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Chapter 5 1.  Documents that define the plaintiff’s case (cause of action)  Documents that define defendant’s response and affirmative defenses  Documents.

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Presentation on theme: "Chapter 5 1.  Documents that define the plaintiff’s case (cause of action)  Documents that define defendant’s response and affirmative defenses  Documents."— Presentation transcript:

1 Chapter 5 1

2  Documents that define the plaintiff’s case (cause of action)  Documents that define defendant’s response and affirmative defenses  Documents that define defendant’s claim for relief (cause of action)  Documents that define plaintiff’s response and affirmative defenses 2

3  Complaint  Answer  Demurrer  Cross Complaint  Answer or Demurrer to Cross Complaint 3

4  Complaint  Answer  Counterclaim (incl. With Answer)  Cross Claim  Third Party Action  Reply to Counterclaim/Answer to Cross Claim or Third Party Action 4

5  Contain a caption and docket number  Contain “allegations”  Allegations are claims  Allegations must be proven at trial 5

6  Traditional pleadings/Attorney drafted ◦ Prepared on pleading paper ◦ Similar to pleadings filed in federal cases  All pleadings in federal court are “traditional”  Judicial Council Forms ◦ Used for some types of complaints (and other pleadings) in California ◦ Most civil complaint forms are optional ◦ Located at 6

7  Technical requirements in the California Rules of Court ◦ Pleading paper—26-28 numbers ◦ Double/1 ½ space ◦ 12 point ◦ Attorney information on page 1 ◦ Court name on line 8 or below ◦ Footer describing document

8  Caption  Identifies court and parties  Contains title and docket number  Allegations  Describes cause of action  Can have multiple causes of action  Prayer  Subscription 8

9  Substantive/content requirements  Federal court—statement of jurisdiction  State court—cause of action/ request for relief

10  Preliminary paragraphs ◦ Identify the parties  Capacity  Fictitious names  Paragraphs establishing venue and jurisdiction  Federal court—must be explicit  State court—can be implicit  “Doe” allegation (if appropriate)  Compliance with claim requirements 10

11  Liability Paragraphs ◦ Describe using “ultimate facts”  What happened (generally) but include dates to show case filed within SOL  What injuries were or will be suffered  What damages were or will be incurred  (In personal injury cases, if claim is for more than $25K do not need to state a specific amount.) ◦ Form books are helpful 11

12  Information and belief  verification 12

13  Real Party in Interest ◦ collection agency v. the creditor/subrogation  Status ◦ type of entity  Capacity ◦ minors and incompet. ◦ Guardians ad litem  Corp. and other businesses ◦ piercing the corporate veil  Government Agencies ◦ immunity  Fictiously named Defs  Defs using a fictitious name (dba) 13

14  Permissisve joinder  common question of fact or law  Compulsory joinder  if parties not joined, then action cannot proceed  indispensible parties  I.e. quiet title actions  Class Actions  Interpleader 14

15  Compensatory ◦ Tort: Special and General ◦ Contract: Standard and Consequential  Punitive: Extreme Conduct, I.e. fraud, gross negligence, wilfull acts  Attorney Fees: Only when provided for in contract or by law 15

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18  Cover Sheets  Clerk’s Office  Number of copies  Filing fee  Fax filings  Electronic filings 18

19  In Calif. A judicial council form  tells def to answer or suffer default  “Issued” (not filed) at time of filing complaint 19

20  Actions at Law  Money Damages  Actions in Equity  Specific Relief 20

21  Tort Cases  Contract Cases (Breach) 21

22  Contract ◦ Specific Performance ◦ Injunction ◦ Declaratory Relief ◦ Rescission and Restitution ◦ Reformation  Real Estate ◦ Quiet Title ◦ Establish lien ◦ Unlawful Detainer ◦ Retaliatory Eviction 22

23  Wills ◦ Determine validity of will  Personal Property ◦ Replevin  Business ◦ Dissolving Partnership or Corp. ◦ Accounting ◦ Shareholder Derivative  Imposing a Constructive Trust 23

24  Money damages--Actions at law  Specific relief--Actions in equity 24

25  Temporary Restraining Order (TRO)  ex parte  need pending case  need papers for preliminary injunction  Preliminary Injunction  requires court hearing (set up like motion) 25

26  Anyone over age of 18, not a party to lawsuit and U.S. Citizen can serve 26

27  Federal: prefers waiver (mail)  Calif. ◦ Personal service ◦ Substituted service ◦ Acknowledgment and Receipt ◦ Publication ◦ Certified mail--If def out of state 27

28  Caslif: CCP et seq  Corp: Agent for service of process or officers  Minor: parent or guardian and minor if at least 12 28

29  Depends on method of service  Return of summons 29

30  Statement under penalty of perjury  Back of summons  Other forms 30

31  Very liberal rules  Once, w/o leave of court if no answer filed  After answer, w. leave of court 31


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