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The Complaint

The Complaint. Chapter 5. Pleadings. 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)

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The Complaint

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  1. The Complaint Chapter 5

  2. Pleadings • 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

  3. Pleadings--California • Complaint • Answer • Demurrer • Cross Complaint • Answer or Demurrer to Cross Complaint

  4. Pleadings--Federal Court • Complaint • Answer • Counterclaim (incl. With Answer) • Cross Claim • Third Party Action • Reply to Counterclaim/Answer to Cross Claim or Third Party Action

  5. Pleadings in General • Contain a caption and docket number • Contain “allegations” • Allegations are claims • Allegations must be proven at trial

  6. California Pleadings • 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 www.courts.ca.gov

  7. Pleading Requirements • 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. THE COMPLAINT • Caption • Identifies court and parties • Contains title and docket number • Allegations • Describes cause of action • Can have multiple causes of action • Prayer • Subscription

  9. Pleading Requirements • Substantive/content requirements • Federal court—statement of jurisdiction • State court—cause of action/ request for relief

  10. The Cause(s) of Action • 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

  11. Cause of Action (cont.) • 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

  12. Pleading Issues • Information and belief • verification

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

  14. Joinder of Parties • 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

  15. Damages • 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

  16. Let’s Review a Complaint:

  17. COMPLAINT CHECKLIST

  18. Filing of the Complaint • Cover Sheets • Clerk’s Office • Number of copies • Filing fee • Fax filings • Electronic filings

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

  20. Lawsuits • Actions at Law • Money Damages • Actions in Equity • Specific Relief

  21. Actions at Law • Tort Cases • Contract Cases (Breach)

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

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

  24. Demand for Relief • Money damages--Actions at law • Specific relief--Actions in equity

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

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

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

  28. Who is Served • Caslif: CCP 416.10 et seq • Corp: Agent for service of process or officers • Minor: parent or guardian and minor if at least 12

  29. Completion of Service • Depends on method of service • Return of summons

  30. Proof of service • Statement under penalty of perjury • Back of summons • Other forms

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

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