Answering Civil Answering Civil Complaints in a Workshop Complaints in a Workshop

SettingSetting

Eric NakanoEric Nakano

Voluntary Legal Services Voluntary Legal Services Program of Northern Program of Northern

CaliforniaCalifornia

Why have a workshop?Why have a workshop?

Approximately 90% of customers are involved Approximately 90% of customers are involved in a debt collection/breach of contract case.in a debt collection/breach of contract case.

Answers to these cases are relatively simple, Answers to these cases are relatively simple, making a workshop appropriate.making a workshop appropriate.

Individually, an Answer takes about one hour, Individually, an Answer takes about one hour, including a Fee Waiver and Proof of Service.including a Fee Waiver and Proof of Service.

Most Answer- Contract workshops take Most Answer- Contract workshops take between two to three hours, depending on the between two to three hours, depending on the participants.participants.

Workshop StepsWorkshop Steps

TriageTriage Overview of ProcessOverview of Process Completion of FormsCompletion of Forms Review of FormsReview of Forms Proof of Service/ConformingProof of Service/Conforming

Triage- GoalsTriage- Goals

Identify appropriate cases for the Identify appropriate cases for the workshop.workshop.

Identify appropriate customers for Identify appropriate customers for the workshop.the workshop.

Provide initial information and Provide initial information and instructions prior to the workshop.instructions prior to the workshop.

Identifying Appropriate Identifying Appropriate CasesCases

Well-plead complaints using the Judicial Well-plead complaints using the Judicial Council Complaint- Contract, form with Council Complaint- Contract, form with attached causes of action for breach of attached causes of action for breach of contract, common counts, and/or fraud.contract, common counts, and/or fraud.

Well-plead complaints on pleading Well-plead complaints on pleading paper with causes of action for breach paper with causes of action for breach of contract, one or more of the of contract, one or more of the common counts, and/or fraud.common counts, and/or fraud.

Inappropriate CasesInappropriate Cases

Complaints using the Complaint- Complaints using the Complaint- Personal Injury, Property Damage, Personal Injury, Property Damage, Wrongful Death form.Wrongful Death form.

Complaints arising from tort, any Complaints arising from tort, any other non-contract case, as well as other non-contract case, as well as unusually complicated cases.unusually complicated cases.

Improperly plead pleading, in crayon, Improperly plead pleading, in crayon, etc.etc.

Inappropriate CustomersInappropriate Customers

The workshop works best in only one The workshop works best in only one language at a time. Different languages language at a time. Different languages should be assisted in alternate workshops should be assisted in alternate workshops or individually.or individually.

Corporations, LLC’s, Partnerships, and Corporations, LLC’s, Partnerships, and other entities cannot file In Pro Per.other entities cannot file In Pro Per.

Persons who cannot perform simple Persons who cannot perform simple writing/typing, or follow moderately writing/typing, or follow moderately detailed instructions in a workshop setting.detailed instructions in a workshop setting.

Is the Complaint Verified?Is the Complaint Verified?

Is there a verification after the end of the Is there a verification after the end of the Complaint? (Statement declaring that the Complaint? (Statement declaring that the allegations in the Complaint are true under allegations in the Complaint are true under penalty of perjury)penalty of perjury)

This is different from a CCP This is different from a CCP §395 §395 Declaration of Venue.Declaration of Venue.

If verified, the customer should mark each If verified, the customer should mark each paragraph in the Complaint as paragraph in the Complaint as True/False/Unsure (T/F/?) while waiting.True/False/Unsure (T/F/?) while waiting.

Overview of ProcessOverview of Process

A Lawsuit is like a A Lawsuit is like a Football Game.Football Game.

At the end of the At the end of the workshop and workshop and filing, the customer filing, the customer will finish the steps will finish the steps in the second box in the second box from the top.from the top.

The first decision The first decision will be whether to will be whether to file an Answer.file an Answer.

The First Difficult Choice: The First Difficult Choice: Whether to AnswerWhether to Answer

Consequences of Doing Nothing- Consequences of Doing Nothing- Default and JudgmentDefault and Judgment

Consequences of Answering-Consequences of Answering- Defendant commits to participate in the Defendant commits to participate in the

casecase Costs and attorney fees likely to increase.Costs and attorney fees likely to increase. Interest at contract rate alleged potentially Interest at contract rate alleged potentially

accrues longer until judgment.accrues longer until judgment. Case remains open longer, and parties may Case remains open longer, and parties may

use discovery process.use discovery process.

The Answer- Contract FormThe Answer- Contract Form

The Caption-The Caption- Useful to have Useful to have

customers looking customers looking at the Complaint at the Complaint when they fill this when they fill this out. If they are out. If they are looking at the looking at the Summons, the Summons, the Plaintiff and Plaintiff and Defendant tend to Defendant tend to get reversed.get reversed.

General DenialsGeneral Denials

If the Complaint is If the Complaint is notnot verified (or is under verified (or is under $1,000) general $1,000) general denial can be used.denial can be used.

Some customers Some customers panic when they read panic when they read the general denial the general denial language if it’s not language if it’s not explained during the explained during the workshop.workshop.

Specific DenialsSpecific Denials

If Complaint is If Complaint is verified, specific verified, specific denials will be denials will be required.required.

Denials are listed by Denials are listed by paragraph.paragraph.

Anticipate specific Anticipate specific questions about the questions about the Complaint language.Complaint language.

To Speed Things Up…To Speed Things Up…

Have your forms pre-check Have your forms pre-check paragraph 4, and the “Continued on paragraph 4, and the “Continued on Attachment 4” checkbox.Attachment 4” checkbox.

Briefly explain that the boxes are Briefly explain that the boxes are used for defenses, and that you will used for defenses, and that you will write these on the following pages, write these on the following pages, but continue to the bottom for the but continue to the bottom for the prayer for relief and signature.prayer for relief and signature.

Affirmative DefensesAffirmative Defenses

Defenses not raised in the Answer are Defenses not raised in the Answer are waived.waived.

Burden is on the Defendant to prove Burden is on the Defendant to prove affirmative defenses.affirmative defenses.

The Santa Clara Superior Court Self-The Santa Clara Superior Court Self-Service Center developed a checkbox Service Center developed a checkbox affirmative defense list, which we affirmative defense list, which we have very slightly modified and used. have very slightly modified and used.

Known Weaknesses of Known Weaknesses of Checkbox Affirmative Checkbox Affirmative

DefensesDefenses Affirmative defenses must be plead Affirmative defenses must be plead

with specificity, just like the Complaint.with specificity, just like the Complaint. The checkbox form is therefore open to The checkbox form is therefore open to

demurrer to the Answer.demurrer to the Answer. This weakness rarely exploited (so far, This weakness rarely exploited (so far,

never, at our center), in large part never, at our center), in large part because the time to demurrer is short, because the time to demurrer is short, and the remedy unsatisfactory.and the remedy unsatisfactory.

Explaining Affirmative Defenses

Checkbox forms do a good job, but examples as to each of the defenses are important for customer understanding: Distinction between total and partial

defenses. Inability to pay is not a defense. Anticipate additional questions by

customers to clarify each defense.

Helping to Identify Additional Helping to Identify Additional Affirmative DefensesAffirmative Defenses

““Other than the defenses that we just Other than the defenses that we just talked about, can you think of any other talked about, can you think of any other reason why the Court shouldn’t enter a reason why the Court shouldn’t enter a judgment saying that you owe what the judgment saying that you owe what the Plaintiff says you owe?”Plaintiff says you owe?”

Typically, there aren’t any, however this Typically, there aren’t any, however this question may elicit facts that can be re-question may elicit facts that can be re-stated to the person to allow them to stated to the person to allow them to identify one of the previous affirmative identify one of the previous affirmative defenses. Occasionally, an additional defenses. Occasionally, an additional affirmative defense is described.affirmative defense is described.

Most Common Affirmative Most Common Affirmative Defenses We SeeDefenses We See

Running of the Statute of Limitations Running of the Statute of Limitations and/or Lachesand/or Laches

Lack of PrivityLack of Privity Unjust EnrichmentUnjust Enrichment Failure to Mitigate DamagesFailure to Mitigate Damages Quantum MeruitQuantum Meruit

Form ReviewForm Review

Add verification if Complaint is verified.Add verification if Complaint is verified. Be sure the Plaintiff and response to is Be sure the Plaintiff and response to is

to the Plaintiff, not the law firm.to the Plaintiff, not the law firm. Check that the case number is correct.Check that the case number is correct. Check that the person answering is a Check that the person answering is a

party to the lawsuit. Corporations, party to the lawsuit. Corporations, LLC’s, Partnerships, and other entities LLC’s, Partnerships, and other entities cannot file In Pro Percannot file In Pro Per

Completion of WorkshopCompletion of Workshop

Talk briefly about discovery.Talk briefly about discovery. Show and discuss any additional Show and discuss any additional

handouts.handouts. Describe the Court’s filing procedure.Describe the Court’s filing procedure.

Service and DuplicationService and Duplication

Providing Proof of Service by mail, and Providing Proof of Service by mail, and duplication and conforming copies for duplication and conforming copies for filing is recommended.filing is recommended.

When this service was not provided, When this service was not provided, few self-represented litigants were able few self-represented litigants were able to serve and file on the first attempt.to serve and file on the first attempt.

Each court varies slightly on its filing Each court varies slightly on its filing procedure.procedure.