This section pertains to lawsuits other than Unlawful Detainers. If you have been served with an Unlawful Detainer (eviction) lawsuit, go to the Landlord/Tenant section of this website.
Once you are served with a lawsuit (called a Summons and Complaint) you need to decide whether you are going to respond to the lawsuit. If you choose to respond, you then have to decide how. If you were served with a Petition, the information below does not apply. This is a really good time to talk to a lawyer for advice on whether to respond and, if so, how to best handle your case. Click for help finding a lawyer.
The party suing you is called the plaintiff. You are called the defendant.
Generally, you have 30 days AFTER the date you are served to file a response with the court. The 30 days include weekend days and court holidays. If the last day falls on a day that the court is closed, you have until the next day that the court is open.
If you were served by substituted service, meaning the Summons and Complaint were given to someone else in your household or your place of work, and another copy was mailed to you, you have 40 days from the date of the mailing to file your response. BUT before you count on these extra 10 days, make sure the plaintiff’s proof of service says you were substitute served and not personally served.
You can find out by calling the plaintiff’s lawyer and asking how the process server claims you were served and also what date your response is due. Send a fax or a letter to the law firm confirming the information you are given.
If you do not file a response within 30 days after you were served, the plaintiff can file a form called "Request for Default," which means you have defaulted and can no longer respond to the lawsuit to defend yourself. If there is any part of the case you disagree with, or any amount of money you feel you do not owe, you will not be able to tell the court once you have defaulted.
After a default is entered the plaintiff can ask the court to enter a default judgment against you. The plaintiff can prove his or her case without you disputing what he or she says, and can win up to the amount that he or she asked for in the lawsuit against you.
Then the plaintiff can enforce the judgment against you. This can mean getting money from you by garnishing your paycheck, levying on your bank account, or putting a lien on your house. A judgment against you can also show up on your credit report. This can make it hard to get a credit card or a loan. A judgment is good for 10 years and can be renewed for an additional 10 years.
In some cases it may make sense for you not to respond. This is a very difficult decision to make, so talk to a lawyer about what would be best for you in your particular situation.
These are the most common ways to respond to a lawsuit:Filing an Answer:
If you do not find the correct form to fit your case, you will have to formally prepare the document on pleading paper in accordance with the California Rules of Court, rules 2.100 to 2.119. Code of Civil Procedure section 431.30(b) explains what you should put in your answer. You may wish to seek the advice of a lawyer to be sure the document is properly prepared.
The General Denial (PLD-050) form can be used in certain types of civil cases, but not in others. It is a form that generally denies what the plaintiff is claiming. You must use this form if the amount asked for in the complaint or value of property involved is $1,000.00 or less. You may use a General Denial form if the complaint is not verified or the complaint is not verified and the case is a limited civil case ($25,000.00 or less) BUT NOT if the complaint involves a claim for more than $1,000.00 that has been assigned to a third party for collection.
With an answer or a general denial, it is very important that you write down any affirmative defense you want to tell the court. These are defenses that you want the court to consider on your behalf. For example, if you were sued for breach of contract because you canceled a home improvement contract, but you canceled the contract because the contractor was doing poor quality work, if you want the court to consider your reason for cancelling the contract, you need to raise it in your answer. If you fail to raise a defense in your answer or general denial, the court may prevent you from talking about it at the time of trial. The reason for this is to make sure both sides know about the claims and the defenses in advance of the trial so they can prepare.
In certain situations, you can respond to the lawsuit by filing a motion (a request) that usually tells the court that the plaintiff made a mistake in his or her lawsuit. Some of the more common motions are:Demurrer:
You can file a demurrer to tell the court that the complaint filed by the plaintiff does not meet the legal requirements to tell you the reasons why you are being sued. Sometimes a demurrer is filed when the amount of time that the law gives the plaintiff to sue you on the claim (called the "statute of limitations") has run out. By filing a demurrer you are saying that even if the complaint is true, there is no valid legal reason for you to be responsible for what the plaintiff claims you owe him or her, and therefore you should not have to answer the lawsuit. There is no form for this. You must create your own Demurrer on pleading paper. Note: Sometimes by filing a demurrer you may be admitting that what the plaintiff says is true.
Give your reasons why the court should take it out of the complaint. You must create your own Motion on pleading paper.
This motion asks the court to say that the complaint was not served properly. Say why service was not right. Read Sections 413.10 – 418.10 of the Code of Civil Procedure about service carefully so you can explain to the court why you were not served properly. If you win this motion, the plaintiff will probably have to serve you again and then you will have 30 more days to file a response. If you lose, the court will give you a few days to file your response. You must create your own Motion on pleading paper.
A motion to stay asks the court to put the case on hold for a while, so that something else can happen. For example, if you are in the middle of a bankruptcy case, you can file a motion to stay so that the case stops until your bankruptcy case is finalized. You must create your own Motion on pleading paper.
You can learn more by reading the Motions section of this website.
Talk to a lawyer! A lawyer can answer any questions you may have about what type of response would be best in your case. Each type of response has different legal implications that could even hurt your case in the future, so it is very important you understand all the consequences to what you choose to file. Click for help finding a lawyer.
Even if you cannot afford a lawyer to handle your whole case, you may be able to get a consultation for on a limited issue or for a limited time period to help you decide on your best strategy. To get more information about limited-scope representation or for help finding a limited-scope lawyer, read the section on Limited-Scope Representation.
If you decide to file a response, you must eFile it unless your case is exempt from mandatory eFiling.Pursuant to amendments to Code of Civil Procedure section 1010.6 and Orange County Superior Court Rule 352, all documents filed in limited, unlimited, and complex civil actions must be filed electronically unless the Court rules otherwise.
You will have to pay a filing fee to file your papers. If you cannot afford the filing fees, you can ask the court for a fee waiver. If the court approves your fee waiver request, you will not have to pay the fees. But if you win your lawsuit and collect costs from the other side, the court may ask you to pay back the waived fees.
Once you file your response to the plaintiff’s lawsuit, you must serve a copy on the plaintiff. You can also serve a copy of your response BEFORE you file the original with the court. Either way, make sure you file your response before the 30 days are up.
To serve the plaintiff with a copy of your response, have someone 18 or older (not you and not anyone involved in the case) mail a copy to the plaintiff. If the plaintiff is represented by a lawyer, a copy of your response gets served on the lawyer. If the plaintiff is self-represented, it gets served on the plaintiff. The person who does this for you must fill out a Proof of Service By First Class Mail-Civil (POS-030) form. Then, make sure you file this proof of service form with the court and keep a copy for yourself.
If you filed a motion as your response, then follow the direction of the judge when he or she makes a decision on your motion.
If you filed an answer or general denial to the complaint, there are a number of steps before the trial. Read the "Before Trial" and "Trial" Section of this website to find out what your next steps are.
If you have a claim against the plaintiff and you want the court to hear your claim, you have to file a Cross-Complaint against the plaintiff at the same time you file your answer. If you do not, you will waive your claim. This may also be true for claims against third parties if they are based on the same facts and circumstances as the lawsuit the plaintiff filed against you. For example, in a car accident case, if you are sued for injuries you are alleged to have caused someone else, but you also suffered injuries and you believe those were the fault of the plaintiff or other third parties, in order for you to get the court to award you damages for your injuries, you would have to file a Cross-Complaint requesting damages.
There is one form Cross-Complaint: Cross-Complaint for Personal Injury, Property Damage, and Wrongful Death (PLD-PI-002). If this is not the correct form to fit your case, you will have to formally prepare the document on pleading paper in accordance with the California Rules of Court, rules 2.100 to 2.119. Read the Code of Civil Procedure what information the Cross-Complaint must contain. You may wish to seek the advice of a lawyer to be sure the document is properly prepared.
If you file a Cross-Complaint, you have to let the cross-defendant know formally that you are suing. This is called "service." You have to have all papers "served" on every party in the lawsuit. You cannot serve the lawsuit yourself. It must be served by someone who is not a party to the action, at least 18 years old.
If you are adding new parties to the lawsuit, you will also need to complete a Summons-Cross Complaint (SUM-110) for the Cross-Complaint and have the new parties personally served with the Summons and Cross-Complaint. After service is complete, the server must complete the Proof of Service on the reverse side of the Summons. File the Proof of Service with the court right away.
Read more about Service of Process on the California Courts website.
You do not need a Summons if the only persons you are suing are the ones who are suing you. You must serve a copy on the plaintiff. To serve the plaintiff, have someone 18 or older (not you and not involved in the case) mail a copy to the plaintiff. If the plaintiff is represented by a lawyer, a copy of your Cross-Complaint gets served on the lawyer. If the plaintiff is self-represented, it gets served on the plaintiff. The person who does this for you must fill out a Proof of Service By First Class Mail-Civil (POS-030) form. File your Answer to the Complaint, Cross-Complaint, and Proof of Service by First Class Mail with the court at the same time.
Bankruptcy is a legal process to help debtors (people who owe money) get relief from the debts they cannot pay and, at the same time, help creditors (people who are owed money) get paid from whatever property or assets the debtor has that he or she does not need to live. Deciding to file for bankruptcy is a very tough decision. You may be feeling overwhelmed and bankruptcy seems like the only option. But think about the decision carefully because it can really affect you for a long time. Also, bankruptcy does not remove all debt, and there are certain types of debt that cannot be discharged (eliminated) in bankruptcy.
Bankruptcy may not always work to save your home or property, so you need to get advice from a bankruptcy lawyer about whether or not bankruptcy is a good option for you. Since there are different types of bankruptcy, one may be better for you than another, or bankruptcy may not be a good solution for your type of problems at all.For more information read: