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I HAVE JUST BEEN SUED IN SAN DIEGO – NOW WHAT?

I HAVE JUST BEEN SUED IN SAN DIEGO – NOW WHAT?

 I HAVE JUST BEEN SUED IN SAN DIEGO – NOW WHAT?

Relax.

Step back and take a deep breath. Being sued is stressful and unpleasant, but, whether this is a claim for breach of contract, negligence, fraud, or a neighborly dispute over your property boundary, it is simply a new problem that requires your attention. Civil courts resolve personal and business disputes between parties typically where money, property, or injury is at issue. The parties involved in a civil lawsuit can either hire lawyers to represent them or can represent themselves without an attorney, which is known as pro se. The person suing you, the plaintiff, must prove their claims in court. Keep in mind that in California over 90% of lawsuits settle before trial.

Copy and read the complaint and summons.

The lawsuit you received will include a summons and complaint. You should immediately make a copy or two of the paperwork. Keep the original to give to your lawyer (or for your file if you choose to represent yourself). The summons notifies you that you have been sued and advises you of the time deadline to file your response. The complaint contains the claims being made against you (what you are claimed to have done wrong) and what the plaintiff wants from you, for example, the plaintiff may be suing you for breach of contract and seeking money damages or to stop you from taking certain actions (known as an injunction) or both. You should read the complaint and take notes. You should also begin to compile all of your relevant documents, letters, emails, contracts, bills, photographs, and any other evidence that  has anything to do with the dispute.

Decide whether or not to hire an attorney.

After reviewing the complaint against you, weigh the seriousness of the lawsuit and the potential outcomes. If you are being sued for a few hundred dollars for cutting your neighbors tree down, you may decide an attorney is not necessary. If your company is being sued for theft of trade secrets and millions of dollars of damages, you probably want a lawyer. If you decide to obtain a lawyer, you should call your lawyer as soon as possible. If your lawyer is not a litigator, ask him or her for a referral to one.  If you don’t have a lawyer, you should ask a few trusted advisors for referrals. The State Bar of California also publishes a pamphlet titled “How Can I Find and Hire the Right Lawyer?” Even if you don’t think you can afford a lawyer, it is still beneficial to meet with one. Many will provide a free initial consultation and may be able to work out a creative solution so that they can be paid and you can have legal representation. You should make sure the attorney you choose practices in the area of law relevant to your lawsuit. You should bring the summons, complaint, and all of the documents you compiled that relate to the dispute to your initial meeting. If you have liability insurance, you also should call your or your company’s insurer. If your insurance covers the claims being made, the insurance company may assign a lawyer to your case. An attorney can help protect you or your company from the lawsuit, but only if you seek their help.

Decide on how to respond.

It can be very helpful to get advice from a lawyer to decide if, and how, to respond. Remember that time is pressing, however, as a response to the lawsuit must be filed with the court within 20-30 days depending on where you live and where you were sued (30 days in California State Court and 21 days in Federal Court). Generally speaking, there are five types of responses:

Do nothing. If you choose to ignore the summons and complaint, the court can automatically rule against you and in favor of the plaintiff. The plaintiff may then receive a default judgment and began to enforce it against you. Even if you believe all the allegations against you are true, however, you may still want to file a response to try to negotiate a better settlement with the plaintiff. By filing a response, you will have more time and opportunity to settle.

Negotiate a settlement.

At any point during the case, you can try to negotiate an out-of-court settlement with the plaintiff.  If the plaintiff is telling the truth, you can save money, time, and hassle if you solve the problem before the trial. Or, perhaps it is a simple misunderstanding that you can clear up quickly. Either way, you can try to talk to the plaintiff directly or ask your lawyer to start discussions with the plaintiff’s lawyer. Often times a settlement is preferable to a costly trial or if there’s a good chance you could lose the case. Also, if you think you owe the plaintiff something, but you cannot pay it now, the plaintiff may be willing to work out a payment plan with you. If you settle the case, be sure the plaintiff files a request to dismiss the case before your deadline to file a response and remember that if a settlement is not reached, you must file a response with the court within the time deadline.

File an answer to the plaintiff’s complaint.

An answer is a formal statement, in writing, of your admission or denial of each allegation made against you and your claimed defenses to the lawsuit. You can say the plaintiff’s claims are untrue or you can say the claims are true, but give more information and reasons to defend your actions or explain the situation. In California State Court, the Code of Civil Procedure provides the requirements of what you should put in your answer and denial (in Federal Court, the Federal Rules of Civil Procedure govern). California Superior Court also provides a few form answers and general denials that you can may be able to use depending on the type of case you have (click here to view forms: (http://www.sdcourt.ca.gov/portal/page?_pageid=55,1058589,55_1058624&_dad=portal&_schema=PORTAL). If you cannot find a form that fits your case, you can create your own answer or denial on pleading paper. Whether using a form or not,  it is very important that you write down any affirmative defenses you want to tell the court. Affirmative defenses are justifications or excuses by you that, if proven, would defeat or reduce plaintiff’s claims, even if the allegations alleged in the claim are all true. For example, if you were sued for breach of contract because you canceled a home improvement contract, you may be able to argue you canceled the contract because the contractor was doing poor quality work. If you want the court to consider your reason for canceling the contract, you need to raise it in your answer. If you fail to raise an affirmative defense in your answer, 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 properly prepare.

File a Counterclaim.

At the time you file your answer, you must also file any claims you may have against the plaintiff that relate to the same matter. The pleading is called a counterclaim. For example, if you are being sued because of involvement in a car accident, but you believe the plaintiff actually caused the accident, you would file a counterclaim alleging that plaintiff was at fault. You may also choose to file a counterclaim against the plaintiff on unrelated matters. Not every lawsuit will include counterclaims.

File a Motion.

There are several motions you can file before having to file an answer that may help resolve the dispute, such as a motion to quash (cancel) service of summons, a motion to stay (hold) the case, a motion to dismiss the complaint (called a demurrer in California Superior Court), and/or a motion to strike portions of the complaint. In each of these motions, you will be asking the court to do something and must, therefore, write to the court with the reasons supporting your request. Note that by filing certain responses may result in your waiver of certain issues. For example, if you choose to answer the complaint, you will be waiving your ability to attack the complaint for lack of personal jurisdiction, inadequacy of process, or inconvenient forum. See California Code of Civil Procedure Section 418.10.

A motion to quash service of summons asks the court to rule that the plaintiff did not properly serve the lawsuit on you or your company. Your motion should tell the court why service was wrong. California Code of Civil Procedure Sections 415.10-415.95 explain proper service in California.

A motion to dismiss the complaint (called a demurrer in California Superior Court) asks the court to throw out the complaint due to error by the complaint, for example if the complaint does not meet the legal requirements of telling you why you are being sued (fails to state a cause of action) or the claims are too old to bring against you (legally time-barred because the statute of limitations has run out). California Code of Civil Procedure Sections 430.10-430.90  explain the procedural requirements for filing a motion to dismiss.

A motion to strike the complaint asks the court to take something out of the complaint because it is not legal, it doesn’t matter, or it is not understandable. For example, upon a motion to strike a court could remove a complaint’s request for punitive damages under claims that do not allow for an award of punitive damages. California Code of Civil Procedure Sections 435-437 cover the procedural requirements for a motion to strike.

If you win one of these motions, the court will likely allow the plaintiff to serve you again with an amended complaint and then you will have 30 more days to file another response (unless the court orders otherwise). If you lose, the court will order you to file your answer within a certain time period. Remember, that each type of response has a different legal implication that may help, or even hurt your case in the future, so it is very important you understand all the consequences to what you choose to file. Of course, a lawyer can advise you on the best type of response for your case. Even if you cannot afford a lawyer to handle your whole case, you may be able to get a consultation for limited guidance on what your best strategy is.

File your response with the court.

If you decide to file a response, you must file it in the same courthouse where the lawsuit was filed. The address should be on the papers you were served by the plaintiff. Make sure you take your original plus at least 2 copies to the clerk’s office to file. 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!

Serve the plaintiff.

To serve the plaintiff with a copy of your response, have someone 18 or older (that is not you and who is not involved in the case), personally deliver or mail a copy to the plaintiff’s lawyer, or if the plaintiff is self-represented, serve the plaintiff directly. The person who does this for you must fill out a proof of service form. (Click here for California Superior Court forms http://www.sdcourt.ca.gov/portal/page?_pageid=55,1555611&_dad=portal&_schema=PORTAL). Then, make sure you file the proof of service form with the court and keep a copy for yourself.