(Part 3 of LPI’s “Back to Basics” Legal Procedures Series)
In the last segment of the “Back to Basics” series, we discussed how the civil litigation process begins, i.e., the plaintiff files an action (complaint or petition) in the court against a defendant/respondent, and the court issues a summons ordering that the defendant/respondent file a response or answer.
In this segment, we will explore the defense side of the process as well as service of process and proofs of service.
Before we do, it should be noted that in a civil case, the plaintiff generally has the burden of proof. This means that the plaintiff must prove the allegations they are making against the defendant. The burden of proof in civil cases is usually preponderance of the evidence. This refers to the weight of the evidence, not the amount. The plaintiff must convince the judge or jury that there is a greater than 50% chance that the claim is true.
While the burden of proof lies with the plaintiff, the defendant must defend themselves against the accusations brought against them. If they can’t do that, they risk losing the case.
After being served with the summons and complaint, the defendant must respond within 30 days of being served. While there are several ways a defendant may respond to a complaint, we will be focusing on (1) answer, (2) general denial, and (3) demurrer.
An answer to a complaint is the defendant’s formal written reply to the complaint. The answer may be a typed pleading that responds to each paragraph of the complaint. The answer to a verified complaint must also be verified, meaning that a signed statement verifying the contents of the pleading must be attached to the answer.
Following each responsive paragraph will be an affirmative defense (new allegations of fact constituting defenses which would prevent the Plaintiff from obtaining the relief sought). And just as the complaint contains a “prayer” asking the court for certain things, so does the answer. Usually, the prayer in an answer will state something along the lines of “WHEREFORE, these answering Defendants pray that Plaintiffs take nothing by reason of the complaint on file herein and that these answering Defendants be awarded costs of suit and such other and further relief as may be appropriate.”
This is a form response (Judicial Council Form PLD-050) that MUST be used in an action where the demand does not exceed $1,000. It MAY also be used if the complaint is not verified, OR the complaint is verified but the amount in demand does not exceed $25,000 (limited civil case).
In the General Denial, the defendant states that he/she generally denies each and every allegation of plaintiff’s complaint, then states facts as separate affirmative defenses.
A demurrer is a pleading response to a complaint where the defendant objects to the complaint on one or more of the following grounds: 1) the court has no jurisdiction; 2) the person filing the complaint has no legal capacity to sue; 3) there is another action pending on the same causes of action by the same parties; 4) the complaint is defective or there is a misjoinder of parties; 5) the complaint does not state facts sufficient to constitute a cause of action; 6) the complaint is uncertain, ambiguous, and unintelligible. (There are separate grounds for contract matters.)
A demurrer is treated as a motion to be heard before the court and therefore requires a hearing date. The demurrer “package” typically includes:
- Notice of Hearing
- Memorandum of Points and Authorities
- Declarations, Exhibits, Appendices
- Proposed Order
- Proof(s) of Service
- Filing Fees
Before filing a demurrer, the demurring party must “meet and confer” with the plaintiff or plaintiff’s attorney at least five (5) days before the demurrer is due to be filed with the court.
Service of Process
As a general rule, anything that gets filed with the court must also be served on all parties. The reverse, however, is not always true. For example, discovery documents do not get filed with the court, but they must be served on all parties in an action. In order for service to be effective and valid, the person performing the serve must be 18 years of age or older and not a party to the action.
There are specific requirements when it comes to the service of process for most court documents. Personal service is generally required when serving a summons and complaint, subpoenas, unlawful detainer actions, and family law actions.
Sometimes a registered process server will be used, sometimes electronic service, and other times service will be by mail or other means. Some firms have their own in-house office services personnel who double as couriers and process servers for personal/hand-delivery. Each of these types of service affects calendaring and response times in different ways. For example, discovery documents received by your office via U.S. Mail will have five days added to the response date; whereas the same discovery documents served by hand-delivery will not add any time to the response date.
Proofs of Service
Proofs of service must be completed for any document that is filed with the court and/or served on the parties in a case. The Proof of Service can be a Judicial Council form, or a pleading generated by your office. This document is signed under penalty of perjury attesting to the truth of the information, the method of service used, and the date and place where service was performed.
Pursuant to California Code of Civil Procedure section 1013(d), an UNSIGNED copy of the Proof of Service is served with the copy of the document being served. Once the document has been served, the original Proof of Service can be signed. Documents being filed with the court must be accompanied by a signed Proof of Service; therefore, complete the service first, then sign the Proof of Service, attach it to the document, and file it with the court.
It is important to remember that the date on the Proof of Service is the operative date when calculating deadlines for calendaring. If the document being served is signed on January 12, 2023, but the Proof of Service is dated January 13, 2023, then the date on the Proof of Service should be used for docketing purposes.
Part 4 of the “Back to Basics” series will cover Discovery and Depositions – – stay tuned!
(For more in-depth procedural information, we suggest LPI’s multi-week courses or the Law Office Procedures Manual.)
Categorized in: Legal Procedure
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