Chapter 5 1. Documents that define the plaintiff’s case (cause of action) Documents that define...
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Transcript of Chapter 5 1. Documents that define the plaintiff’s case (cause of action) Documents that define...
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
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Complaint
Answer Counterclaim (incl. With Answer) Cross Claim Third Party Action
Reply to Counterclaim/Answer to Cross Claim or Third Party Action
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Contain a caption and docket number
Contain “allegations” Allegations are claims
Allegations must be proven at trial
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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
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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
Caption Identifies court and parties Contains title and docket number
Allegations Describes cause of action Can have multiple causes of action
Prayer Subscription
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Substantive/content requirements Federal court—statement of jurisdiction State court—cause of action/ request for
relief
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
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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
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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)
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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
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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
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Before Filing Your Complaint Be Sure That You Have:
Reviewed all local rules for special format requirements Included title of court Properly identified and named the parties in the caption Titled the complaint (i.e. Complaint for Damages) Demanded a Jury (if applicable) Stated one or more complete causes of action, each containing
(expressly or by incorporation by reference) a statement of jurisdiction identification of the status and capacity of the parties a basis for a recognized claim a description of the damages
Stated at least one cause of action against each defendant Included a prayer or request for damages Affixed the proper signature Attached any required cover sheets
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In Calif. A judicial council form tells def to answer or suffer default “Issued” (not filed) at time of filing
complaint
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Contract◦ Specific
Performance◦ Injunction◦ Declaratory Relief◦ Rescission and
Restitution◦ Reformation
Real Estate◦ Quiet Title◦ Establish lien◦ Unlawful Detainer◦ Retaliatory Eviction
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Wills◦ Determine validity
of will
Personal Property◦ Replevin
Business ◦ Dissolving
Partnership or Corp.◦ Accounting◦ Shareholder
Derivative
Imposing a Constructive Trust
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Temporary Restraining Order (TRO) ex parte need pending case need papers for preliminary injunction
Preliminary Injunction requires court hearing (set up like motion)
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Federal: prefers waiver (mail) Calif.
◦ Personal service◦ Substituted service◦ Acknowledgment and Receipt◦ Publication◦ Certified mail--If def out of state
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Caslif: CCP 416.10 et seq Corp: Agent for service of process or
officers Minor: parent or guardian and minor if at
least 12
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