truly in the public interest or on behalf of the general public.

The motion should not be made if...

 P is enforcing a public right

23

Answer. This is like the answer in federal court.
-- General denial:

this is a short document, in which D simply denies each and every allegation of P’s complaint. This is permitted if D can do so consistent with rules about frivolous litigation.

24

In stating affirmative defenses, D must:

state the ultimate facts sufficient to constitute an affirmative defense

25

If P filed a verified (under oath) complaint....

D must file a verified answer

26

Can an answer include a demand for recovery against P, e.g., damages?

No - you need a cross-complaint

27

Timing for Answer

No later than 30 days after service of process is deemed complete, D must (to avoid default) answer or demur or make one of the motions noted.

28

Claims by Defendant. As in federal court, D can assert a claim:

(1) against the plaintiff (an opposing party),

(2) against a co-defendant, or

(3) against an impleaded third-party defendant.

29

In California state courts, all three of these claims by Ds have the same name. What are they all called?

Cross-complaints

30

How should cross-complaint be placed in relation to the answer?

The cross-complaint must be a separate document from the answer

31

Timing for Cross-Complaint against P in relation to answer

This is to be filed before or at the same time as
the answer.

32

Cross-Complaint against P

It is against an opposing party (e.g., D v. P).

33

What if the cross-complaint by D against P arises from the same transaction or occurrence as P’s cause of action against D?

It is compulsory - so you must file it in this case

34

What if the cross-complaint by D against P does not arise from the same T/O as P’s cause of action?

It is permissive - so it may be filed in this case, but you don't have to at all

35

Timing for Cross-Complaint against co-party.

May be filed anytime before the court has set a trial date.

36

Cross-Complaint against co-party Rules

  1. It is a claim against a co-party, by a defending party.
  2. It must arise from the same T/O as the underlying dispute.
  3. It is never compulsory. The party may assert it here as a cross-complaint or may sue in a separate case.

37

Cross-Complaint against third-party defendant (TPD) Timing

Like federal impleader (third-party complaint). May be filed anytime before the court has set a trial date. It is never compulsory – so you don’t have to file it.

38

The person against whom any cross-complaint is asserted must do what?

Respond within 30 days

39

If the cross-complaint is asserted against one who has not yet appeared in the case....

 

it must be served with summons.

40

Amending pleadings.

Plaintiff has a right to amend (as a “matter of course”) before defendant answers or demurs.

After demurrer but before hearing on the issue raised by demurrer, any party has a right to amend once.

Beyond that, amendment is same as in federal court.

Any party can seek leave to amend anytime.

41

If the court sustains a demurrer or grants a motion to strike, the court will usually do so “with leave to amend.”

This allows P to...

try again

42

If the court sustains a demurrer or grants a motion to strike “without leave to amend,”....

P cannot try again

43

Relation back and fictitious defendants. Relation back is OK if:

  1. Original complaint was filed before the statute of limitations ran and contained charging allegations against the fictitious defendant(s).
  2. P was genuinely ignorant of the identity of the Doe defendant(s) and
  3. P pleaded that ignorance in the original complaint.