Actions in Orange County Superior Court -- Tips, Information and Urban Legends
I see other attorneys and people representing themselves make the same mistakes over and over in Orange County Superior Court. I therefore present this list of frequently asked questions, setting forth information you need and tips on how to avoid the pitfalls of litigation in general and Orange County Superior Court in particular.
Some of these questions may seem surprising, but it is to be expected that someone who has never had any involvement with the court may have no clue how things work.
I need to file a complaint in Orange County Superior Court, but can't afford the filing fee. Can I get it waived?
Yes, and the Orange County Superior Court is fairly generous in granting such requests, if your financial circumstances so warrant. Here is the packet you need to complete.
I want to include a claim for punitive damages in my complaint. How much should I ask for?
Many amateur attorneys used to play the game of asking for $10 billion as punitive damages, thinking the amount was so shocking that it would somehow intimidate the other side. Sometimes it would even generate press coverage. After all, someone being sued for $10 billion in Orange County Superior Court must have done something really bad, right? In response, the California Legislature passed a law making it improper to allege an amount of punitive damages. You must still ask for punitive damages in your complaint if there is a basis for recovery, but you may not set forth an amount. As satisfying as you might find it to ask for $100 trillion in punitive damages to show how outrageous the conduct of the defendant, all that will happen is the court will strike the allegation and possibly sanction you.
By the way, you cannot recover punitive damages in a breach of contract action.
OK, if I can't specify how much in punitive damages, can I set forth the damages I suffered?
Actually, you are required to set forth the damages, as least in general terms, in order to determine the proper court. But be careful, and don't inflate your claims. Let's take an example. Say you loaned someone $100,000 to invest in a new business, but that person used the money to add an addition to their home. You are only out-of-pocket $100,000 and some interest, but you decide you are going to sue for fraud and seek $1 million dollars in damages, which you put in the complaint, thinking it will scare the heck out of the other side.
Now you go to court, and the jury agrees with you 100% that you should get your $100,000 back, but awards you nothing on the fraud claim. Who won the case? You recovered $100,000, but you were seeking one million according to your complaint. Thus, the defendant proved that he did not owe you $900,000 of the amount you were claiming. The court may find the defendant prevailed on the action, and make you pay the other side's costs. As set forth more fully below, the defendant's attorney may then turn around and sue you for malicious prosecution since you lost on the fraud claim. This can all be avoided by pleading your damages properly.
Should I sue everyone that might be responsible for my damages? Can't I just dismiss if I'm wrong?
Another common mistake made by people representing themselves, as well as amateur attorneys, is to sue everyone they can think of, and throw in every conceivable cause of action. The thought is that even if someone is named as a defendant that shouldn't have been, the action can always be dismissed as to that defendant. Unscrupulous attorneys will try to settle with the improperly named defendants, offering to dismiss the action for, say, five or ten thousand dollars. This is common in construction defect cases, where the plaintiff's attorney will name every subcontractor. Even if the claimed defect is soil subsidence, they'll name the guy that installed the air conditioning.
Naming too many defendants and "over-pleading" (listing too many claims) are both bad strategies if the attorney on the other side knows what he or she is doing. For example, let's assume my client is a construction corporation that bought some building materials from you, but due to a downturn in the housing market is unable to pay you when due. You go to an attorney who properly sues the corporation, but then thinking it will apply a little more pressure, he also sues my client as in individual, even though it was the corporation that bought the materials. For even more pressure, the attorney also sues for fraud, not just breach of contract. By suing for fraud, you could recover punitive damages, so that make the action much scarier for my client, or so your attorney thinks.
Big, big mistake. I will immediately bring a motion to dispose of the action. Once filed, any dismissal will be viewed as a response to my motion, meaning that my client has prevailed on the merits. Even if I allow the case to go to trial, assuming there is no defense to the money owed, you will prevail only on the breach of contract action against the corporation. My individual client, on the other hand, will prevail on the breach of contract cause of action, and he and the corporation will both prevail on the fraud cause of action. To prove fraud, you must show that the defendants had no intention to perform. Failing to pay because of a downturn in the market does not evidence an intent to defraud, only an inability to pay.
Even though you won on one cause of action, my clients prevailed on three. That makes them the prevailing parties. They will recover all attorney fees and costs, assuming there was a basis for attorney fees, and that total may well exceed the amount you recover for breach of contract. If there is no basis to recover attorney fees directly, no problem, we then just sue for malicious prosecution and recover them that way. All because your attorney named too many defendants and causes of action.
It's a balancing act when you draft a complaint, because you do want to allege all appropriate causes of action in case one gets thrown out, against all the appropriate defendants, but as you can see it can be perilous to over-plead. Be sure to consult a competent attorney.
Should I take depositions of every possible witness in the case?
In litigation there is always more that can be done in a case. That obscure witness that most likely knows nothing about the facts of the case can nonetheless be deposed. If discovery was propounded yesterday, more can be propounded today. Motions can be brought, injunctions can be sought. Every adverse ruling by the trial court can be appealed.
That is the way some attorneys handle a case, doing everything that can be done with no regard for the cost to the client. However, a good attorney is constantly performing a cost/benefit analysis. Depositions are one the the most costly parts of litigation. You not only pay for the attorney's time, you must pay for the court reporter, who charges by the page. A day-long deposition can cost over $1,000 in reporter fees and another $3,000 in legal fees. You or your attorney must make judgment calls on who really needs to be deposed.
As a general rule, so long as the witness is available to talk to you and you know how they will testify, you should not take the deposition of a favorable witness unless you need to preserve their testimony (i.e., the witness is in poor health or may be unavailable for trial). You run the risk that the witness may change his or her testimony at trial, but this can be mitigated with a signed statement. If the witness changes their story, just show the statement.
Most attorneys will feel compelled to take the deposition of the opposing party, but even that is not always necessary. For instance, say you are suing on a promissory note loan that defendant failed to repay. You can find out by written discovery if defendant is contending the money is not owed, so what could the party possibly say at a deposition that is worth the cost?
I was served with a summons and complaint, and the summons says that I need to file an answer within 30 days. What does an answer look like? Is it something I can just pick up at the Orange County Superior Court?
You can get a form answer (called a General Denial) at the Orange County Superior Court, fill it out and file it, but that's usually not a good idea.
Here's how pleading works. The plaintiff is supposed to serve and file a complaint that sets forth sufficient facts so that you know what you are being sued for. The complaint sets the parameters for the action. If the complaint says you owe plaintiff money because you borrowed money and didn't pay it back, he can't spring on you at trial that you also stole money from him. The plaintiff is bound by the complaint.
And so it is with the answer. You must set forth the defenses you will rely on in defending against the complaint. If it's not in your answer, you may be barred from using that defense at trial. Wouldn't it be ashamed if you ended up paying money you did not owe, just because you left some magic words out of your answer? Remember, "the man who represents himself has a fool for a client."
I am owed money by the defendant, but I know he doesn't have any assets. Is there any point in suing him?
That is a personal decision depending on your circumstances, but here are some things to consider. That deadbeat defendant may not have anything now, but do you think his situation could change in the next 20 years? A judgment is good for 10 years, and can be renewed for another ten years. I find that the defendants who think they are judgment proof are the ones that either don't bother to show up to defend against the case or if they do, they don't fight very vigorously. You could end up with a judgment at very little time or expense. Then keep it in your safe, and every year or so, check to see what is going on with Mr. No Assets. There's no hurry. Your judgment earns interest at 10% annually. That's one of the best investments going. Once you receive a judgment, you can record what is called an Abstract of Judgment in any and all counties you think the defendant may now or some day in the future own real estate. That abstract puts a lien on the property even if you don't know what property he owns (assuming it is in his name, of course). During the latest housing boom, we collected a number of old debts for clients because the houses appreciated, the judgment debtors wanted to sell or refinance, and they had to come to us to get a release from the lien.
I just got served with a complaint. The case is set for Orange County Superior Court. Is there anything special I need to know or do?
Fortunately, the Superior Courts as now governed by a set of uniform rules. At one time, every courthouse had its own rules, as did each judge within the courthouse. It could be a nightmare trying to figure out the rules. Now there is a set of rules that apply to every court, and no jurisdiction is supposed to deviate from those rules without obtaining a waiver from the State. Courts and judges can, however, create there own rules so long as they don't conflict with one of the standard rules. And some judges just ignore the law and make their own rules anyway, so you still need to ask questions. Even if the judge doesn't have his or her own rules, he or she will have a way they like to handle things. Stop by the courtroom at some point when court is not in session, and ask the court clerk if the judge has any printed procedures.
The very first thing you should do upon receiving a complaint is to retain the services of Morris & Stone, of course. But if you are going it alone, the very first thing you must do is to determine which judge is assigned to the case. In the old days, you were not assigned a specific judge, and the courts would have some judges that listened to motions, others that considered preliminary injunctions, etc. Every time you went to court, you ended up with a different judge who knew nothing about your case from all the prior visits. It was a phenomenally bad system that only the government could come up with. Now you are assigned to a single judge. When the complaint is filed with the clerk at the courthouse, they actually spin a bingo ball kind of contraption with the judges names on the balls, and pull out a name, and stamp that name on the front of the complaint, right below the case number. This makes sure the assignment is completely random. Every unrepresented defendant that has ever gone to court is absolutely convinced that the other side some how managed to get his friend the judge assigned to the case, but it doesn't happen.
So, look at the complaint and see which judge is assigned to the case. We are blessed with a very good panel of judges at Orange County Superior Court as compared to other counties, but that doesn't mean there are not some clinkers. Attorneys that practice at that court know who the clinkers are, so you should call one and ask about your assigned judge. (714) 954-0700. If you got one that is not so great, you can file a simple form that rejects that judge (called "papering the judge"). You only have ten days to file the form. You can do so only once, so you always run the risk that you will just be assigned to another not so great judge. Unless the judge has a really bad reputation, it is best not to waste your one challenge. If your case ever goes to trial, the odds are that you will not be in front of the judge that has had your case from the beginning. The courts intentionally overbook the trial dates, because so many cases settle on the eve of trial (trial is a real motivator). When your case is assigned a trial date, there will typically be six or more other cases assigned to the same judge on the same day. Of those seven cases, four will be settled or continued. That leaves three cases ready to go to trial. The court clerk will call Master Calendar and ask for a courtroom. You and the other parties will then wait in the hall, sometimes for days, waiting for a courtroom. When you are finally assigned to a new judge, if you haven't used your challenge, you can still use it. "But I thought I only had ten days." You do -- that judge was just assigned.
I know that I am required to answer the complaint. Can I just send a letter to the judge explaining what happened?
An answer is a specific type of document, and a letter does not qualify. A judge is not permitted to read any letter that you send, because that would be what is called an ex parte communication. A judge is never supposed to talk to one side without the other side being present. A possible exception is Small Claims Court. Since that is designed to be layperson friendly, a judge will read the letter to see if you are asking for an extension.
When I received the summons and complaint, there was a form attached that said my trial date is in about four months. Can I just wait until then, show up and tell my side of the story?
That's not the trial date. For some reason, when some people receive a summons and complaint, their eyes glaze over and they can't or won't read the papers to see what they are supposed to do. The summons clearly states that you must file and serve an answer within 30 days (it's only FIVE days for some complaints, so read carefully). Inexplicably, that part never gets read. Instead, the defendant turns to what is called the notice of case management conference. That also explains that the defendant has only 30 days to answer, but the only thing the person sees is the date of the scheduled conference, which is generally set about four months after the action is filed. If you wait until that date, a judgment will have already been taken against you. And if you are not there to defend yourself, the case that involved only a few thousand dollars may have turned into a multi-million dollar judgment. See, for example, Oh What a Tangled Web We Weave.
I found a summons and complaint stuck under the windshield wiper of my car. I know that's not proper service, so do I need to file an answer?
Playing the, "I wasn't properly served" game is fraught with peril. If you receive a complaint, even if it was nailed to your door, never, ever ignore it.
There are a number of urban legends about service. Many people think it's like a game of tag, and that service is ineffective unless the process server gets the defendant to take it in his or her hand. That's a dangerous myth. It's not even true that the process server has to personally serve you. By law, the process server is supposed to try to personally serve you. If he does find you, he is supposed to tell you the nature of the documents (so that you won't think it's someone trying to hand you religious literature) and then deliver them to you. "Deliver" does not mean he needs to hand the documents to you. So, the process server will walk up to you and say, "Mr. Rogers, this is a summons and complaint." If you take the envelope from him, great; if not, he can drop it at your feet. He could even approach you in your car, make the statement, and stick it under your windshield wiper. So, yes, sticking it under your windshield wiper can be effective service.
If he makes three attempts to serve you, but can't find you at home or work, he can substitute serve you by giving it to someone at your home over the age of 18. He must then mail you a copy as well, to make sure you get it even if your no-good adult son that answered the door never gives it to you.
That process server will now prepare a proof of service, attesting to the fact that you were served. Thirty days later (40 days for substituted service), the opposing party will take a default against you, and then seek an unopposed judgment. In one case, a client came to us who had ignored a complaint that involved $35,000. With no opposition, the plaintiff was able to convince the court to award $1.2 million. We were able to get it reversed, but not without much effort.
We've had to teach this lesson even to other attorneys. We once had a case where the attorney for a corporation had foolishly listed herself as the agent for service of process. She thought she had pulled a fast one because she ran her practice out of her home, and her home was in a guarded community. She thought she was somehow immune from service, and when we served the guard at her community, she sent a letter stating that was not effective service and that she would sue for abuse of process if we took the corporation's default. Not only did we obtain the default judgment, an arrest warrant was issued against her for failing to appear at the judgment debtor's exam. You see, she did not know there was an obscure rule about serving people in guarded communities that permits the party to serve the party by giving the complaint to the guard. So what you're saying is, no one should ever be able to sue unless there is some independent evidence to support the case? For instance, if a woman is sexually molested in an elevator, she just has to take it because it would just be her word against the attacker's. Fortuneately, that is not how the law works.
If you are improperly served, don't ignore it. If it makes you feel better, go to court and fight the service. You'll still be served, probably in the hallway as you leave, but you'll have all that satisfaction that is gained from spending hours arguing the point. Judges in the Orange County Superior Court are more interested in whether there was constructive notice as opposed to worrying about the technical requirements of service. You or your attorney will look foolish when you stand in front of the judge and proclaim, "your honor, I was never properly served with the complaint that . . . I'm . . . um . . . holding . . . here in my hand." It's usually better and cheaper to just answer the complaint.
I'm being sued, but the entire case is just his word against mine. There's no way he can win if he has no evidence, correct?
If someone sues you and it is just your word against their's, then at trial he or she will take the stand and testify, and you will take the stand and testify, and the judge will decide whom to believe. True, the plaintiff has the burden to prove the case, but the burden is to show that it is more probable than not that the facts occurred as the plaintiff claims (not "beyond a reasonable doubt" like you have in criminal cases). A case can often be determined from the circumstances. Someone gives you $1000 as a gift, and later claims that it was a loan, suing you to get it back. If the money came on your birthday, and there is a history of such generous gifts, then the court will probably find in your favor. If the money was delivered right when your car was about to be repossessed, and there is no history of the plaintiff ever being so generous in the past, then you will probably lose. See how it works? Simple common sense, even though it is just one person's word against another's.
The other side lied during the trial, and as a result the judge entered a judgment against me. Can I sue for perjury or defamation because of the lies?
You or your attorney should have assumed that the other side would lie and prepared your case in anticipation of that fact. And if you testified but the judge chose to believe the liar on the other side, what does that say about your perceived credibility? For whatever reason, the judge did not believe you, so why would a new trial, where you again claim that the other side is lying, come out any differently?
Anything said in court is absolutely privileged, meaning that you can't sue. (See Civil Code Section 47.) Your remedy for a bad judgment is to appeal or bring a motion for a new trial. If parties could start new actions to address perceived grievances from other actions, the process would never end.
If you can convince the District Attorney that a witness lied on the stand, he or she can be criminally prosecuted for perjury. In the more than 20 years I've been practicing, I've seen that happen . . . never. But that doesn't mean that the system doesn't work. It's called an adversarial system for a reason. And if your case is presented properly, truth will prevail over lies.
How much can I sue for in each court?
In Orange County Superior Court, you have four basic ranges that dictate where you will file a civil action. Small Claims Court, a part of the Superior Court, handles claims up to $7,500. You can also sue in what is called limited jurisdiction Superior Court for any amount from $0 to $25,000. These were called Municipal Courts until a few years ago, when they were consolidated into the Superior Courts. Claims for $10,000 or less are handled a little differently, but by the same courts. Generally if the claim is less than $7,500 you would want to take advantage of the faster and cheaper Small Claims Court, but there are times when you are not permitted to file your action there, such as when you have filed more the the number of claims you are permitted in a year, or when you want to be represented by an attorney (you cannot be represented in Small Claims Court). Claims of more than $25,000 are filed in Orange County Superior Court as "unlimited." Perfectly clear? Litigation is never easy.
Web site of the Orange County Superior Court. Orange County Superior Court Forms.
