California Procedures: Chapter 4

Introduction

 

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Chapter 4:

 

Appearance by Defendant

 

First Read:

 

•  LBTN Ch. 4;

•  Companion Ch. 9

 

Introduction

 

Once served with the summons and complaint, the defendant has 30 days to take action or risk entry of default.  Remember - the 30 days starts running from the effective date of service of the summons and complaint. 

 

In most cases, the defendant will simply respond to the complaint by filing an answer.  Upon doing so, the defendant makes a general appearance in the case, thereby submitting to the jurisdiction of the court. 

 

In lieu of answering the complaint, or at least prior to answering the complaint, the defendant may attempt to end the case by filing a motion to quash service of summons, alleging a defect in the service of the summons and complaint, and claiming that the court has no jurisdiction over the defendant. 

 

The defendant may attack the complaint, claiming that it is defective for one or more reasons, by filing a demurrer, a motion to strike, or both. 

 

In addition to appearing in the action and responding to the complaint, the defendant may file an independent action against the plaintiff or a new party.  This is called a cross-complaint.

 

This chapter discusses the many different ways in which the defendant may take action.

 

Note:  The answer and cross-complaint are addressed in Ch. 4 of LBTN; the demurrer and motion to strike are addressed in Ch. 6 of LBTN.  They are all addressed in Ch. 9 of the Companion.

 

 

 

 

Lecture Notes

 

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Motion to quash service of summons -

Attacks service of summons and complaint.  Defendant moves the court for order finding that the summons was either:  (1) not properly served on the defendant, or (2) the court lacks power to exercise personal jurisdiction over the defendant because a constitutionally sufficient basis for jurisdiction does not exist between the defendant and the state (a minimum contacts issue). 

 

Normally when a party appears in a case, they are deemed to have submitted to the jurisdiction of the court.  How can a defendant appear in the case to argue that the court doesn’t have jurisdiction over it if the appearance is deemed submission to jurisdiction?  Solution is motion to quash -- constitutes a special appearance in the case solely for the purpose of challenging jurisdiction.  Court does not obtain jurisdiction over the defendant when defendant specially appears in this manner. 

 

If the court determines that it has jurisdiction over the defendant, the defendant is given time to respond to the complaint.  

 

Demurrer -

Attacks the complaint, arguing that it is legally insufficient.  Challenges defects either on the face of the pleading (e.g., the dates set forth in the complaint show that the action is barred by the statute of limitations; one or more elements of a cause of action is missing), or subject to judicial notice (e.g., the date a document was filed with the court or recorded by the county recorder; the weather on a particular date; the date upon which a historic event occurred).  Demurrers don’t challenge truthfulness of the complaint -- in fact, assume everything pled is true, and argue that plaintiff is still barred from recovery.

 

Total demurrer -

Made to entire complaint; partial demurrer - made to one or more causes of action. 

 

Defendant need not answer any part of the complaint until the demurrer is ruled upon.  If demurrer sustained, and defect curable, drafter allowed to amend within 10 days.  If demurrer overruled, demurring party must answer the complaint within 10 days. 

 

General demurrer -

Complaint fails to state a cause of action. 

 

Special demurrer -

5 grounds:  plaintiff lacks capacity to sue; another action pending between same parties on same matter; defective joinder; uncertain or ambiguous allegations (but demurrers based on uncertainty are disfavored); in breach of contract action failure to allege that contract was oral or written.  If not timely raised, special demurrers are waived.  Special demurrers are not allowed in limited civil cases. 

 

Motion to Strike -

Asks court to strike all or parts of complaint or other pleading (e.g., word, sentence, paragraph, cause of action) on ground that they are false (e.g., pleading contradicts document attached as exhibit), irrelevant (e.g., improper punitive damage claims or unauthorized requests for attorney fees), or improper (prayer in personal injury case sets forth a dollar amount; complaint pleads conclusions of law).

 

Grounds must appear on face of pleading or be subject to judicial notice.  

 

If granted, party who prepared pleading ordinarily allowed to file and serve an amended pleading, deleting part(s) ordered to be stricken.  Party who moved to strike must then file response to amended pleading. 

 

If denied, moving party must file answer to original pleading.

 

Answer

Defendant may respond to complaint by filing an answer, a pleading in which the defendant may admit allegations, deny allegations, and assert affirmative defenses.

 

Defendant’s goal in drafting answer = to resist demand for relief in complaint.  Defendant denies material allegations in complaint which defendant does not want to admit.  Once answer is filed and served, case is “at-issue” as to the denied allegations.  Those must be proved at trial.

 

Answers typically contain admissions, denials, and affirmative defenses, and look very much like complaints.  Formatting rules for answer are same as complaint:  on recycled pleading paper, Rule 2.111 format, caption, body, prayer, signature line.  Separately answered causes of action have separate centered headings typed in all caps as in the Complaint. 

 

Admissions: 

An allegation may be expressly admitted (e.g., “Defendant admits the allegations contained in Paragraph 3 of the Complaint.”) or may be deemed admitted if not expressly denied. In either case, plaintiff may use that admission as proof at trial without having to offer evidence on that issue. 

 

Denials: 

May be made on ground that allegations are false, or on ground that defendant is informed and believes they are false, or on ground that defendant lacks sufficient info to admit or deny and therefore denies. 

 

General denial - blanket denial of entire complaint.  Only allowed where complaint is not verified, or verified but seeks no more than $1,000 in damages.

 

Specific denial - denies specific parts of complaint (particular paragraph or paragraphs; particular sentence or allegation within paragraph, etc.).

 

Affirmative defenses:

Allege that defendant’s actions were justified, or that plaintiff has no legal right to bring the action against the defendant.  Stated in addition to admissions and denials as independent reasons that plaintiff should not recover on complaint, even if allegations in complaint are true.  Affirmative defenses have headings like causes of action, centered in all caps, sometimes each having an introductory clause.  Paragraphs of the affirmative defenses are numbered consecutively following the last answering paragraph.

 

For example: 

 

contributory negligence - Yes, plaintiff was injured and suffered damages as alleged, but because plaintiff’s own negligence contributed to the cause of the injury, plaintiff is not entitled to recover from defendant.

 

assumption of risk - Yes, plaintiff was injured and suffered damages as alleged, but because plaintiff assumed the risk of injury, plaintiff is not entitled to recover from defendant.

 

self-defense - Yes, plaintiff was injured as described, and the injury was caused by defendant, but because defendant acted in self-defense, plaintiff has no right to recover from plaintiff.

 

fraud - Yes, defendant breached the contract by refusing to perform, but the refusal was justified because the plaintiff fraudulently induced defendant to enter into the contract.

 

expiration of statute of limitations - Yes, everything the plaintiff alleges is true, but the time within which to file suit expired six months ago, so plaintiff has no right to recover from defendant. 

 

Except for lack of subject matter jurisdiction, any affirmative defense not timely raised is waived.  Defendant bears burden of proof on affirmative defenses.

 

 

Hints for Drafting Answer

 

•     Plead ultimate facts, not conclusions of law.

•     Inconsistent defenses are allowed.  Defendant could deny that he defamed plaintiff, yet raise affirmative defense asserting that any alleged defamation was protected by a privilege. 

•     Each answer must contain effective denials and appropriate defenses or objections for each cause of action in the complaint. 

•     Several allegations may be denied in a single statement.

•     Allegation may be admitted in part and denied in part.

•     Avoid denials of conjunctive allegations that may result in a negative pregnant -- a denial in which person may impliedly admit more than she/he denies.

 

Prayer appears after affirmative defenses.  Doesn’t seek affirmative relief, but may seek reimbursement of expense of defending the lawsuit, i.e., attorney fees and costs. 

 

If complaint is verified, answer must be verified unless case is limited civil case.

 

 

Filing and Service of Answer 

 

Answer with proof of service is filed with court and served on plaintiff (and any other parties).  Appearance fee required unless waived.  Service may be by personal service, mail or overnight delivery.  Service by fax only allowed if parties agree and have written confirmation of agreement. 

 

NOTE:  When cross-complaint against plaintiff is being filed and served, answer and cross-complaint must be filed and served together within time for filing answer.  (See C.C.P. §428.50).

 

 

Cross-Complaint

 

Defendant might have cause of action arising out of subject matter of Complaint against any combination of plaintiff, another party to the action, or another person or entity not yet a party to action.  Defendant may file, in addition to filing an Answer to the Complaint, pleading called a “Cross-Complaint” against those other individuals or entities.  A cross-complaint is not a response to a complaint.  It is a completely independent action typically filed by defendant against another party, using same case number as the original complaint.  Completely independent = if complaint is dismissed, cross-complaint may still go on. 

 

Cross-Complaint = only pleading whereby defendant can bring case against another party or another person or entity.  Party who sues = “cross-complainant,” and party who is sued = “cross-defendant.” 

 

Unknown cross-defendants named in cross-complaint = ROES.

 

Format:  Cross-complaint always has “double-boxed caption” -- lower box naming parties to cross-complaint.  Double-boxed caption becomes new caption for the entire action.  Otherwise, parts of cross-complaint and formatting rules = same as complaint. 

 

 

Compulsory vs. Permissive Cross-Complaint: 

 

•          If defendant’s causes of action against plaintiff are related to subject matter of complaint, cross-complaint = compulsory, i.e., if not raised through cross-complaint during lawsuit, waived. 

•          Defendant may (permissive - not compulsory) file cross-complaint against the plaintiff (or against another defendant who has already cross-complained against the defendant) even if subject matter of cross-complaint = completely unrelated to the complaint.

•          Defendant may (permissive - not compulsory) only join new party as cross-complainant if defendant’s claim against that new party arises out of same transaction or occurrence as complaint, or involves claim, right or interest in the property or in the controversy which is the subject of the complaint.  (James Wrongdoer’s cross-complaint against Jim’s Auto Shop in the Procedural Guide, § 4.5 = example of permissive cross-complaint against a new party.)

 

 

Deadline for Filing and Serving Cross-Complaint:

 

•          Cross-Complaint against party who filed a Complaint against the cross-complainant, e.g., plaintiff, must be filed at same time as Answer, unless leave of court obtained. 

•          Cross-Complaint against anyone but plaintiff may be filed any time before court sets trial date.  (C.C.P. § 428.50)

 

 

Method of Filing/Service:

 

•          Cross-complaint against plaintiff or existing party filed and served like any other subsequent document (via personal delivery, mail, overnight delivery, or if agreed and confirmed in writing, by fax) all with appropriate proof of service.

•          Cross-complaint against new party = more complicated than when against existing party - court must obtain jurisdiction over new party by issuing summons on cross-complaint and serving process in one of manners described in Chapter 1, e.g., personal service, substituted service, notice and acknowledgment, publication.  At time of service, must also serve: the most recently amended Complaint (C.R.C., Rule 3.222), any Answers filed in the case (C.R.C., Rule 3.222), and all items which would have had to be served with the Complaint, i.e., the ADR Package, Clerk’s notices, including notice of case assignment, notice of case management conference, referrals to mediation/arbitration, etc. (C.R.C., Rule 3.221(c))

•          Cross-complaint against new party must be served and proof of service of summons filed w/in 30 days of filing cross-complaint (not 60 days as is case with Complaint).  (C.R.C., Rule 3.110(b)) 

 

 

Time to Respond: 

 

Cross-Defendant must file and serve response to Cross-Complaint within 30 days of service of Cross-Complaint.  Any response which may be used to respond to Complaint may be used to respond to Cross-Complaint.  (C.C.P. § 432.10).

 

 

 

 

 

 

 

 

 

Application

 

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Application #1

 

You are employed by George R. Bradbury of the firm of Stein & Archer, located in Oakland, CA.

 

Mr. Bradbury represents the defendant, Bradley Parker, in Randolph v. Parker, a case involving an automobile collision in which the plaintiff claims damages in excess of $50,000.  Mr. Parker drove a car which collided with Randolph’s vehicle.  Parker was personally served with the Summons and Complaint on August 2, 2013. 

                                                                                               

Upon hearing Mr. Parker’s version of the facts, Mr. Bradbury concludes that Mr. Parker did absolutely nothing to cause the accident, and in fact the accident was totally plaintiff Randolph’s fault. 

 

Mr. Bradbury asks you to get answers to the following:

 

A. By what date must an Answer to the Complaint be filed?

 

B. May a General Denial be filed in response to the Complaint?

 

C. Does the Answer have to be verified?

 

D. Procedurally, what should we do about the fact that we believe the accident was totally the plaintiff’s fault, and by what date must we do it?

 

 

Application #2

 

You still work for George R. Bradbury.  The answer and cross-complaint against the plaintiff have been filed and served.  After investigating further, Mr. Bradbury learns that the car Mr. Parker was driving at the time of the accident belonged to his neighbor (Mark Farmer), and that after the accident, Farmer said: “Oops, I forgot to tell you that I’d been having trouble with the car.  It’s so strange - sometimes it suddenly speeds up, and sometimes the brakes don’t seem to work.  I’ve been meaning to have a mechanic look at it.”  Mr. Bradbury decides he’d better file a Cross-Complaint against Mr. Farmer.

 

Mr. Bradbury asks you to get answers to the following:

 

A. When would the cross-complaint against Mr. Farmer have to be filed?

 

B. Can Mr. Farmer be served with the cross-complaint by first-class mail?

 

C. Does an appearance fee have to be submitted with the cross-complaint?

 

D. How many days after filing the cross-complaint must it be served on the cross-defendant?

 

 

 

 

 

 

 

 

 

Application Answers

 

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Answer to Application #1

 

A.        September 3, 2013.  The Answer must be filed within 30 days from the effective date of service.  30 days after 8/2/13 is Sunday, September 1, 2013. C.R.C., Rule 1.10(a) provides that if the last day to perform an act which must be performed within a specified period of time (e.g., filing and serving the answer within 30 days) falls on a weekend or legal holiday, the period in which to perform is extended to the next court day.  Monday, September 2, 2013 is Labor Day, so the next court day is 9/3/13.

 

B.         We do not have enough information to answer this question.  A general denial, a blanket denial of the entire complaint, may only be filed if:  (1) the complaint was not verified, or (2) it was verified, but seeks no more than $25,000 in damages.  Here, the facts do not indicate whether the complaint was verified.   We do know that it involves more than $50,000, so if it was verified, a general denial may not be filed in response.

 

C.         Again, we do not have enough information to answer this question.  The answer only has to be verified if the complaint is verified, but we are not told whether the complaint is verified. 

 

D.        We must file a cross-complaint against the plaintiff.  Because the defendant’s causes of action against the plaintiff are related to the subject matter of the complaint, the cross-complaint is compulsory; if not raised through a cross-complaint, the causes of action are waived.  The cross-complaint must be filed with the answer.

 

 

Answer to Application #2

 

A.        Because Mr. Farmer would be a new party, the cross-complaint may be filed any time before the court sets trial date.  (C.C.P. § 428.50)

 

B.         No.  Mr. Farmer, as a new party, must be brought into the case by serving him with a summons and cross-complaint by one of the allowable methods of service of process - personal service, substituted service, mail with notice and acknowledgment of service, or publication.

 

C.         No.  Since the answer was already filed, the defendant’s appearance fee has been paid.

 

D.        Within 30 days.

 

           

 

 

 

Chapter Review

 

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1.         What is the difference between a compulsory cross-complaint and a permissive cross-complaint?

 

2.         What is an affirmative defense?

 

3.         What is a ROE and what is its purpose? 

 

4.         What are the two ways in which an allegation in a complaint may be admitted?

 

5.         What is the difference between a general denial and a specific denial?

 

 

 

Chapter Review Answers

 

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1.         A compulsory cross-complaint is an action by the defendant against the plaintiff relating to the subject matter of the complaint.  It must be brought at the same time as filing the answer or is waived.

 

 

2.         Affirmative defenses are independent reasons that the plaintiff should not recover on the complaint, even if the allegations in the complaint are true.  They allege that the defendant’s actions were justified, or that the plaintiff has no legal right to bring the action against the defendant.  They are alleged in the answer.

 

 

3.         A ROE is a fictitiously named cross-defendant whose identity the cross-complainant does not know at the time of drafting the complaint.  By holding the place for a later-identified cross-defendant, ROE designations are universally used in state court practice to permit filing a cross-complaint before the expiration of the statute of limitations.  Once the identity of a particular ROE cross-defendant is ascertained, the cross-complainant should amend the cross-complaint to identify that particular ROE.

 

 

4.         An allegation may be admitted either by expressly admitting it or by failing to deny it.

 

 

5.         A general denial is a blanket denial of all of the allegations in a complaint.  A specific denial denies a specific part of the complaint, e.g., a particular sentence, paragraph, or cause of action.

 

 

 

Chapter Quiz

 

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Click here for the Chapter Quiz.

 

This is the tool you will use to evaluate whether you are ready to proceed to the next Chapter.

 

 

 

Edited July 10, 2013