Powerful Advocacy

Understanding Litigation Basics

Step 1 to Filing a Lawsuit

Step 1 to Filing a Lawsuit

When a person is harmed, often the only sensible means by which he or she can be made whole is to initiate legal proceedings against the wrongdoer. Under most circumstances, legal proceedings begin once official documents are filed with the Court. There are also many forms of alternative dispute resolution ("ADR") such as mediation or arbitration. ADR is a great tool and should be used when possible, but some defendants will not take a party seriously until a lawsuit has been filed.

The first document that must be filed is known as the complaint. The injured party becomes known as the plaintiff. The complaint sets out the injured party's assertions, names liable parties as defendants, and lays out the factual and legal bases for the plaintiff's claim. Drafting the complaint must be done carefully, as it sets the tone for the legal proceedings to come and is often the sole means by which the court determines whether there is any merit to the plaintiff's case. In California courts, we have what is known as "fact pleading." Fact pleading, in contrast to notice pleading in federal courts, requires that you allege specific facts for each element of every cause of action in your complaint. That means that in a complaint alleging negligence, you cannot merely state "Person X was driving the car that hit my car and caused me to incur medical bills." You must clearly allege facts concerning the other driver's duty, the breach of that duty, how that breach was the cause in fact and the proximate cause of your injuries, and the manner in which those injuries caused you to sustain damages. Failure to comply with these requirements can get your case tossed out before you ever have an opportunity to present evidence on the merits.

In addition to filing the complaint, California courts require the Plaintiff to file a Summons and Civil Claim Coversheet. Both forms can typically be found on your county Court's website. These additional forms are incredibly important, because without all three forms being filed, the party you are opposing is not required to file a response (or, in other words, "Answer").

The Civil Claim Coversheet is a form that the courts use to classify your complaint and as a source of statistical data. It is a "check the box" form, and can be completed quickly and often without the need of assistance.

The Summons acts as an official notice to the parties you have named as defendants that they are being sued. Again, it is imperative that you know the court rules concerning providing notice to parties you are suing. While the Summons acts as an official notice, some types of suits require providing the parties you are suing additional time prior to filing the complaint. For example, in suits against "health care providers," the California Code of Civil Procedure may require you serve notice to the parties you are opposing a full 90 days before filing the complaint. Be sure you understand these rules before filing because there are consequences (known as "sanctions") that you may face for failing to provide proper notice, among other things. These other requirements may also affect when your statute of limitations expires.

Some plaintiffs may even be able to avoid the foregoing obstacles by bringing their claims through specially designated procedures. For example, it is very easy for an unpaid employee to file a claim with the Labor Commissioner and avoid the costs and requirements of an action in Superior Court. However, while bringing a claim with the Labor Commissioner may be easier in some actions, an aggrieved employee may also fail to identify all relevant causes of action. An employee who fails to consult an attorney may miss the opportunity to collect unpaid breaks and statutory penalties, for example.

The bottom line is that it's not always easy to get one's case before the court. Before starting a battle without an attorney, seek consultations and do due diligence to be sure you're in the proper court and following the proper procedures. If you think you have a claim, do not delay and beware of any pending statutes of limitation.

Step 1 to Defending a Lawsuit

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.

Types of Litigation Cases



Fraud is the cause of action used when a party as, essentially, been lied to. When it was intentionally or negligent, fraud requires that one party make a material misrepresentation to another party. "Material" means that the misrepresentation was really important. Each circumstance must be evaluated independently to determine whether the misrepresentation was material.

The next requirement is that the injured party relied on that misrepresentation to his or her detriment. For example, if a store sells you a box of red wine but told you it was white; and you only bought it because they told you it was white, then you relied to your detriment. In contrast, if you were buying the wine regardless of the varietal, then the misrepresentation was irrelevant.

Common examples of fraud involve deceit among businesses, or a bank's promise not to foreclose.

Inheritance Disputes

Estate Litigation

Litigation involving wills, trusts, probate and conservatorships is specific area of law. The same general civil litigation principles are applied, but the Court exacts more influence than a typical business-like matter.

Trust litigation can arise at any time, regardless of whether the Trustor is still alive. Often, one trustee wants to remove the power from another trustee because of disagreements as to the administration.

Will and probate litigation, however, only arise as to estate assets of a decedent. When an individual does not properly plan their estate -- or even sometimes when they do -- family members and creditors often fight over the property left behind.

Unpaid Overtime

Employment Disputes

Employers and employees alike need to realize and understand their rights and responsibilities. California labor laws are principally codified by the California Labor Code and Business and Professions Code among numerous other bodies of law often varying by industry and profession. Some of these rights and responsibilities may be contractually amended while others may not. For example, employer-employee contracts are the principal way in which employers and employees can clearly articulate their expectations from one another. However, just because it is in a contract does not mean the court will enforce it. Whether you are an employer questioning your current employment practices, or an employee questioning whether your employer's practices are legal, Contact Us to help you review your employment law needs.

Unpaid Overtime & Breaks

California law requires that employers provide employees with certain minimum breaks and wages unless the employee meets certain specified exemptions. These minimum requirements include overtime compensation for time worked over 8 hours in a single day or 40 hours in a work week. An employe must also provide 10 minute work breaks and a meal period within that 8 hour day. It is against the law (California Labor Code § 203) for an employer to ask you to work during your breaks. But, a recent ruling decided that employers are not obligated to force work breaks! Contact us to determine whether you have a legal claim for unpaid wages and penalties or if you are an employer in need of defense.

Unemployment Insurance Appeals

If you have been denied unemployment, you are entitled to an appeal. Often times, employers wrongfully deny an employee's unemployment out of anger or mere ignorance of the legal standards. Employees are frequently intimidated by their employers, angry, and flustered at the idea of facing them in a hearing. For a flat fee, attorneys at T.Burd Law Group can help you write your unemployment insurance appeal letter and prepare you for your hearing. Don't risk losing the unemployment benefits that you have earned and deserve.

Personal Injury

Personal Injury

Personal injury cases are legal disputes that arise when one person suffers harm from an accident or injury, and someone else might be legally responsible for that harm. Often, individuals and businesses have insurance policies precisely to handle these types of claims resulting from an accident. In order for the injured party to recover damages, they must bring a formal claim. Failing to take your injury seriously could jeopardize your ability to recover.



Defamation can be either written -- known as libel -- or spoken -- known as slander. It requires that the speaker make a false statement as though it is fact. This means that no matter how awful someone's words are, it is not defamation if the words are true. Also, no matter how awful someone's opinion is, it is probably not defamation if the statements sound like an opinion.

Some statements are defamatory on their face. For example, untrue statements made about someone's sexuality or related to their business can be defamatory even if damages cannot be proved.

501 West Broadway, Suite 600, San Diego, CA 92101