CIVIL LITIGATION:

– General Lawsuit

A civil case is a private dispute between two or more parties. The following is an outline of the steps one may take if a civil action is filed in a California superior court.

The plaintiff has his or her attorney prepare a document called a complaint. The complaint states what the dispute is about, why the defendant is responsible, and asks the court to take a stated action, such as awarding damages. The complaint, along with a summons, is delivered to the party the action has been filed against. A summons is a written order stating that a defendant must answer the plaintiff’s complaint. There are requirements for serving a summons. The party served is the defendant. The defendant has a specific period of time to respond to the complaint. This written response is an answer. The answer admits or denies allegations in the complaint, states any defenses to the plaintiff’s complaint, and asks the court to decide in favor of the defendant. The defendant also may state claims he or she has against the plaintiff. Any claim by the defendant against the plaintiff is a cross-complaint. The plaintiff must respond to the defendant’s cross-complaint. If the defendant does not respond to the complaint, the plaintiff can win the case by default. The complaint, answer, and any cross-complaints are called the pleadings. If it appears that based on all the information presented, one side clearly has the advantage, that side often will file a motion for summary judgment, which requests that the judge rule in favor of the moving party if the judge decides that there is no triable issue of fact. At this same time one party may file a motion to dismiss the case. There are a number of grounds on which a party may move to dismiss a case. For example, a party may claim the court does not have jurisdiction, or that the action was brought too late under the statute of limitations. Statutes of limitation vary in length depending on the type of case.

There are several more steps that may be taken by the parties or the court before a case goes to trial. To assist the parties in preparing their cases and learning about the other side’s case, a process called discovery occurs. During discovery, each side may ask the other to answer written questions (interrogatories), provide copies of documents, or answer questions orally under oath (deposition). A deposition usually is held in an attorney’s office and recorded by a stenographer. A deposition can be used to impeach a witness during the trial if testimony at trial is different from the testimony given at the deposition. Each side also may make motions to the court asking it to settle legal questions that arise. Most civil cases filed in California state courts are settled without ever going to trial. Instead of facing a trial many civil litigants and their attorneys consider the possibility of settling a lawsuit through a process known as alternative dispute resolution (ADR). If a settlement is not arranged during the pretrial process, the parties proceed to trial.

– Contract Disputes

Written Contracts: A written contract is usually pleaded by setting it out in its entirety in the body of the complaint or by attaching a copy. The other method of pleading is by alleging the making of the contract, and then alleging the substance of its relevant terms. “A written instrument is presumptive evidence of a consideration.” (C.C.1614.) Therefore, it is not necessary to plead the existence of consideration to support the contract.

Oral Contracts: If oral, the exact words used can seldom be correctly alleged, and are evidentiary in nature. Hence, the oral contract is pleaded according to its legal effect. But the complaint is subject to a general demurrer if the allegations fail to show the nature of the contract with certainty.

Implied Contract: An implied in fact contract arises from conduct, without express words of agreement. Accordingly, “only the facts from which the promise is implied must be alleged.”

– Collection of Money

In California many attorneys are under the impression that it is not possible to file a General Demurrer to Common Counts. This is not always true as there are exceptions. In particular, there are many cases in which Plaintiff has included a Breach of Contract or other cause of action along with several Common Counts.

There are several Common Count causes of action including:

  1. Money
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    had and received.

  2. Money lent or paid.
  3. Services and material.
  4. Goods sold and delivered.
  5. Quantum meruit.
  6. Open book account.
  7. Account stated.

It is true that common counts are not subject to a general demurrerAuckland v. Conlin (1928) 203 Cal. 776, 777, but they are subject to the rule that “if plaintiff is not entitled to recover under one count in a complaint wherein all the facts upon which his demand is based are specifically pleaded, it is proper to sustain a demurrer to a common count set forth in the complaint, the recovery under which is obviously based on the set of facts specifically pleaded in the other count.”Hays v. Temple (1937) 23 Cal.App.2d 690, 695; Lambert v. Southern Counties Gas Co. (1959) 52 Cal.2d 347, 353; Orloff v. Metropolitan Trust Co. (1941) 17 Cal.2d 484, 489.

– Negligent Misrepresentation

A claim for negligent misrepresentation is generally the same as a claim for intentional misrepresentation, except the

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victim must only prove the defendant did not have “a reasonable basis” to believe its statement of fact was true (as opposed to proving the defendant knew its statement was false). If the defendant’s false statement was both honestly made and based upon reasonable grounds, however, there is no claim. Punitive damages are not available for negligent misrepresentations.

– Intentional Misrepresentation

        1. An intentionally or recklessly false statement of fact. Not every false statement is a false statement of “fact.” Statements of opinion generally are not actionable. Sales talk, or “puffing” (“This is the best location in the county!”), is generally not actionable. However, if the defendant claims to be an expert or there are other reasons to expect that the victim would rely upon the defendant’s opinion as a statement of “fact,” an opinion may be treated by the court as a statement of fact.
        2. Intention to defraud. If a representation of fact was intentionally false and a material part of the transaction.
        3. Reasonable reliance upon the false statement. The victim must have actually relied upon the statement to change his or her position.
        4. Resulting in damages. There must be measurable damages that were caused by the fraud. It is not enough that the victim was told a lie.

– Defamation

Generally, defamation is a false and unprivileged statement of fact that is harmful to someone’s reputation, and published “with fault,” meaning as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation.

The elements that must be proved to establish defamation are:

  1. a publication to one other than the person defamed;
  2. a false statement of fact;
  3. that is understood as
  4. being of and concerning the plaintiff; and
  5. tending to harm the reputation of plaintiff.
  6. If the plaintiff is a public figure, he or she must also prove actual malice.

– Civil Appeals

The first procedural step is to file the notice of appeal. This is filed in the trial court — and it must be done within a specified time. If a party is late, the Court of Appeal will have no jurisdiction and the matter will never be heard. The importance of a timely filing cannot be overstated — although there is some degree of flexibility with respect to deadlines going forward, there is no flexibility whatsoever in the initial deadline to start the appeal.

Determining the deadline for filing the notice of appeal can be tricky. There are various possible deadlines depending on how the judgment being appealed was noticed to the parties and also on whether post-trial motions were filed.

Rule 8.104 of the California Rules of Court defines what it terms the “normal” deadline in state court as the earliest of: (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, showing the date either was mailed; (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or (3) 180 days after entry of judgment.

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