Introduction to Civil Litigation – Part 2 – Summons and Complaint
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While all cases are different, and the litigation required for each case varies given the unique facts, every case begins with the plaintiff, be it an individual, association, or entity, filing the Complaint. The Complaint will contain one or more “causes of action” such as Breach of Contract, Specific Performance of a Real Estate Contract, Quiet Title, Partition of Real Property, Dissolution of Partnership, Accounting, Negligence, and Fraud. The Summons provides notice to the defendant(s) that they have 30 days to answer or respond to the complaint. The complaint informs the defendant about that conduct the plaintiff is asserting they did or failed to do which the plaintiff now demands money or some other type of relief.
When filing any summons and complaint in California, the plaintiff must also file a Civil Case Cover Sheet. Failure to submit this one-page form will result in a complaint being rejected by the court clerk.
Each cause of action has its own pleading requirements. For example, A complaint to quiet title to real property must be verified (signed by the plaintiff(s) under penalty of perjury) and must contain all the following information:
1) a description of the property that is the subject of the action. This must include both the legal description and the street address or common designation if any;
2) the title of the plaintiff as to which a determination of quiet title is sought. If the complaint is based on adverse possession, the complaint must allege the specific facts constituting the adverse possession;
3)the adverse claims to plaintiff’s title;
4)the date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint must include a statement of the reasons why a determination as of that date is sought: and
5)a prayer for the determination of plaintiff’s title against the adverse claims.
The plaintiff must name as defendants all persons known or unknown claiming an interest in the property. Any person who claims an interest in the property can join in the action, whether named as a defendant.
In those real estate cases where title to the property is at issue, such as Quiet Title or Partition cases, the plaintiff must also record a Notice of Pendency of Action, also referred to as a “Lis Pendens”. This document must be mailed to the defendants by certified mail no less than five days before it is recorded. The tactical purpose of the Lis Pendens is to prevent defendants or third parties from either buying or more commonly borrowing money against a piece of property.
When filing a lawsuit, it is important to ask for some sort of relief. While a prayer for monetary damages is most common, it is also appropriate that the court is asked to order the defendant to do or stop doing something, to declare what rights a person or group of persons have or to punish a party with punitive damages. Failure to state a specific type of relief will result in a defective complaint.
After the Summons and Complaint have been filed in the appropriate county or federal court, they must be properly served on the defendant. Use of a licensed process server is always recommended. Once filed and served litigation has begun and the timeline for the defendant respond commences.
In the next installment of this series, we will explore the various different ways a defendant may respond to a complaint.
The attorneys of BPE Law Group, PC. have been advising our clients on real estate, business, and estate planning issues for over 20 years and have assisted numerous clients in business and real estate matters and have represented clients in hundreds of lawsuits. If you have questions concerning any legal matter, give us a call at (916) 966-2260 or e-mail Keith at firstname.lastname@example.org or Robert at email@example.com. Our flat fee consults for new clients may get you the answers you need for the questions you have.
The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.