You've been wronged ... but you don't have the money to hire an attorney and file a lawsuit right now. How long can you wait before you must file the lawsuit? Can you wait indefinitely? No. In all states, as well as the federal court system, a complaint must be filed within a certain number of years from the date the harm occurred or was discovered, or else it is time barred. In California, these "statutes of limitations" are generally found in the Code of Civil Procedure ("CCP"), though there are other statutes in different codes, depending on the type of wrong. My focus today is on civil wrongs and, as always, my discussion is focused on California law.
If you were injured in a car accident, punched in the nose, fell off a ladder, or were otherwise hurt, you have 2 years from the date you were injured to sue the party you believe wronged you (CCP Section 335.1). If your tenant fails to pay you for rent, and moves out, you must file your lawsuit for breach of lease either within 2 years (if an oral lease - CCP 339.5) or 4 years (if a written lease - CCP 337.2). If you just bought a business, and the agreement is in writing, but you later determine that the business was overvalued due to misrepresentations by the seller, you may sue for multiple reasons. Your breach of contract action must be filed within 4 years of the date of the breach, likely the close of escrow (CCP 337); your fraudulent representation action must be filed within 3 years from the date you discovered that the representations were false (CCP 338). If you purchased a new house, and discover water damage 7 years after you move in, you may still have a right to file a complaint, but you must do so within 10 years of when the home was substantially completed (CCP 337.15); further, once you become aware of a defective condition in property, you have 4 years from the discovery date by which to file your lawsuit (CCP 337.1), subject to the 10 year statute of repose discussed above.
Thus, while a lawsuit usually need not be filed on the spot immediately after you have been wronged, it is important to seek legal counsel or otherwise investigate the time constraints that may hinder your ability to proceed at a later date, and one should do so within a reasonable time after becoming aware that a lawsuit may be necessary to recover damages for being wronged.
Importantly, once the limitations period has passed, your complaint will be time barred, and you will not be allowed to proceed. This is the case, even if your delay was caused by neglect, negligence, or mistake. If you are considering a civil lawsuit, I highly recommend that you seek out legal counseling immediately to determine whether your rights may be impeded by a statute of limitations.
HAPPY THANKSGIVING!!
November 24, 2010
November 15, 2010
Oops - I 'forgot' to Answer the Complaint - Now What?
So, you were served with a lawsuit and you read that you had 30 days to file a response with the court and serve that response on the plaintiff, but you forgot - now what? Well, in California, the result can have varied results, depending on various factors. Question: How long has your response been overdue? If your response was due filed and served yesterday (or even up to 2-3 weeks ago), you likely still have sufficient time to contact plaintiff or its counsel to request an extension to respond. You may hear a demand that you have waived time to attack the complaint, and must now file an Answer, but generally, you should still be given time to file a response, including an attack (Demurrer or Motion to Strike).
The rationale for allowing a "late" response is that, in California at least, courts "bend over backward" to allow all parties time to appear and have their side heard; the alternative, being defaulted by the plaintiff, takes time to finalize and, upon a request by the defendant, is almost always "set aside" - removed as though it did not occur. In fact, many attorneys often "stipulate" (agree) to set aside any default taken because the costs and time to oppose such request is so often met with a court granting the request to set aside, that it is pretty much, a waste of time.
With that said, of course, there are limitations to how long the court will allow a delay. California courts also expect cases to be processed diligently and timely. Where excessive delay occurs, even if by accident, courts have the discretion to deny a defendant's request to set aside a default. The ability to set aside a default is highly impacted in cases where the Request for Entry of Default has, in fact, turned into a Default Judgment. At that point, a defendant has a much more difficult task in overturning a Entry of Judgment.
I hope this is informative to you - Have a Great Day!
The rationale for allowing a "late" response is that, in California at least, courts "bend over backward" to allow all parties time to appear and have their side heard; the alternative, being defaulted by the plaintiff, takes time to finalize and, upon a request by the defendant, is almost always "set aside" - removed as though it did not occur. In fact, many attorneys often "stipulate" (agree) to set aside any default taken because the costs and time to oppose such request is so often met with a court granting the request to set aside, that it is pretty much, a waste of time.
With that said, of course, there are limitations to how long the court will allow a delay. California courts also expect cases to be processed diligently and timely. Where excessive delay occurs, even if by accident, courts have the discretion to deny a defendant's request to set aside a default. The ability to set aside a default is highly impacted in cases where the Request for Entry of Default has, in fact, turned into a Default Judgment. At that point, a defendant has a much more difficult task in overturning a Entry of Judgment.
I hope this is informative to you - Have a Great Day!
November 12, 2010
Why Is My Case "Limited"?
Civil lawsuits filed in California are generally classified as one of three different types of jurisdiction: Small Claims, Limited, or Unlimited. The classification is usually based on the amount in controversy. There are certain exceptions, but that is the quick and easy answer for now. The determination is based upon codified law found in the California Code of Civil Procedure. You can search California Code for any statute you wish at the following website: www.leginfo.ca.gov.
Small Claims Jurisdiction: The legislature enacted Code of Civil Procedure Sections 116.110, et seq. (that means, including the sections immediately following the described section) to expedite minor disputes without having to expend lots of money and time in the superior court. Any matter where a person is demanding not more than $7,500.00 can be heard in small claims. Small Claims proceedings are quicker because, in effect, there is a form complaint, form response (if defendant wishes), and a trial in front of a judge sometime within 60 days from the date of the filing of the complaint. Only a defendant may appeal (thus, if the plaintiff loses, he is stuck with the defense judgment); and, the defendant only gets one chance to appeal, and that decision on appeal becomes final. Again, plaintiff may not appeal the new ruling if adverse to plaintiff. A big disadvantage to small claims is that the parties are not allowed to be represented by legal counsel at the original trial. On appeal, either side may choose to retain counsel, who may be present and "try" the case on behalf of the party. Once the trial has concluded, the judge usually provides a written opinion within 5 court days with the court's ruling.
Limited Jurisdiction: Limited Jurisdiction is for cases where the amount in controversy does not exceed $25,000.00 (exclusive of costs, legal fees, interest). Limited cases used to be heard in the "Municipal Court" but California has consolidated its court system, so any judge technically has the ability to be assigned to either limited or unlimited jurisdiction cases. Unlike small claims, limited jurisdiction parties may have counsel represent them throughout the litigation process. Generally, the "limited" case has the feel of a full-fledged lawsuit, may have juries, more discovery, and take longer. Unlike "unlimited" jurisdiction, however, the process is still expedited, with specific rules for discovery to minimize the costs associated with such process. For more on Limited statutory authority, see Code of Civil Procedure, Sections 85, et seq.
Unlimited Jurisdiction: Unlimited Jurisdiction is for cases where the amount in controversy is greater than $25,000.00 or otherwise deals with complex issues. Code of Civil Procedure Sections 410, et seq deal specifically with unlimited jurisdiction matters and how to proceed therein.
Hope this provides insight - Have a nice weekend!
Small Claims Jurisdiction: The legislature enacted Code of Civil Procedure Sections 116.110, et seq. (that means, including the sections immediately following the described section) to expedite minor disputes without having to expend lots of money and time in the superior court. Any matter where a person is demanding not more than $7,500.00 can be heard in small claims. Small Claims proceedings are quicker because, in effect, there is a form complaint, form response (if defendant wishes), and a trial in front of a judge sometime within 60 days from the date of the filing of the complaint. Only a defendant may appeal (thus, if the plaintiff loses, he is stuck with the defense judgment); and, the defendant only gets one chance to appeal, and that decision on appeal becomes final. Again, plaintiff may not appeal the new ruling if adverse to plaintiff. A big disadvantage to small claims is that the parties are not allowed to be represented by legal counsel at the original trial. On appeal, either side may choose to retain counsel, who may be present and "try" the case on behalf of the party. Once the trial has concluded, the judge usually provides a written opinion within 5 court days with the court's ruling.
Limited Jurisdiction: Limited Jurisdiction is for cases where the amount in controversy does not exceed $25,000.00 (exclusive of costs, legal fees, interest). Limited cases used to be heard in the "Municipal Court" but California has consolidated its court system, so any judge technically has the ability to be assigned to either limited or unlimited jurisdiction cases. Unlike small claims, limited jurisdiction parties may have counsel represent them throughout the litigation process. Generally, the "limited" case has the feel of a full-fledged lawsuit, may have juries, more discovery, and take longer. Unlike "unlimited" jurisdiction, however, the process is still expedited, with specific rules for discovery to minimize the costs associated with such process. For more on Limited statutory authority, see Code of Civil Procedure, Sections 85, et seq.
Unlimited Jurisdiction: Unlimited Jurisdiction is for cases where the amount in controversy is greater than $25,000.00 or otherwise deals with complex issues. Code of Civil Procedure Sections 410, et seq deal specifically with unlimited jurisdiction matters and how to proceed therein.
Hope this provides insight - Have a nice weekend!
November 5, 2010
Civil Lawsuits - Often anything but Civil
A "civil" lawsuit is one that is based on someone's non-criminal liability. In other words, the plaintiff is after either monetary relief (damages), specific performance (requiring a party to act pursuant to agreed-upon terms), or equitable relief (such as prohibiting someone from continuing to do something) and is alleging that the defendant has done something wrong to plaintiff or plaintiff's legal interests.
Non-civil lawsuits would include criminal prosecution, family law matters, probate, and a few other types not relevant here.
The term, "civil" also connotes one's being polite, or 'not rude'. Unfortunately, if you've ever participated in a lawsuit, you know that oftentimes, such definition could not be further from the truth. To some extent, it is difficult to understand why a party would be "nice" to the other party, especially if one is alleging that such party wronged him. "Yeah, you punched me in the gut, but let's be nice." Just doesn't sound right, does it?
On the other hand, the court system intends for the parties to act civilly towards each other - no shouting, yelling, arguing out of turn, in the court-room - lest a party wants to be held in contempt of court. (punished by the judge).
For this reason, I highly recommend that parties in any lawsuit, at a minimum, consult with legal counsel. While the system is designed to allow self-representation (individuals representing themselves are known as "in pro per"), even if not in small claims (*Exception - corporate entities must be represented by legal counsel), having emotionally charged parties represent themselves is asking for disaster, in my opinion.
While lawyers have been known to overreach the bounds of "zealous" representation for their clients - by being obnoxiously rude to the opposing counsel or party - usually such conduct is limited. Lawyers understand the procedures involved; understand tactics utilized to better a position, not just for mere harassment; and, in particular, are not drawn into unfamiliar territory, such as the in pro per party.
If you must consider the civil lawsuit, either as plaintiff or defendant, I urge you to consult with legal counsel and, do recommend retaining an experienced litigator to assist you in wading through the litigation mine field. It will keep emotions below a simmering point and allow you to concentrate on other issues.
What are your thoughts? Have A Great Weekend!
Non-civil lawsuits would include criminal prosecution, family law matters, probate, and a few other types not relevant here.
The term, "civil" also connotes one's being polite, or 'not rude'. Unfortunately, if you've ever participated in a lawsuit, you know that oftentimes, such definition could not be further from the truth. To some extent, it is difficult to understand why a party would be "nice" to the other party, especially if one is alleging that such party wronged him. "Yeah, you punched me in the gut, but let's be nice." Just doesn't sound right, does it?
On the other hand, the court system intends for the parties to act civilly towards each other - no shouting, yelling, arguing out of turn, in the court-room - lest a party wants to be held in contempt of court. (punished by the judge).
For this reason, I highly recommend that parties in any lawsuit, at a minimum, consult with legal counsel. While the system is designed to allow self-representation (individuals representing themselves are known as "in pro per"), even if not in small claims (*Exception - corporate entities must be represented by legal counsel), having emotionally charged parties represent themselves is asking for disaster, in my opinion.
While lawyers have been known to overreach the bounds of "zealous" representation for their clients - by being obnoxiously rude to the opposing counsel or party - usually such conduct is limited. Lawyers understand the procedures involved; understand tactics utilized to better a position, not just for mere harassment; and, in particular, are not drawn into unfamiliar territory, such as the in pro per party.
If you must consider the civil lawsuit, either as plaintiff or defendant, I urge you to consult with legal counsel and, do recommend retaining an experienced litigator to assist you in wading through the litigation mine field. It will keep emotions below a simmering point and allow you to concentrate on other issues.
What are your thoughts? Have A Great Weekend!
November 1, 2010
You've Filed Your Civil Complaint ... Now What?
Hopefully, the great majority of you have never had to file a civil complaint against anyone (you as the 'plaintiff'). Even more pertinent, hopefully, you've never been on the receiving end of a lawsuit (you as the 'defendant'). However, at some point, you may believe that litigation is the only recourse remaining. In that case, you will need to file what is known in California as a "complaint" - I'll write more about the specifics of filing the complaint down the road (which form(s) to use, how to allege facts, what to ask for, etc.).
For now, let's assume you've filed (or your attorney has), ... now what? Now, you must serve the defendant(s) with what is known as a "summons" and your complaint. The summons is a form that provides notice to the defendant of its immediate rights and obligations. The summons in California indicates that the defendant "has been sued by" you, and that defendant has 30 days from the date of personal service to file a formal response with the court and serve it on you/plaintiff or your counsel. Service of the response may be (and usually is) by mail, even if the defendant counter-sues you (known in California as a Cross-complaint). Service of the summons/complaint usually takes anywhere between 1-15 days from the date of the filing of the lawsuit, but it can take much longer, depending on the access to defendant, its whereabouts, and various other factors. (I'll have more on this in upcoming entries as well).
However, the defendant need not file an answer. Defendant has the right to object for numerous statutory reasons - such as, wrong person, improper jurisdiction, or your complaint fails to allege sufficient facts to state a cause of action (claim) against this particular defendant. Such attacks are filed with the court and served personally or by mail to you or your counsel. If such attack is filed (usually called either a "demurrer" or a "motion to strike", and these two types of attacks are often filed concurrently), the court schedules a hearing date to occur some time within the next 25-60 days. You then have a certain number of business days to file/serve an opposition. The defendant then gets the opportunity to file a reply brief, and eventually, the hearing occurs to determine the merits of defendant's argument.
If defendant succeeds, the court almost always gives plaintiff/you another crack at the apple. This is known as "leave to amend" the complaint to allege sufficient facts or otherwise correct whatever is deemed wrong. Usually, you get 10-15 days to do so. If you do, in fact, file an "amended" complaint, defendant gets another 30+ days to respond (you may serve the amended complaint by mail in California).
If the defendant is not successful, the court usually requires that defendant file/serve an "Answer" to the complaint within 5-10 days of the hearing.
As you have likely surmised, the date between when you initially file your lawsuit/complaint and the date the defendant actually appears and answers your complaint can often be long and arduous. Indeed, the reason that cases often take 1 year or more to go through the litigation process is due to the procedural rights and obligations of the parties.
Clients often believe that the litigation process has specific time tables which must be adhered to. Thus, clients assume that once served, their opponents have an obligation to answer and then the court will set a trial date some time in the near future. As briefly noted above, however, this rationale is simply inaccurate. From initial filing date to the initial trial setting conference, expect to wait at least 75-90 days, and often, longer. And, from filing to trial often does, indeed, take 1 year, though 3-5 years is not unheard of, especially in complex cases with multiple parties (each defendant has the opportunity to attack the plaintiff's pleadings).
More to come!
Hope you find this useful!
For now, let's assume you've filed (or your attorney has), ... now what? Now, you must serve the defendant(s) with what is known as a "summons" and your complaint. The summons is a form that provides notice to the defendant of its immediate rights and obligations. The summons in California indicates that the defendant "has been sued by" you, and that defendant has 30 days from the date of personal service to file a formal response with the court and serve it on you/plaintiff or your counsel. Service of the response may be (and usually is) by mail, even if the defendant counter-sues you (known in California as a Cross-complaint). Service of the summons/complaint usually takes anywhere between 1-15 days from the date of the filing of the lawsuit, but it can take much longer, depending on the access to defendant, its whereabouts, and various other factors. (I'll have more on this in upcoming entries as well).
However, the defendant need not file an answer. Defendant has the right to object for numerous statutory reasons - such as, wrong person, improper jurisdiction, or your complaint fails to allege sufficient facts to state a cause of action (claim) against this particular defendant. Such attacks are filed with the court and served personally or by mail to you or your counsel. If such attack is filed (usually called either a "demurrer" or a "motion to strike", and these two types of attacks are often filed concurrently), the court schedules a hearing date to occur some time within the next 25-60 days. You then have a certain number of business days to file/serve an opposition. The defendant then gets the opportunity to file a reply brief, and eventually, the hearing occurs to determine the merits of defendant's argument.
If defendant succeeds, the court almost always gives plaintiff/you another crack at the apple. This is known as "leave to amend" the complaint to allege sufficient facts or otherwise correct whatever is deemed wrong. Usually, you get 10-15 days to do so. If you do, in fact, file an "amended" complaint, defendant gets another 30+ days to respond (you may serve the amended complaint by mail in California).
If the defendant is not successful, the court usually requires that defendant file/serve an "Answer" to the complaint within 5-10 days of the hearing.
As you have likely surmised, the date between when you initially file your lawsuit/complaint and the date the defendant actually appears and answers your complaint can often be long and arduous. Indeed, the reason that cases often take 1 year or more to go through the litigation process is due to the procedural rights and obligations of the parties.
Clients often believe that the litigation process has specific time tables which must be adhered to. Thus, clients assume that once served, their opponents have an obligation to answer and then the court will set a trial date some time in the near future. As briefly noted above, however, this rationale is simply inaccurate. From initial filing date to the initial trial setting conference, expect to wait at least 75-90 days, and often, longer. And, from filing to trial often does, indeed, take 1 year, though 3-5 years is not unheard of, especially in complex cases with multiple parties (each defendant has the opportunity to attack the plaintiff's pleadings).
More to come!
Hope you find this useful!
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