Initiating the Lawsuit and Service
The plaintiff is the individual who files paperwork with the local court to initiate a lawsuit. Once the court processes the paperwork, the plaintiff needs to serve a copy of the paperwork on the defendant. The paperwork includes the complaint, civil case cover sheet, summons, and case management information. The complaint must be served on all defendants within sixty (60) days after the filing of the complaint. California Rules of Court, Rule 3.110(b).
Time to Respond and Default Judgment
After the defendant is served with the paperwork, the next step for the defendant is to respond. The defendant generally has thirty (30) calendar days to file a response. C.C.P. §412.20. If the defendant fails to respond, the plaintiff may file a request for entry of default within ten (10) days after the time for service has elapsed. California Rules of Court, Rule 3.110(g).
When a default is entered, the plaintiff must obtain a default judgment against the defendant within forty-five (45) days after the default was entered. California Rules of Court, Rule 3.110(h). A default judgment means the defendant loses the case and the plaintiff may enforce their award. For example, plaintiff files a lawsuit for breach of contract claiming damages of $10,000.00. If defendant fails to respond, the court will agree with the plaintiff and award them $10,000.00. The plaintiff may then enforce the judgment by levying bank accounts, garnishing wages, or placing liens on real property. Hence, it's important to timely respond to a lawsuit.
How to Respond to Lawsuit
Responding to a lawsuit is specific to each individual lawsuit. An attorney will review all of the paperwork and ask a series of questions, including, for example:
Depending on the answers to those questions and the complaint, the defendant may consider responding to the lawsuit by filing a motion to quash, a demurrer or an answer. A demurrer is a response that does not dispute the truth of the allegations, but claims its not sufficient grounds to justify the legal action. Merriam-Webster. Recently, new rules were approved that outline the process for filing a demurrer. The rules have created a long-winded process that includes required meet-and-confer telephone discussions on the merits of the demurrer. As a result, a demurrer can be a costly process. The typical response is to file an answer.
- Was the lawsuit filed in the correct court?
- Was service of the court paperwork correct?
- Is the complaint clearly stated or does the complaint make sense?
- Do the facts alleged in the complaint meet certain standards and requirements?
- Is the complaint verified?
Depending on the answers to those questions and the complaint, the defendant may consider responding to the lawsuit by filing a motion to quash, a demurrer or an answer. A demurrer is a response that does not dispute the truth of the allegations, but claims its not sufficient grounds to justify the legal action. Merriam-Webster. Recently, new rules were approved that outline the process for filing a demurrer. The rules have created a long-winded process that includes required meet-and-confer telephone discussions on the merits of the demurrer. As a result, a demurrer can be a costly process. The typical response is to file an answer.
The answer admits or denies the individual allegations in the complaint. If the complaint is not verified, the defendant can file a general denial. If the complaint is verified, the defendant must individually deny or admit each factual paragraph. It's important to carefully review the complaint and deny each allegation that is wrong. The answer is the first opportunity to defend against the allegations outlined in the complaint. The defendant may raise what's termed "Affirmative Defenses." All available affirmative defenses should be raised in the answer and supported by facts. Failure to raise the right defense in the answer may prevent it from being used as a defendant later on in the lawsuit.
Below are a few shortened examples to provide a general idea of affirmative defenses. They are not intended to by copied into an answer because the affirmative defenses below do not include facts and may not apply to the specific complaint.
Below are a few shortened examples to provide a general idea of affirmative defenses. They are not intended to by copied into an answer because the affirmative defenses below do not include facts and may not apply to the specific complaint.
Example Affirmative Defenses
Affirmative Defense: Bad Faith
- As a separate and affirmative defense to the allegations of the complaint, Plaintiff is barred from pursuing claims against Defendants due to their bad faith, including, but not limited to, the breach of the duty of good faith and fair dealing.
Affirmative Defense: Failure to State a Claim
- As a separate and affirmative defense to the allegations of the Complaint, Defendants allege that Plaintiffs and each cause of action alleged therein fail to state facts sufficient to state a cause of action against Defendants.
Affirmative Defense: License, Consent, Acquiescence, Waiver, and Estoppel
- As a separate and affirmative defense to the allegations of the complaint, Defendants are informed and believe and thereon allege that Plaintiff’s claims are barred by license, consent, acquiescence, waiver, and estoppel.
Affirmative Defense: Statute of Limitations
- As a separate and affirmative defense to the allegations of the complaint, Defendants are informed and believe and thereon allege that Plaintiff’s claims are barred by the applicable statute of limitations.
Affirmative Defense: Lack of Standing
- As a separate and affirmative defense to the allegations of the Complaint, Plaintiffs are barred from pursuing claims against Defendants because Plaintiffs lack standing to assert each and every cause of action contained herein.
Affirmative Defense: Arbitration
- As a separate and affirmative defense to the allegations of the complaint, Plaintiffs’ executed an enforceable agreement to arbitrate all claims against the Defendants, and Defendants are entitled to resolve all claims raised by Plaintiff’s complaint through arbitration. Plaintiffs are barred and this Court lacks jurisdiction because Plaintiffs failed to pursue arbitration, as required by the binding arbitration clause.
General Denial
A general deny may only be used in certain circumstances briefly discussed above. A general denial might read as follow:
Pursuant to section 431.30(d) of the California Code of Civil Procedure, Defendants generally deny each and every allegation in each cause of action alleged against Defendants as set forth in the unverified complaint. Defendants further deny that Plaintiffs have sustained any damages whatsoever as a result of the actions complained of, and deny Plaintiffs are entitled to any relief sought by reason of any act, omission or conduct on the part of Defendants.
Never Received Service of the Lawsuit
There are situations when the plaintiff obtains a default judgment against a defendant, but the defendant never received the lawsuit and had no idea a lawsuit was even filed. In these situations, there is an argument that the default judgment should be "set aside" because service was not proper. The defendant must file a motion with the court to set aside the judgment. The motion is asking the court to void the judgment so the defendant can have his day in court. If the court agrees, the defendant will have an opportunity to file his or her response to the lawsuit.
Contact Sacramento's Litigation Lawyers
Responding to a lawsuit is the first opportunity to outline a defense. The response should be drafted with time and care. There is considerable time spent on reviewing the language of the complaint and researching the law to ensure all defenses are correctly stated. Please feel free to contact Sacramento's business litigation lawyers if you would like assistance on responding to a lawsuit.
Call Us: (916) 669-8400
*The information provided in this post does not constitute legal advice or opinion. The information is for guidance purposes only. Individual situations vary and you should contact an attorney for legal advice. Rooted Legal PC includes attorneys who are well-versed in civil litigation matters and are located in Sacramento. Business Law Attorneys Responding to a Lawsuit.
Sacramento Business Resources
Sacramento County Public Law Library located at 609 9th Street, Sacramento, CA 95814, is a great free resource for researching the law.
Superior Court of California, County of Sacramento is located at 720 Ninth Street, Sacramento, CA 95814, is the court for Sacramento County.
California Courts is the California Judicial Branch that includes court forms and free helpful advice.
Superior Court of California, County of Sacramento is located at 720 Ninth Street, Sacramento, CA 95814, is the court for Sacramento County.
California Courts is the California Judicial Branch that includes court forms and free helpful advice.