CALIFORNIA CIVIL LITIGATION INTRODUCTION TO PLEADINGS 2005 by

CALIFORNIA CIVIL LITIGATION INTRODUCTION TO PLEADINGS © 2005 by Thomson Delmar Learning. All Rights Reserved. 1

PLEADINGS— define the issues of the case. 2

STATE COURT PLEADINGS Complaints Demurrers Answers Cross-complaints 3

COMPLAINTS— contain the factual allegations and request for relief of the plaintiff. 4

DEMURRERS— motions made before answering to challenge a complaint, crosscomplaint, and, rarely, an answer. 5

ANSWERS— contain the denials, defenses, and relief sought by the defendant. 6

CROSS-COMPLAINTS— contain the affirmative claims of and relief sought by a party other than the plaintiff. 7

FEDERAL COURT PLEADING Complaints Cross-complaints/Counterclaims/Third Party Claims Answers 8

FEDERAL COURT CROSS-ACTIONS ¨ Counterclaim – by defendant against plaintiff. ¨ Cross-complaints – against a co-party. ¨ Third-party claim – against a party new to the action. 9

FEDERAL COURT MOTION TO DISMISS— equivalent to state court demurrer. 10

ALLEGATIONS— State court: “causes of action” Federal court: “claims” and “counts” 11

CAUSES OF ACTION— legal theories applied to the facts of the case to justify relief sought. 12

ANSWERS— ¨ Denials of allegations of the complaint ¨ Affirmative defenses showing defenses to the allegations of the complaint ¨ Request for relief that plaintiff take nothing 13

PARTIES— ¨ Plaintiff must be the “real party in interest. ” ¨ All parties must have “capacity. ” ¨ Some parties must be joined in a single action or any right to recover from them is lost (“compulsory joinder), and others may be joined in that action, otherwise a separate action can be brought against them (permissive joinder”). 14

REAL PARTY IN INTEREST— the person who has the right to sue under substantive law. 15

CAPACITY ¨ All natural persons have capacity except minors and incompetents. ¨ Unnatural persons (entities) must be properly formed and qualified. LACK OF CAPACITY PRECLUDES MAINTAINING SUIT OR DEFENSE. 16

COMPULSORY JOINDER A party must be joined in the case if 1. relief cannot be obtained without him, and 2. lack of joinder threatens future litigation. 17

PERMISSIVE JOINDER A party may be joined if 1. the right to relief arises out of the same general events; 2. the right asserted is joint/several; and/or 3. there is one or more common questions of fact or law. 18

SUMMARY Types of Pleadings, Joinder PREVIEW Complaints/Cross-Complaints 19