Pleadings

• Author: Robert F. Kane/Donald G. Rez
• Pages: 703-826

Chapter 13

Pleadings

QUICK VIEW

Scope: Basic pleading rules; format requirements; drafting complaints, answers, and cross-complaints; amending

and supplementing pleadings.

Strategies and Tactics:

All pleadings: Use pleadings to advantageously frame the issues that will be the subject of discovery, dispos-

itive motion practice (e.g., summary judgment), and trial.

Complaint: Decide how much plaintiff should reveal in the complaint. Draft the complaint to withstand all

dispositive motions. Consider the complaint’s effect on settlement and on the judge’s opinion of the case

and counsel.

Response: Before responding, consider the case’s merit, settlement, and the cost of defending. Consider

pre-answer motions: Is the complaint defective and, if so, are the defects curable? When drafting the

answer, remember it can be used as evidence against your client. Also remember that certain defenses are

waived if not asserted in the answer (or prior motion). Consider bringing cross-complaints against plain-

tiff, other defendants, and third parties.

Statutes and Rules: CCP §§420-422.40 (in general); 425.10 (contents of complaints and cross-complaints);

425.115; 425.13-415.14 (punitive damages); 425.12 (judicial council forms); 425.13-425.16 (gatekeeper pro-

visions); 426.10-426.70 (compulsory cross-complaints); 428.10-428.80 (permissive cross-complaints); 446

(verification); 452-461 (general rules of pleading); 464-465 (supplemental pleadings); 576 (amendment of plead-

ings or pretrial conference order); CRC 1.6, 1.10-1.11 (timing and holidays), 1.20-1.22 (service and filing),

1.30-1.45 (Judicial Council Forms), 2.2 (definitions, time, application), 2.100-12.119 (format of papers), 2.130-

2.141 (general rules on forms), 2.200-2.210, 2.250-2.261, 3.200-2.306 (filing and service), 3.110 (service of

complaint), 3.220-3.222 (papers to be served), 3.300 et seq. (related cases), 3.72- et seq. (case management),

3.1110 et seq. (law and motion-general provisions), 3.1300-3.1302 et seq. (pleadings and venue motions); CRC

Appendix A (List of Judicial Council Forms).

Related Topics: Presuit Activities, Ch 2; Statutes of Limitations, Ch 3; Personal Jurisdiction, Ch 7; Venue and

Forum Non Conveniens, Ch 8; Summons and Service of Process, Ch 9; Parties, Ch 12; Motion Practice, Ch 14;

Attacking the Pleadings, Ch 15.

California Pretrial Practice & Forms 13-2

Forms in Digital Access: See digital access for the following forms:

• Form 13:10 Caption.

• Form 13:20 Verification.

• Form 13:30 Complaint for Breach of Contract and Breach of Fiduciary Duty.

• Fo rm 13:40 Complaint for Breach of Contract and Breach of Implied Covenant of Good Faith and Fair Dealing.

• Form 13:50 Complaint for Breach of Contract to Negotiate in Good Faith and Breach of Covenant of Good

Faith and Fair Dealing.

• Form 13:60 Complaint for Legal Malpractice, Breach of Fiduciary Duty, and Unfair Competition.

• Form 13:70 Stipulation and Order Continuing Time to Respond to Complaint.

• Form 13:80 Ex Parte Application for Extension of Time to Respond to Complaint.

• Form 13:90 Answer to Complaint (General Denial and Affirmative Defenses).

• Form 13:100 Answer to Complaint (Specific Denials and Affirmative Defenses).

• Form 13:110 Answer to Complaint for Rent.

• Form 13:120 Caption for Cross-Complaint.

• Form 13:130 Cross-Complaint for Indemnity, Equitable Contribution, and Declaratory Relief.

• Form 13:140 Plaintiff’s Notice and Motion to File First Amended Complaint.

13-3 Pleadings

TABLE OF CONTENTS

I. ALL PLEADINGS

A. BASIC POINTS

§13:01 “Pleading” Defined

§13:02 Types Allowed Are Limited

§13:03 Liberal Construction

§13:04 Code Pleading But Generally Only Notice Required

B. PURPOSES

§13:10 Basic Points

§13:11 Frame Scope of Litigation

§13:12 Toll Statutes of Limitations

C. FORMAT (FOR ALL COURT PAPERS)

§13:20 Type of Paper, Printing, and Formatting

§13:21 Copies or Originals

§13:22 Caption Page

§13:23 Short Caption

§13:24 Footer

§13:25 Official Forms

§13:26 Use of Official Forms

§13:27 Civil Cover Sheet

§13:28 Signature

§13:29 Format Violations

D. DRAFTING RULES AND TECHNIQUES

§13:40 “Sufficiently Particular” Requirement

§13:41 No Argument

§13:42 Plain and Concise Statements

§13:43 Multiple Claims or Defenses

§13:44 Incorporating by Reference

§13:45 Alternative Pleading

§13:46 On Information & Belief

§13:47 Attached Documents: Incorporated by Reference

E. VERIFICATION

1. Basic Points

§13:60 Subscription and Verification Compared

§13:61 Purpose and Nature

§13:62 Personal Knowledge of Allegations

§13:63 Advantages

§13:64 Disadvantages

2. When Required

§13:70 Optional Unless Specifically Required

§13:71 When Required in Complaints or Petitions

§13:72 Answers

3. By Whom

a. Requirements and Exceptions

§13:80 General Requirement

§13:81 Any Plaintiff

§13:82 Corporations

§13:83 Other Private Entities

§13:84 Governmental Entities: No Verification Required

b. Attorney

§13:90 Party “Not in County”

§13:91 Attorney Personally Knows Facts