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The First Steps After Being Sued

Once you have been formally served with a lawsuit, you must file a written response with the Court. Most commonly, you have a mere thirty calendar days to file your written response. See CCP § 420.12. You have less time in an eviction. The clock does not start ticking the moment the lawsuit -- or Summons and Complaint -- is placed in your hand unless it was personally served. If you received it in the mail or from the front secretary of your office, the clock starts ticking on the date service was complete.

If you fail to file your response in time, the other party may prevail against you and receive what is known as a "default judgment." Like all orders, defaults are enforced rigidly. It is a serious misstep to assume that because you feel like "they have no case," that a default will not be entered. Although default judgments require many steps and details, they are not particularly difficult to obtain because there is no opposition. The defaulting party will then be bound by the Court's order and responsible for paying that which the Court has awarded. Even if you feel like you are judgment-proof, judgments are valid for 10 years and thereafter renewable.

In order to avoid the perils associated with defaulting, you should file a proper, timely response. Not just any type of response will do, and the Courts have basic guidelines concerning the form your response must take. While basic rules may be found on the court's website, one must also look to he Civil Code, Civil Code of Procedure, Evidence Code, State Court and Local Court Rules. Some courtrooms also have specific rules. These codes to not even touch upon the specific causes of action that you may be facing.

Legal proceedings turn on the facts unique to the case before the presiding court. Accordingly, the unique facts surrounding your case should dictate the manner in which you choose to respond to the allegations being leveled against you. This article examines three of the most common responses: the Answer, the Motion to Strike, and the Demurrer. Unique circumstances and allegations require that you provide uniquely tailored responses.

Answering the Pleadings

An "Answer" is specific type of court filing. The Answer is the Defendant's opportunity to challenge and controvert the Plaintiff's allegations in the Complaint. It serves the purpose of filtering out matters that are either immaterial or simply not at issue.

Unless a general denial is permitted, the Defendant must admit, deny, or claim he lacks information or belief sufficient to answer for each specific allegation made by the Plaintiff. The Defendant must address each allegation the Plaintiff set out in the Complaint (referencing them by number). In addition to admissions and denials, the Answer should also contain any affirmative defenses the Defendant wishes to assert. An "affirmative defense,"is a defense that admits the wrongdoing that you are blamed for, but states some other reason that you are not liable. For example, in breach of contract dispute you may admit that there was a contract and that you were supposed to pay $500, but the reason you didn't pay the $500 was because the other party failed to deliver on his promise.

Motion to Strike

Motions to strike can be used to attack a pleading in its entirety, or can be used to attack specific parts of the pleading. The grounds for the motion to strike are to strike any "irrelevant, false or improper matter inserted in any pleading" or to strike any pleading in whole or in part "not drawn or filed in conformity with the laws of this state, a court rule or order of court." CCP § 436. As long as it is filed in a timely fashion, a motion to strike constitutes a general appearance and prevents the entry of a default judgment. This means that the Defendant may wait to file an answer while the motion to strike is pending.

Attacking the Pleadings with a Demurrer

Essentially, a demurrer is used when the pleadings you have been are so defective that you cannot determine whether you can admit, deny, or defend against the claims they are making. Most often, pleading defects that are met with a demurrer can be cured by simply permitting the other party to take leave to amend. Many judges are suspect of demurrers, perceiving demurrers as unnecessary actions causing needless delay and increased litigation costs. New laws in 2016 require defendants to speak to the plaintiff about curing the defects prior to filing a demurrer.

Despite judicial attitudes that are often unsympathetic to demurrers, demurrers can be used advantageously in many cases. Some include cases where a novel cause of action has been alleged, where the opposing party shows an inability to truthfully amend, where summary judgment is contemplated, and where there is a clear statute of limitations defense. The demurrer acts as a test of the legal sufficiency of other pleadings, raising issues of law (not fact) with the substance or form of the pleading it is attacking.

If you fail to respond properly, you may miss an opportunity to defend against your lawsuit early in the case. This often means a more expensive legal mess down the road.

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