The calls usually go something like this.
“I just found out that there is a judgment against me. They were claiming I owed them $25,000 for an unpaid credit card, but this judgment is for $87,252!”, the caller exclaims.
“Were you ever served with the complaint?”, I ask.
“Well, not really. They came to my house back in April and tried to serve it on my wife, but she wouldn’t take the papers. We found the papers on the doorstep the next day. I looked at the papers and they said we didn’t have to be in court until September. But it’s only June, and they already have a judgment against me. What can I do.?”
The answer to the question is, the caller is going to have to bring a motion to vacate, but let’s look at how he got himself into this mess.
When you are served with a complaint, YOU MUST ANSWER. If you don’t, the plaintiff will take a default judgment against you. (There are other motions that can be brought before you answer, but the point is you must respond.) Unfortunately, many people immediately go into a deep state of denial when they are served, and never deal with the situation. Also, they are so intimidated by the legal documents and all the legalese, they their eyes glaze over and they don’t carefully read the documents.
There are two primary documents when you are served. The summons and the complaint. The summons is the formal document that legally compels you to court. The complaint is the document that sets forth the basis of the plaintiff’s claim(s). The summons will very clearly state what you must do, and how long you have to do it. However, there is often another document in the package that has a date stamped on it. That document is the Notice of Case Management Conference (“CMC”). A CMC is not a hearing; it is just a status conference used to make certain the case is moving forward. Inexplicably, many, many defendants see only that date, and think they will just go to court on that day and talk to the judge. They take no further action, and the plaintiff is then free to take their default long before the CMC. That was the mistake our hypothetical defendant made in the example above.
And speaking of the hypothetical, why was the judgment so much higher than the amount owed? Because without you there to defend yourself, the plaintiff can claim anything. A client once came to us with a default judgment against him in the amount of 1.5 million dollars. The actual amount owed in dispute? $35,000. Judges are supposed to exercise their independent judgment even on a default cases, but many don’t. In this case, the plaintiff claimed that he would have invested the $35,000 in another project that would have yielded the $1,500,000. It was a ridiculous judgment and we successfully had it vacated, but it shows what can happen when you don’t answer the complaint.
Here is a simple video explaining what I just told you, in case you prefer to watch rather than to read. Incidentally, a website is provided at the end of the video that will take you to Legal Aid services if you can’t afford an attorney.
So, you must file an answer. What is an answer and where do you get it? Here is the link to California’s Judicial Council Forms. You should find what you need there. These forms can be used in any California court. On the drop down list select “civil” and then look for the answer form. Be very careful that you are using the right form (but even filing the wrong form is probably better than filing nothing). As I explain in more detail below, using one of these check the box forms can be risky, but it’s certainly better than a default judgment.
Of course, it should go without saying that none of this can be taken as legal advice, nor should you base any decision on anything I have said. For actual legal advice I would need to be retained in order to take the time to review your situation and any supporting documentation in detail. So, keeping in mind that none of this is legal advice, here is some additional information you may find useful.
I was served with a summons and complaint, and the summons says that I need to file an answer within 30 days. What does an answer look like? Is it something I can just pick up at the courthouse?
You can get a form answer (called a General Denial) at the Court, fill it out and file it, but that’s usually not a good idea.
Here’s how pleading works. The plaintiff is supposed to serve and file a complaint that sets forth sufficient facts so that you know what you are being sued for. The complaint sets the parameters for the action. If the complaint says you owe plaintiff money because you borrowed money and didn’t pay it back, he can’t spring on you at trial that you also stole money from him. The plaintiff is bound by the complaint.
And so it is with the answer. You must set forth the defenses you will rely on in defending against the complaint. If it’s not in your answer, you may be barred from using that defense at trial. Wouldn’t it be ashamed if you ended up paying money you did not owe, just because you left some magic words out of your answer? Remember, “the man who represents himself has a fool for a client.”
I know that I am required to answer the complaint. Can I just send a letter to the judge explaining what happened?
An answer is a specific type of document, and a letter does not qualify. A judge is not permitted to read any letter that you send, because that would be what is called an ex parte communication. A judge is never supposed to talk to one side without the other side being present. A possible exception is Small Claims Court. Since that is designed to be layperson friendly, a judge will read the letter to see if you are asking for an extension.
I just got served with a complaint. I know I need to answer, but is there anything special I need to know or do?
Fortunately, the Superior Courts as now governed by a set of uniform rules. At one time, every courthouse had its own rules, as did each judge within the courthouse. It could be a nightmare trying to figure out the rules. Now there is a set of rules that apply to every court, and no jurisdiction is supposed to deviate from those rules without obtaining a waiver from the State. Courts and judges can, however, create their own rules so long as they don’t conflict with one of the standard rules. And some judges just ignore the law and make their own rules anyway, so you still need to ask questions. Even if the judge doesn’t have his or her own rules, he or she will have a way they like to handle things. Stop by the courtroom at some point when court is not in session, and ask the court clerk if the judge has any printed procedures.
The very first thing you should do upon receiving a complaint is to retain the services of Morris & Stone, of course. But if you are going it alone, the very first thing you must do is to determine which judge is assigned to the case. In the old days, you were not assigned a specific judge, and the courts would have some judges that listened to motions, others that considered preliminary injunctions, etc. Every time you went to court, you ended up with a different judge who knew nothing about your case from all the prior visits. It was a phenomenally bad system that only the government could come up with. Now you are assigned to a single judge. The name is randomly chosen. Every unrepresented defendant that has ever gone to court is absolutely convinced that the other side some how managed to get his friend the judge assigned to the case, but it doesn’t happen.
So, look at the complaint and see which judge is assigned to the case. If you got one that is not so great, you can file a simple form that rejects that judge (called “papering the judge”). You only have ten days to file the form. You can do so only once, so you always run the risk that you will just be assigned to another not so great judge. Unless the judge has a really bad reputation, it is best not to waste your one challenge. If your case ever goes to trial, the odds are that you will not be in front of the judge that has had your case from the beginning. The courts intentionally overbook the trial dates, because so many cases settle on the eve of trial (trial is a real motivator). When your case is assigned a trial date, there will typically be six or more other cases assigned to the same judge on the same day. Of those seven cases, four will be settled or continued. That leaves three cases ready to go to trial. The court clerk will call Master Calendar and ask for a courtroom. You and the other parties will then wait in the hall, sometimes for days, waiting for a courtroom. When you are finally assigned to a new judge, if you haven’t used your challenge, you can still use it. “But I thought I only had ten days.” You do — that judge was just assigned.
When I received the summons and complaint, there was a form attached that said my trial date is in about four months. Can I just wait until then, show up and tell my side of the story?
That’s not the trial date. For some reason, when some people receive a summons and complaint, their eyes glaze over and they can’t or won’t read the papers to see what they are supposed to do. The summons clearly states that you must file and serve an answer within 30 days (it’s only FIVE days for some complaints, so read carefully). Inexplicably, that part never gets read. Instead, the defendant turns to what is called the notice of case management conference. That also explains that the defendant has only 30 days to answer, but the only thing the person sees is the date of the scheduled conference, which is generally set about four months after the action is filed. If you wait until that date, a judgment will have already been taken against you. And if you are not there to defend yourself, the case that involved only a few thousand dollars may have turned into a multi-million dollar judgment. See, for example, Oh What a Tangled Web We Weave.
What do I say in the answer? Is that where I tell my side of the story? Can I just use the “check-the-box” form I found on line?
Here is the way it is supposed to work. The plaintiff files a complaint which is supposed to contain enough facts so that the defendant can properly know of what he or she is being accused. If a complaint just said, “defendant injured me,” that would not be sufficient. The defendant would not know whether he is being accused of assaulting the plaintiff, or perhaps was involved in an auto accident with the plaintiff. The complaint needs more facts.
Similarly, an answer is supposed to contain sufficient facts so that the plaintiff will know the basis upon which the defendant is denying the allegations of the complaint. But for some reason no one does it that way. Most defendants will simply file what is called a “general denial,” claiming that all the allegations of the complaint are false. This is a legal fiction, because even the defendant will admit that some of the allegations are true, such as the county where he resides.
If a plaintiff really wants to force the defendant to file a more meaningful answer, he can file a verifiedcomplaint. With a verified complaint, the plaintiff states under penalty of perjury that all of the allegations are true. The defendant, under most circumstances, must then file a verified answer, either admitting or denying each of the allegations in the complaint. Generally it is considered a bad idea to file a verified complaint unless a particular cause of action requires it, because as you conduct discovery in a case, your understanding of the facts might change.
As to the check-the-box answer you can get from the court, utilizing that form can be a really bad idea. The answer must also contain any “affirmative defenses” upon which the defendant intends to rely. A general denial puts in dispute any allegations that are specifically refuted by that denial. In other words, if plaintiff alleges you owe him $100,000, your general denial will be sufficient to allege that you don’t owe him $100,000 (although some attorneys will argue that does not deny that you owe him $99,999). But any defense that goes beyond a direct denial requires an affirmative defense. This is sometimes called the “yes, but” test. In other words, if in response to an allegation in the complaint, your response is, “yes, that allegation is true, but . . .,” then a general denial does not properly refute that allegation.
There are many affirmative defenses that must be set forth in the answer or they are waived (although the court might give you permission to amend the answer to add a defense). In other words, you could go to trial and lose because you can’t rely on a defense that would have defeated the claim. One of the best examples of this is the statute of limitations. Take an oral contract. Under the statute of limitations, an action on an oral contract must be brought within two years of the breach. Defendant sues you three years after the breach, and you file an answer with no affirmative defense for the statute of limitations. If you had alleged that affirmative defense, you could have won the case by simply proving that the breach occurred more than two years before the complaint was filed. Without that defense, the judge will not permit you to rely on that defense (because you did not put plaintiff on notice that was your intention), and you will need to find some other reason that you are not responsible for the debt. You do have the option to amend your answer, but whether or not the court will permit you to amend your answer depends on the prejudice the other side will suffer. If you ask for permission to amend your answer one month after it was filed, your request will almost always be granted because there will therefore be little or no surprise to the plaintiff at trial. On the other hand, if you ask to amend the complaint after the plaintiff puts on his evidence at trial and you realize you failed to allege a crucial affirmative defense, that request will almost always be denied because you have sandbagged the plaintiff (but you should still ask).
I found a summons and complaint stuck under the windshield wiper of my car. I know that’s not proper service, so do I need to file an answer?
Playing the, “I wasn’t properly served” game is fraught with peril. If you receive a complaint, even if it was nailed to your door, never, ever ignore it.
There are a number of urban legends about service. Many people think it’s like a game of tag, and that service is ineffective unless the process server gets the defendant to take it in his or her hand. That’s a dangerous myth. It’s not even true that the process server has to personally serve you. By law, the process server is supposed to try to personally serve you. If he does find you, he is supposed to tell you the nature of the documents (so that you won’t think it’s someone trying to hand you religious literature) and then deliver them to you. “Deliver” does not mean he needs to hand the documents to you. So, the process server will walk up to you and say, “Mr. Rogers, this is a summons and complaint.” If you take the envelope from him, great; if not, he can drop it at your feet. He could even approach you in your car, make the statement, and stick it under your windshield wiper. So, yes, sticking it under your windshield wiper can be effective service.
If he makes three attempts to serve you, but can’t find you at home or work, he can substitute serve you by giving it to someone at your home 18 or older. He must then mail you a copy as well, to make sure you get it even if your no-good adult son that answered the door never gives it to you.
That process server will now prepare a proof of service, attesting to the fact that you were served. Thirty days later (40 days for substituted service), the opposing party will take a default against you, and then seek an unopposed judgment.
We’ve had to teach this lesson even to other attorneys. We once had a case where the attorney for a corporation had foolishly listed herself as the agent for service of process. She thought she had pulled a fast one because she ran her practice out of her home, and her home was in a guarded community. She thought she was somehow immune from service, and when we served the guard at her community, she sent a letter stating that was not effective service and that she would sue for abuse of process if we took the corporation’s default. Not only did we obtain the default judgment, an arrest warrant was issued against her for failing to appear at the judgment debtor’s exam. You see, she did not know there was an obscure rule about serving people in guarded communities that permits the party to serve the party by giving the complaint to the guard.
If you are improperly served, don’t ignore it. If it makes you feel better, go to court and fight the service. You’ll still be served, probably in the hallway as you leave, but you’ll have all that satisfaction that is gained from spending hours arguing the point. Judges in the Orange County Superior Court are more interested in whether there was constructive notice as opposed to worrying about the technical requirements of service. You or your attorney will look foolish when you stand in front of the judge and proclaim, “your honor, I was never properly served with the complaint that . . . I’m . . . um . . . holding . . . here in my hand.” It’s usually better and cheaper to just answer the complaint.
I’m being sued, but the entire case is just his word against mine. There’s no way he can win if he has no evidence, correct?
So what you’re saying is, no one should ever be able to sue unless there is some independent evidence to support the case? For instance, if a woman is sexually molested in an elevator, she just has to take it because it would just be her word against the attacker’s. Fortuneately, that is not how the law works.
If someone sues you and it is just your word against their’s, then at trial he or she will take the stand and testify, and you will take the stand and testify, and the judge will decide whom to believe. True, the plaintiff has the burden to prove the case, but the burden is to show that it is more probable than not that the facts occurred as the plaintiff claims (not “beyond a reasonable doubt” like you have in criminal cases). A case can often be determined from the circumstances. Someone gives you $1000 as a gift, and later claims that it was a loan, suing you to get it back. If the money came on your birthday, and there is a history of such generous gifts, then the court will probably find in your favor. If the money was delivered right when your car was about to be repossessed, and there is no history of the plaintiff ever being so generous in the past, then you will probably lose. See how it works? Simple common sense, even though it is just one person’s word against another’s.
I just got served with a complaint that the judge will be able to tell just from reading it that the case is without merit. I mean, for God’s sake, the plaintiff says I’m from Mars and that I’m mentally attacking him in his dreams. Do I really need to respond to the complaint?
Yes, you must respond to the complaint. The question is reasonable, but based on a false assumption. It is essential that you understand that NO ONE AT THE COURT WILL EVER READ THE COMPLAINT. Let me explain the process. A lawsuit is commenced by the filing of a complaint. When the complaint is filed, the clerk stamps a date on it, returns a stamped copy to the plaintiff, and then puts the complaint in the file, never to be seen again. The defendant reads the complaint to file an answer, and the answer follows the same process. No one at court reads the complaint or the answer. Even if the case goes all the way to trial, no one at the court will ever read the complaint or answer, UNLESS those documents are somehow put in dispute by the parties.
Let’s use our Man from Mars complaint to show just how far this goes. You are sued by someone for infliction of emotional distress because, according to the complaint, you are a Martian and you are attacking him in his dreams. You want to get the judge to take a look at the complaint, so you file what is called a “demurrer,” which states that the complaint fails to state a cause of action. The judge will then look at the complaint, because you forced him or her to do so. But even then, the judge MUST assume that all the allegations in the complaint are true. So, the complaint says you are a Martian, and you have mental powers you are using to attack him. Taking those facts as true, then the plaintiff has properly stated a cause of action for infliction of emotional distress, and you will be ordered to answer the complaint.
Why is such an absurd result permitted? The reason is that cases must be decided by the EVIDENCE. Again, let’s use our crazy facts to illustrate the point. This time, we’ll make you the plaintiff. You were happily living you life in your home, but a Martian really did move in next door and he really is attacking you in your dreams. Do you want the judge to have the power to throw out a complaint based only on his own beliefs or understanding of the facts? How will we ever stop the Martians if every judge throws out any complaint involving extraterrestrials? OK, the Martian example is extreme, and the truth is you probably could get the judge to take judicial notice that no Martians have ever visited Earth and dispose of the case by way of demurrer. But what about cases that are not so extreme? What if you are suing because you tripped on a crack in a sidewalk that was not properly maintained? Should the judge be able to throw out your complaint, because he doesn’t remember seeing a crack the last time he walked on that sidewalk, or because he believes that no one is clumsy enough to trip on a crack? Don’t you want the opportunity to present your evidence before the judge decides the merits of your case?
Bottom line. When you are being sued for what you think is a frivolous reason, it gets very frustrating that you must go through the process for a period of time before you can force the judge to examine the facts and evidence by, say, a motion for summary judgment. But that is the price you pay for the day that you become the plaintiff and don’t want your case thrown out on the whim of a judge who has never seen your evidence. No one is better than Morris & Stone at disposing of frivolous cases, but even we must use the process.
If you are going it alone, or if you just want to understand what your attorney is doing, here are some excellent reference materials:
Civil Procedure Before Trial is the civil litigation bible in California. All judges are provided a set of these guides and they are what the judges refer to when they are deciding procedural matters. They are hugely expensive to buy, but you can use them for free at any law library. As far as I know, every county has at least one law library, usually near the courthouse. If your financial circumstances are such that you simply can’t afford an attorney and you are trying to navigate the legal system by yourself, I cannot imagine trying to do so without access to Civil Procedure Before Trial. Even after more than 20 years of litigation, I refer to these volumes on an almost daily basis. And even if no law library is convenient to you and you are forced to buy these volumes, consider that the cost is less than what you would pay for three hours of an attorney’s time, on average.
Incidentally, judges and attorneys refer to this set of guides as “Weil and Brown”, referring to the judges that wrote it. Technically it is what is referred to as a “secondary source” since it is not case law, but it is so well regarded that it is permissible to cite to it directly. If you look on the first few pages it provides the proper citation format to be used when citing the materials in a brief. With these volumes in hand, preparing or defending against a motion is far easier since all of the law and procedures are spelled out; you need only quote from the text.
Represent Yourself in Court: How to Prepare & Try a Winning Case, is an outstanding self-help litigation book. If, understandably, you can’t afford Civil Procedure Before Trial, then this is the minimum investment you must make if you want to maximize your chances of winning. This guide is so helpful in explaining the process that I sometimes provide copies to my clients so they can better understand what I am doing. Even if you have access to Civil Procedure Before Trial, this offers a nice supplement since it explains things in layman’s terms.
Fewer than 10 percent of cases that are filed ever go all the way to trial. They are either decided by way of motion, settled, or abandoned by the plaintiff. However, if you are going it alone and find yourself approaching trial, then this DVD series is an excellent way to prepare for trial. It offers a very detailed guide to witness questioning, introducing evidence, and the other parts of putting on a trial. The author, Robin Yeamans, is a divorce attorney, so the examples are based on a family law matter, but the examples will be useful in any civil court proceeding.