Drafting Answers (CA)

Good reference on drafting a proper answer is contained in :Rutter: Civil Procedure Before Trial Ch. 6 pp 103-130. Find what the Code of Civil Procedure says clicking  here.
An answer is a response to a cause of action complaint. It has the function of  really delineating what the issues for the suit are (It follows every paragraph of the complaint) and it also  brings forth new matter in the shape of affirmative defenses.
The Defendant has three options: deny, admit, deny partially and admit partially.  Defendant can also object along with the denial/admission.

In any case, 30 calendar days (including holidays and weekends) is all you have to answer the complaint or else the court can enter a judgment against you for Default.  An answer is not the only thing you can file, a Demurrer, a general Denial and several types of Motions can also be filed instead of an answer depending on the nature of the complaint.

An answer has several parts:
A first page (not unlike the complaint except a case number will have been assigned and a judge will have been assigned)
A BODY of the answer, divided in two parts.

• Responses to the complaint by general denial or specific responses to allegations in the complaint. 
• Affirmative defenses which constitute the new matter.

A PRAYER or demand for relied. In answers, the prayer doesn't go into many specific, just asks to be relieved of the action and costs of the suit.
A SUBSCRIPTION with the signature of the attorney of the Defendant.
A VERIFICATION only if the complaint was also verified.


Use 28 line pleading  paper, 12 pt. Arial or Times New Roman type  with spacing at 22.75pts. but check the local court rules.

On the first page: 
Top right: Name, office, address and phone of the attorney along with State Bar No. and capacity: Atty for the Defendant:

Law Offices of D. Murray &  C. Pell
Don Murray, Esq. (S.B.N. 123456)
66 Vicious Cl. Suite 16
Slapville, CA 91101
Attorney for the Defendant.

Name of the Court in Bold, All-Caps and centered,  never above line 8. e.g.

 SUPERIOR COURT OF THE STATE OF CALIFORNIA.

COUNTY OF LOS ANGELES. 

Name the parties , AND their capacity. If one party is a minor, say so and add guardian ad litem's name as well.  e.g." Nickldime, a business incorporated in California", "Suitville, A municipal corporation", "an individual", etc...Do not forget to add the DOES 1 to 20 on the Defendant side.

Include case number.

Include the nature of the case. e.g.   ANSWER TO COMPLAINT

Include Judge & Department : e.g Assigned to the Hon. Lisa Green, Dept 12

Always add a footer in all caps at 10 pts.  with the nature of the case matching the nature of the case in the Caption. 

Body of the answer:
1. BODY:
Unless you are issuing a general denial which basically answers the complaint as a whole and blankets every single allegation , the first responses address the General Allegation in the complaint.
Some considerations to take into account:
When denying, 

• You can NOT use a general denial when complaint is verified. This requires the answers to be verified as well. 
• An answer that addresses every specif allegation requires and admission or denial to EVERY specific allegation in the complaint. Anything you miss will be deemed admitted. Even the complaints by incorporation need an answer: e.g.  "Answering §6, D. realleges and incorporates by reference the admissions, allegations and denials in §§ 1 through 5 of this answer."
•  Therefore,responses should be distributed in  numbered paragraphs that MIRROR the numbering in  the complaint.
• If a paragraph in the complaint includes several allegations, take pains to address each one of them.
• A response may be made to reference the allegation by number only. e.g. "Answering to §5, defendant denies the allegations in this paragraph."
• You may admit or deny an entire paragraph but you may also admit in part and deny in part.Be careful. (more explanation is necessary, see below.) *
• A response is necessary to each incorporation by reference in the complaint. 
• Denials on lack of information and belief are acceptable. e.g: "Defendant  lacks information or belief, and therefore denies each and every allegation contained in §6 of ...."
• Denials and admission on information and belief are acceptable.  

 *Cautions: 
The negative pregnant danger. 
                   A denial that quotes the language in the complaint can become an admission. How?
Look at this answer: 

"Defendant denies that the Plaintiff suffered losses of $3,000 in his store" 

This answer admits the losses might have been for any other amount.

"Defendant denies that he struck Plaintiff with a baseball bat."

This answer admits the possibility of another type of instrument or means of injury. The denial is pregnant with admission.

Solution: When denying, Do NOT quote.
e.g.
The Defendant admits (quote exact language of the complaint) but denies any other allegation contained in paragraph 6."

The conjunctive denial danger. 
Denying several allegations  from the complaint  using AND instead of OR. AND assumes you are denying the combination of all allegations, OR assumes you are denying each allegation separately.

Bad:    "Defendant denies that he owned the subject automobile and that he leased the trailer."
Better: "Defendant denies that he owned the automobile or that he leased the trailer" 
Best:    "Defendant denies all allegations contained....


 2. AFFIRMATIVE DEFENSES.

The Body of the answers addresses the complaint allegations. The Affirmative defenses do NOT. Instead, they assert defenses, new facts, that the Defense alleges and that shield the Plaintiff.
For example, in a  breach of contract case, an affirmative defense could be fraud. In a negligence tort case, it could be  comparative negligence.

How do you present these affirmative defenses.

• First, make sure to label them up front. AFFIRMATIVE DEFENSES.  
• List and number  each defense separately and with a caption. Example:

 THIRD AFFIRMATIVE DEFENSE TO SECOND CAUSE OF ACTION. 

Failure to Mitigate Damages. 

20. As a THIRD AFFIRMATIVE DEFENSE to the second cause of action alleged in the complaint, Defendant alleges that Plaintiff failed to mitigate his damages..

• Allege the essential facts for each defense you draft. 
• The Plaintiff does NOT need to respond to these A.DD.

Prayer.
A prayer for relief is not compulsory but it can be added.
It cannot request relief as in the case of the complaint. If such relief is requested, a cross-complaint is the appropriate vehicle for that.
e.g.
WHEREFORE, Defendant prays fro Judgement and relief as follows: 
That Plaintiff take nothing by this action and that Defendant be awarded costs and other just relief.


Subscription and Verification.

• Signature of the Defense attorney. 
• Only need verification if the Complaint is verified. Most complaints aren't verified. Considering the burden this would place on the Defendant, isn't it strange that they are not? Keep in mind some causes of actions require verified complaints (some family law issues  and unlawful detainer for example). Verified complaints are made under oath so they require a lot more scrutiny, they require sworn answers (which leave little room for answers based on belief or inaccurate and can open the Defendant to further causes of action) so they are not as common as one might think.

"One tired cricket" by Jose L. De Juan on Ipad using a free animation app.

 JUDICIAL COUNCIL FORMS may be used in actions based on personal injury, property damage, wrongful death, breach of contract, fraud or unlawful detainer. CCP §42512, CRC 982.1

Calendaring, backward, forward and all around.

So I had a test at Pasadena City College and one of the exercises concerned the all important fact that paralegals need to worship the calendar. I didn't do well at the calendaring section of the test. Part of the trouble was that the teacher didn't really illustrate with exercises the nitty-gritty aspects of calculating dates  -all the while emphasizing how essential those skills are- and also, I'm just "not good" with dates. Hell, I forget my own birthday until mu mother calls.

So as I usually do with everything I am not good at, I start chewing at it until is mush. What this means is a new blog entry.  Again, feel free to chime in if you see any errors or want to add stuff.

Common errors in calendaring that can lead to malpractice:

1) Using an old rule to calculate dates.
2) Failing to add or remove days based on service method.
3) Counting court days instead of calendar days and viceversa. 
4) Simple omission of important statutory dates or miscalculation.

There are some overall precautions to take regardless of the issue:

1) Always be aware of *current* calendar rules.
2) The calendar rules are spelled out in several different Codes.
3) Always account for every date, even if it seems irrelevant. Like when you received a letter, an email, a document...everything must have a date attached to it. Do no procrastinate on that.
4) Calendaring calculators are great but a paralegal must know how to calculate the dates without them.
5) A paralegal must be able t clearly discern what are the "trigger "events. These are the documents and dates that generate a set of dates that need to be tracked once they materialize.

Where are these rules?
 By "these rules" we mean the rules defined by statute. Many calendar dates are  your own., self-imposed or variable. The dates we are concerned about here are the ones in the "books"
As mentioned above, they are dispersed in many places. Many of the dates you seek will depend on what type of law you practice. A good place to look is the Code of Civil Procedure, duh. But there are others. The California Rules of Court, The Evidence Code, The California Government Code and the Local Court Rules could come in handy.

Do not be late. It could lead to malpractice.

Example 1) We want to know about dates related to the filing of motions. One place we can look for these is the California Rules of Court Title 3. Civil Rules. Rule 3.1300  specifies the following: "Unless otherwise ordered or specifically provided by law, all moving and supporting papers must be served and filed in accordance with Code of Civil Procedure section 1005."   Ah, so it is referring us to the C.C.P.  Under Section 1005, subdivision (b) we read that all motion papers should be files at least 16  court days before the hearing. If the notice is served by mail within California we can increase that period by 5 calendar days. Opposition to the motion must be filed within 9 court days and reply papers require 5 court days.

It is so easy to miss the "court" and "calendar" distinction in those dates!

So what's the difference between a court day and a calendar day? 

A calendar day is exactly that, a rotation of the earth. Holidays, Weekends, the day your cat dies...all calendar days.
A court day is a day when the court is open. So Saturdays and Sundays are not court days. Neither are statewide holidays.

What is a trigger event?

A "trigger" event is an occurrence that starts the timer so to speak. Any action or inaction  in response to it is now considered a legally time sensitive mater. It could be anything from filing a complaint to being served with a document. A skillful paralegal should be able to identify what kind of deadlines a trigger event unleashes.  This sounds kind of difficult actually. There is software that can help but the more acquainted you are with procedural law, the better.

Example: You are served with a summons. That event "triggers" the thirty days you have to respond. You file a motion, your opposing counsel has 9 days before trial to oppose it. I know, lame. Can someone give me other better examples?

So how do you count?
* Exclude the day of the triggering event.
* Count every day after that including the last day.
* For court days, if the last day falls on a Saturday, Sunday or court Holiday, count to the next court day.

Counting backwards and forward. 

It is useful to count backwards when the dates you  are calculating are calculated around an important future event. In this case the "trigger" is in the future and is usually the trial date. So if the rule states that you need to stop discovery (cut-offf) 30 days before trial, you cout backwards from the trial date to find out your deadline to finish discovery.

It is useful to count froward when you have "x days" to do something after the trigger event.  If you receive  a subpoena, you can object within 14 days of receiving the proof of service. You start counting the day after the proof of service  and you count froward.

I hope in my next entry to find good examples of actual calculations. Feel free to send me or point me to some.

Quick cloud-based legal software reviews.