20 January

Civil Case Q & A

1. Q: What is a civil case?

A: The plaintiff files a complaint in a court of law against the defendant for infringing the rights of the plaintiff and asks for damages from the defendant. The filing of the complaint commences a Civil Action.

2. Q: Some common types of commercial civil actions are:

1) Breach of Contract

The plaintiff and defendant have entered into an agreement, and defendant fails to meet the obligations under the agreement. The contract may be either written or verbal. The breach of contract may be due to a failure to pay for either goods delivered or services rendered, or it may be due to a failure to provide goods on time, services agreed, goods without defects, etc. The court will order the party breaching the contract to pay for the losses. The damages should be equal to either the plaintiff ‘s actual losses incurred by the defendant’s breach of contract or the profits the plaintiff is supposed to make if the contract were not breached by the defendant, plus other litigation-related expenses and attorney’s fees if the contract stipulates that attorney’s fees incurred by the winner of the case be assumed by the loser of the case if either party breaches the contract, or if certain legal actions clearly stipulate that the attorney’s fees be paid by the loser of the suit.

2) Collection

A plaintiff files a lawsuit against a defendant for a delayed payment of goods delivered, a private or bank loan, credit card debts and any other debts, demanding the debtor to immediately pay off the principle and accrued interests.

3) Conversion

The plaintiff claims that the defendant has unlawfully taken possession of the plaintiff’s personal property. The plaintiff is suing for the return of the property and other losses, including all the profits the plaintiff is supposed to make during the unlawful possession by the defendant, the money supposed to collect if the similar goods are leased, attorney’s fees, litigation expenses, damage, etc.

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4) Fraud

The plaintiff contends that the defendant has done something wrong, said something untrue, failed to keep promises, disguised facts, or made any misrepresentations, either one of which makes the plaintiff believe the defendant and incur a loss. The plaintiff may ask for the financial losses, attorney’s fees, litigation costs, damages, etc.

5) Personal Injury and Property Damage

The plaintiff claims that the defendant caused the plaintiff’s injuries through negligence, suing the defendant for medical expenses, damages for suffering, financial losses, etc. The plaintiff claims that the defendant caused the plaintiff’s personal or real property through negligence, suing the defendant for all the losses

6) Unlawful Detainer

An Unlawful Detainer is a civil action in which a landlord/owner brings suit against a tenant to obtain a court order giving the holder of property the right to regain possession of the property from the tenant. Before the complaint is filed, the plaintiff must serve the tenant with a Notice to Pay Rent or Quit. If the tenant refuses to comply with the notice and does not either pay the rent or quit the premises, the plaintiff may then file a complaint of Unlawful Detainer.

3. Q: How to assign the Jurisdiction of courts?

1) Small Claims Courts hear matters whose the dollar amount in dispute does not exceed $5,000, taking place in Superior Courts.

2) Superior Courts (Limited Jurisdiction) hear matters whose dollar amount in dispute or value of the property does not exceed $25,000.

3) Superior Courts (General Jurisdiction) hear all other matters.

4. Q: Who can assist with civil cases?

A: Check newspapers or yellow pages under legal services or contact the State Bar for lawyer referral. Before retaining an attorney, you should seek legal advices from experienced attorneys familiar with your type of cases. You are not recommended to represent yourself in the court of law although it is an option. The laws are so complicated that the laymen have difficulties understanding them. Each step in preparing a case for a trial can be very technical and there

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are deadlines to which must be adhered. The court staffs are not allowed to give any legal advices or provide assistance regarding the meaning of any documents or preparation of any forms.

Do not use any unregistered paralegals to handle your case. It is a crime to assist someone without an authorization to practice law.

5. Q: Where do I file my complaint?

A: You may file a case in any following courthouse.

The judicial district where the defendant lived at the commencement of the action
The judicial district which the contract was entered into or performed in
The judicial district where the accident or injury occurred
The judicial district where the real property in dispute is located

6. Q: What documents does the plaintiff need to begin the case?

1) Judicial Counsel Forms, which are available at the Clerk’s Office or online;

2) Complaint: The complaint is a document which lists and describes the alleged offenses committed by the defendant, the effects of the offenses and the desired conditions for the offenses to be corrected (What is the defendant required to do? How much award is asked in damages?). Available at the Clerk’s Office and online are many uniform complaint forms designed for a Breach of Contract, debts collection, body injury, fraud, Unlawful Detainer, etc;

Civil Case Cover Sheet;

Civil Case Cover Sheet Addendum: This form is used in Los Angeles County;

Case Assignment Certificate: This form is used in the other counties.

Statement of Location: This form is used for Limited Jurisdiction to confirm that the case is filed at the proper courthouse; and
Summons: This form notifies a defendant that a lawsuit has been filed against him/her.

7. Q: How does the defendant be served with a summons?

A: There are three approaches to serving a summons, a complaint and court documents.

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Personal Service: A sheriff or private messenger who must not be the plaintiff serves the defendant in person at home or in the workplace.

Substitute Service: After failure to serve the defendant three times, a sheriff or private messenger may hand over the summons to the defendant‘s family member at home or coworker at the office, and then mail a copy of the summons to the defendant’s address.

Publication: If the above-mentioned approaches 1) and 2) fail and the defendant is unable to be located, with the approval from the court, the defendant may be served by Publication.

A Proof of Service must be signed by the deliverer and filed with the court.

8. Q: What can happen if the defendant does not answer a complaint?

A: After being served with the complaint mentioned above in Q7, unless with a written consent from the plaintiff or the court to postponing the case, the defendant must respond within 30 days for general civil actions other than Unlawful Detainer, which requires 5 days in written response. The plaintiff may request the court to enter a default and issue a Default Judgment, which is equivalent to a court judgment ordering that the defendant has lost the case.

9. Q: What are the defendant’s options to respond to a Complaint?

Demurrer: The defendant asserts that a response is not necessary because the plaintiff’s complaint contains a severe legal defect.

Motion to Strike: The defendant requests the court to remove the defected part from the Complaint, so only the other part without a defect needs to be answered.

Motion to Quash: The defendant requests the court to void the service of the summons and complaint. As a result, the court loses its jurisdiction over the summons and complaint, which need to be served again.

Answer: The defendant responds to the allegations contained within the complaint. Answering to the complaint, the defendant may admit, deny, or not acknowledge the veracity of the complaint and the facts of the defense.

10. Q: What can happen if the defendant does not show up for trial after answering the complaint, or if the defendant does not fulfill the obligations required by the law and the court?

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A: The first thing the defendant must do is to answer the complaint. Next, there are a number of things to do, with legal proceedings to follow. For instance, completing and submitting the Case Management Statement, attending several Case Management Conferences, responding all kinds of requests from the plaintiff for collecting evidence (refer to Q12 mentioned below), forwarding requests to the plaintiff for the collection of evidence, filling out and handing in Mediation Brief and Arbitration Briefs, attending Mediation and Arbitration hearings, attending settlement meetings required by the court, selecting jury, filling out and handing in Trial Briefs, appearing in the court, and fulfilling other plaintiff’s and defendant’s obligations required by the court. Failing to meet the above-mentioned obligations on schedule, the defendant will be either fined two to three hundred dollars or seriously deemed to forfeit an answer and loses the case. Therefore, the defendant should record all the matters and their respective deadlines. If absolutely necessary, it is important to attain an experienced attorney to help.

11. Q: After filing a compliant, what can happen if the plaintiff does not show up in the court or fulfill the obligations required by the court?

A: In fact, the laws are much stricter toward a plaintiff. Taking a preemptive complaint against the defendant, the plaintiff must actively fulfill all the same obligations required by the court and assumed by the defendant; moreover, the plaintiff must complete all the obligations at the same time as or even earlier than the defendant does. Without fulfilling the required obligations, the plaintiff will also be sanctioned by the court. In the worst-case scenario, the case will be dismissed because of the Failure to Prosecute. In the future, the same case cannot be brought to court again. For instance, the plaintiff brings a lawsuit against the defendant for the debts of $50,000. In the event that the case is dismissed, the plaintiff cannot sue the defendant for the repayment of the same debts. But if later on the same defendant owes the plaintiff another $30,000 or the plaintiff is injured in a car accident caused by the same defendant, the plaintiff has the legal right to sue the defendant for $30,000 or the losses incurred by the car accident.

12. Q: What are the methods and procedure to collect evidence?

A: Both the plaintiff and defendant have the same legal right to request the opponent to do the following so that either party can collect more evidence to bring advantages to one’s own case.

1) Interrogatories: A party has the opponent answer a series of questions, discovering favorable information.

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2) Request of Production of Documents: Request for the production of documents or review the copies of documents, from which a party may discover any favorable written documents.

3) Request for Admission: Request the opponent for the admission of certain facts so as to narrow down the scope of argument. The admitted facts do not require other evidence, such as written documents, to prove.

4) Deposition: When taking a deposition, the opponent is asked to swear to speak the truth in front of a Court Reporter and answer all the questions relating to the case, which may take from half a day to many days. The deposition taken on the current day is most effective. Not only can a party acquire useful information but also request the opponent to furnish with certain written documents. Most either complicated or unlimited cases will adopt this method. Expensive is the shortcoming of this method, which costs $1,000 to $2,000 per day for attorney’s fees, plus more than $5 for each page of the transcript. The deposition will be used later in the court. Please note that the above-mentioned method of Deposition must be adopted if you want to win the case, unless you already have substantial evidence on your hand. If the deposition is not taken before the court day, any judge will not allow either party to collect any evidence in the court even though cross-examining the opponent is allowed in the court.

13. Q: How can the judgment creditor collect on the judgment, additional costs and accrued interests incurred after judgment?

A: Not knowing what assets the judgment debtor actually owns, the judgment creditor can file an Application and Order for Appearance of a Judgment Debtor (ORAP), mandating the judgment debtor to appear in court to answer questions regarding property or debts, such as real estate, business, deposited cash, income, stocks and bonds, car, and jewelry. Where are the assets? If not telling the truth, the defendant will be sentenced under the penalty of perjury, which is a serious crime. The judgment creditor can also request the judgment debtor to bring for inspection a title deed, stocks, tax returns, pay stubs, and bank statements. Either failing to bring the required documents or refusing to answer questions, the judgment debtor can be imposed a fine requested by the plaintiff to the court. If the judgment debtor even fails to show up for an ORAP hearing, the judgment creditor may request the court to issue a Bench Warrant, with which any sheriff of the county can arrest and take the judgment debtor to the court when coming across the judgment debtor. Therefore, the judgment debtor should take the ORAP seriously and do not ignore it. Otherwise, when stopped by a police officer for a traffic violation, the judgment debtor will be treated as a criminal and put in jail. After having known the assets owned by the judgment debtor, the judgment credit takes either one or all of the following options to enforce the judgment.

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Record the Abstract of Judgment with the County recorder and get a Judgment Lien, which imposes 10% interest per year on any real estate partially or fully owned by the judgment debtor. The Judgment Lien does not void just because the real estate is either transferred or sold to someone else. Once the real estate is either sold or refinanced, the judgment creditor will collect from escrow the judgment amount, plus annual 10% interest and miscellaneous expenses incurred in the execution of the judgment. For example, a money judgment awarded three years ago was $100,000. The accumulated amount now has become $132,000 ($100,000 + $10,000 + $10,000 + $10,000 + $2,000 = $132,000)! The miscellaneous expenses include fees for Writes of Execution and Abstracts of Judgment and sheriff’s services. The plaintiff must fill out a form of Memorandum of Costs after Judgment to collect those expenses.

Go to the court to get a Writ of Execution authorizing a sheriff to carry out the court’ decision to collect a money judgment, including levying the judgment debtor’s bank account

Garnish 25% of the judgment debtor’s wage.

Take away money from accounts receivable after the company of the judgment debtor has gone into receivership.

Record the Abstract of Judgment with the Secretary of State and get a Judgment Lien imposed on the judgment debtor’s assets such as business and cars.

14. Q: What needs to be done after the judgment debtor makes payment?

A: If the judgment debtor has made full payment of a judgment, the judgment creditor is required to file a Full Satisfaction of Judgment with the court to remove the lien from the debtor’s property; otherwise, credit bureaus will continue to report the outstanding judgment. On the other hand, upon payment of any portion of a judgment, a Partial Satisfaction of Judgment must be filed with the court.

15. Q: What can be done if the judgment debtor does not agree with the judgment?

A: There are three options the judgment debtor may choose to take as follows:

Motion to Vacate: The defendant may retain an attorney to file a Motion to Vacate, requesting the court to vacate and void the default judgment if

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there is a strong ground to convince the judge why the defendant did not file an answer in 30 days (or the extended period of time) after being served with the complaint. For instance, the failure to answer the complaint is due to no service of the complaint, unconsciousness, hospitalization, absence because of in foreign country, or attorney’s negligence. Before the plaintiff files a Motion to Vacate, the defendant must have been notified or should have known the Default Judgment. The Motion to Vacate must be filed within 180 days from the date when the Default Judgment is entered; otherwise, the defendant is deemed to forfeit the legal right of Motion to Vacate. Once the court vacates the Default Judgment, the whole litigation proceedings will start over again. The plaintiff needs to serve the defendant again with a complaint, and then the defendant has to answer in 30 days.

Appeal: Disagreeing with the Judgment, the defendant may file an Appeal in writing to an upper-level court or the appellate court within 30 days of receipt of a Notice of Entry of Judgment. First, please note that an appeal is not a re-trial. The appellate court will not reconsider the existing testimony and evidence, and it only decides whether the original judgment adhered to legal proceedings. Do not file an appeal simple because a party thinks that the judge or the jury should have believed the party and should have disbelieved the opponent, for the appellate court will not re-weight the existing evidence to re-decide a case. Second, filing a Notice of Appeal does not stop the enforcement of a judgment. During the appeal, the plaintiff may attempt to collect money or remove a tenant even though the appeal has been filed.

Motion for a New Trial: Under certain circumstances, motion for a new trial can be made. This motion must be filed within 15 days from the date of receipt of the notice of entry of judgment. The court will then set for the motion a hearing date, which must be within 60 days from the date of entry of judgment.