Civil Litigation I
Sample Class Notes for Week 6: November 7
Pleadings: complaint, answer, cross-complaint, demurrer
(Complaint discussed last week)
Answers
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The most common response to a Complaint
Can be very generic
o Although meant to flesh out issues in the case, no longer law in CA to be very specific
Must be served within 30 days in CA, 20 days in Fed Court
o If short on time, can ask P for additional 15 days
 Don’t need court order
 Get in writing
o After the 15 days, only court can grant permission for extension
 Make request before your time is up
If served with verified complaint in CA, you must verify your answer
Mailed to P
Filed with Court with filing fee
Contents of Answers
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Caption page
General denial (unless verified complaint)
Affirmative defenses
o Must be mentioned so they are not waived
o Examples:
 laches: P waited too long
 unclean hands: P was just as much at fault as D
 statute of limitations
 estoppel
 failure to exhaust administrative remedies
 set-off
 comparative negligence
 assumption of risk
Prayer
Signature of attorney
Cross-Complaints
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Pleadings that allow D to sue someone else in same suit after being served with Complaint
Same format rules and content as Complaint
Treated as independent action (if complaint drops out, cross-complaint remains)
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Service by mail for existing parties; complaint process (personal service) for new parties
Timing Considerations
o Must file suit against P within complaint response time (the 30 days)
o Must file against new parties any time before court sets trial date (unless have court
permission)
3 types
o from defendant against P
 can be compulsory or permissive
 compulsory if related to same subject matter
o from D against a co-D
 permissive only
o from D against 3rd party
 permissive only
Demurrers
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Can be filed in response to Complaints and Cross-Complaints
Same time to respond as if filing answer
Based on law, not facts; tests the legal sufficiency of the Complaint/Cross-Complaint
o Examples: SOL has run out, wrong person was sued, an element of a CofA was not pled
Motion rules apply
Mailed to opponent, filed with Court
Same formatting requirements
Attacking the Pleading can be done through Demurrer (above), Motion to Strike, Motion for Judgment
on the Pleadings
Motion to Strike
 Used to attack entire pleading or parts of the pleading
 Used to attack complaint, answer, cross-complaint, or demurrer
 Used to attack pleadings on grounds demurrer cannot reach
 Judged only on the face of the pleadings
 Examples of use:
o If pleading is abusive or obviously false on its face
o If matter is false or improper
o If pleading does not conform to proper format
 Same time limitation (the 30 days)
 If successful:
o Court will strike the parts of pleading you complained about
 If denied:
o Judge will allow some time for you to file an answer
Motion for Judgment on the Pleadings
 Same as Demurrer, but used after time has lapsed for D to file Demurrer
 Same rules as for Demurrers
 Court only looks at face of challenged pleading
 Often based on lack of jurisdiction
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Same motion/format procedures
Amended Pleadings
 Each party has a right to amend its pleadings once, without Court permission, for a short
amount of time after the initial pleading
o Complaints and Cross-Complaints: before opponent’s response is filed
o Answers: once within 10 days after your answer was filed
 If opp has answered, can no longer amend without Court’s permission
 May add: C of A, parties, facts, etc.
When Leave of Court is required:
 Liberally granted if within reasonable time
o To bring in Does
o To bring in new parties
o To delete existing parties
o To correct scriveners’ errors (clerical errors or typos)
 Done by Motion or ex parte application
o Ex parte
 Emergency
 Contact other side by 10 am the day before you file
 Court will look at prejudice/fairness
Supplemental Pleadings
 A pleading that alleges facts that occurred after the filing of the original pleading
 Does not replace/supersede original pleading, only adds to it
 Done through noticed Motion procedures
 Leave liberally given
 Used almost always for complaint, cross-complaint
 Can allege further bad acts; cannot allege new C of As or new defenses