details re filing complaint - Los Angeles Superior Ct - Unlimited Division

[tranquility]

I don't want to reread the thread in detail, but, did you submit a "verified" complaint?

 

[rmknox]

status report
...
by the way - I screwed up - this is an unlimited division case and I believe I should have "verified" it - which i didn't - in which case he would not be able to use the General Denial Form

one learns by living but I want to share this mistake with you all so you can learn from my mistake.

tranquility - unfortunately I did not

 

[tranquility]

tranquility - unfortunately I did not

Then, a general denial is usually allowed.

 

[dcatz]

Generally speaking, unless a verified pleading is required by statute, an unverified pleading is preferred. Verified allegations constitute evidence that can be used against you. Since you’re stepping through the litigation in a public forum, it seems safe to guess that evidentiary allegations may be a bad idea just yet.

 

[rmknox]

Generally speaking, unless a verified pleading is required by statute, an unverified pleading is preferred. Verified allegations constitute evidence that can be used against you. Since you’re stepping through the litigation in a public forum, it seems safe to guess that evidentiary allegations may be a bad idea just yet.

My frustration is not so much the general denial - but that he checked box two "DEFENDANT states the following FACTS as separate affirmative defenses to plaintiff's complaint."

In the box where he is supposed to state facts he wrote "Please see attachment A"

Attachment A is a boilerplate list of 31 affirmative defenses. Most of which could not possibly apply.

Nowhere are there any facts that relate any of these defenses to the case.

If I take the list seriously I need to request interrogatories for facts to support each of these 31 affirmative defenses.? A lot of work - in my opinion an unnecessary and unreasonable burden.

Would I be harmed if I were to file a motion requesting that the court find that the defendant has not advanced any affirmative defenses?

 

[tranquility]

Any affirmative defense that even remotely applies are thrown on and many even add an additional retention of rights affirmative defense to cover any forgot. It is fairly standard.

 

[dcatz]

The defendant used a Judicial Council form and used it correctly. You’re frustrated that he threw the kitchen sink at you, but the work is to be expected, and, as Tranq pointed out, the need is very common. I’d regard discovery as a boon rather than a burden.

Would you be harmed by filing the motion? Well, he did advance affirmative defenses – 31 of them. The Court doesn’t know which is/are relevant and the Court’s job is not to decide. It’s your job to prove that.

I expect the movant to lose such a motion and, whether or not there are sanctions, I personally think it’s poor strategy to have the Court’s first exposure to my case to be frivolous law and motion. I’d regard that as harm.

 

[rmknox]

The defendant used a Judicial Council form and used it correctly. You’re frustrated that he threw the kitchen sink at you, but the work is to be expected, and, as Tranq pointed out, the need is very common. I’d regard discovery as a boon rather than a burden.

Would you be harmed by filing the motion? Well, he did advance affirmative defenses – 31 of them. The Court doesn’t know which is/are relevant and the Court’s job is not to decide. It’s your job to prove that.

I expect the movant to lose such a motion and, whether or not there are sanctions, I personally think it’s poor strategy to have the Court’s first exposure to my case to be frivolous law and motion. I’d regard that as harm.

OK - my frustration is not "the kitchen sink" aspect, but that the form calls for facts and the defendant presented none. On the form "facts" is capitalized to make the point. It seems to me that the defendant did not use the form correctly. Per Witkin California Procedure Vol 5 An affirmative defense is "New Matter" - per cccp 431.30(b)(2) and must be pleaded "as if the facts were set forth in a complaint. In other words, the general requirement of stating the ultimate facts applies and, where particularity in a pleading is necessary in a complaint". .. etc.

However it sounds as if this is common practice and if so I understand it could be offensive to the judge for me to challenge it. Which is why I asked if I would be harmed - and your intuition is "yes you would be harmed".

Thanks for your advice.

 

[Nellibelle]

OK - my frustration is not "the kitchen sink" aspect, but that the form calls for facts and the defendant presented none. On the form "facts" is capitalized to make the point. It seems to me that the defendant did not use the form correctly. Per Witkin California Procedure Vol 5 An affirmative defense is "New Matter" - per cccp 431.30(b)(2) and must be pleaded "as if the facts were set forth in a complaint. In other words, the general requirement of stating the ultimate facts applies and, where particularity in a pleading is necessary in a complaint". .. etc.

However it sounds as if this is common practice and if so I understand it could be offensive to the judge for me to challenge it. Which is why I asked if I would be harmed - and your intuition is "yes you would be harmed".

Thanks for your advice.

You can dispute the affirmative defenses through what you turn up in Discovery. If none of the affirmative defenses asserted are factual, you may even have cause to draft and file a motion for summary judgement. I'm sure the judge can see what you see--and that is that many times an answer may very well contain every possible affirmative defense that can possibly exist. Of course rather than filing a motion objecting to 31 various affirmative defenses, it would be better simply to go on with discovery and narrow the affirmative defenses down through the use of interrogatories, depositions and/or production demands.

 

[dcatz]

I have little doubt that the OP would like to file a motion for summary judgment, but a motion for S/J must be denied. The OP has indicated no disposition of the General Denial. To prevail on a MSJ, the OP must show there is no triable issue of material fact (CCP §437c(c)). It costs him $500.00 to try and he should know in advance that he fails. The same fee is applicable to a motion for partial summary judgment or summary adjudication.

Also, if the OP files for MSA before filing for MSJ, he can’t file for MSJ on the same issues that were denied under the MSA unless he establishes the existence of newly discovered facts or circumstances or a change in the law (CCP §437c(f)(2)).

The General Denial controverts the issues raised by the allegations of the unverified Complaint regardless of the affirmative defenses.

 

[dcatz]

OP, I don’t share your implied conviction of the significance of the language of PLD-050, but I think possible disagreement is secondary.

You have an unverified Complaint with multiple causes of action and an unverified Answer with 31 Affirmative Defenses that have never been or will be seen online. I would be concerned that at least 1 of the 31 could withstand your motion, but it’s not dispositive if none survive. The unverified Complaint controls your situation in court.

Let’s assume that your motion is 100% successful. Do you file it as a special demurrer? (The defendant gets leave to amend.) Do you follow with a motion for Judgment on the Pleadings or partial S/J? The former fails because the defendant still has the general denial provided by PLD-050. The latter costs you the statutory “grace period” and the filing fees. Neither gets you judgment. You still need the work that you find “unreasonable and unnecessary”.

Before leaving a very long thread, I will give you my advice: do the work (the burden that you impose on your opposition is greater than your own) or agree to an alternative form of dispute resolution that will get you out of court. Ask for neutral case evaluation or inform the Court that you’ve agreed to non-binding arbitration and ask it to put the case “on hold” pending an award. Seek mediation. My sense is that you’ll be least satisfied by proceeding to trial.

 

[rmknox]

You can dispute the affirmative defenses through what you turn up in Discovery. If none of the affirmative defenses asserted are factual, you may even have cause to draft and file a motion for summary judgement. I'm sure the judge can see what you see--and that is that many times an answer may very well contain every possible affirmative defense that can possibly exist. Of course rather than filing a motion objecting to 31 various affirmative defenses, it would be better simply to go on with discovery and narrow the affirmative defenses down through the use of interrogatories, depositions and/or production demands.

Nellibelle - yes - sounds right - will do

 

[quincy]

rmknox, dcatz is an attorney in California.

It is strongly suggested that you choose carefully whom you listen to on this forum.

It is strongly recommended that you verify all of what is presented on this forum by consulting with an attorney in your own area, and then follow that attorney's advice and direction.

Good luck.

 

[rmknox]

OP, I don’t share your implied conviction of the significance of the language of PLD-050, but I think possible disagreement is secondary.

You have an unverified Complaint with multiple causes of action and an unverified Answer with 31 Affirmative Defenses that have never been or will be seen online. I would be concerned that at least 1 of the 31 could withstand your motion, but it’s not dispositive if none survive. The unverified Complaint controls your situation in court.

Let’s assume that your motion is 100% successful. Do you file it as a special demurrer? (The defendant gets leave to amend.) Do you follow with a motion for Judgment on the Pleadings or partial S/J? The former fails because the defendant still has the general denial provided by PLD-050. The latter costs you the statutory “grace period” and the filing fees. Neither gets you judgment. You still need the work that you find “unreasonable and unnecessary”.

Before leaving a very long thread, I will give you my advice: do the work (the burden that you impose on your opposition is greater than your own) or agree to an alternative form of dispute resolution that will get you out of court. Ask for neutral case evaluation or inform the Court that you’ve agreed to non-binding arbitration and ask it to put the case “on hold” pending an award. Seek mediation. My sense is that you’ll be least satisfied by proceeding to trial.

I understand your reservation regarding the language - and I acknowledge that if the rule I think exists, it is observed in the breach.

And I appreciate your explanation of how my idea of filing a motion was half baked.

I have tried every way I could to resolve this out of court - multiple letters to Defendant pointing out that going to court is painful and expensive. I offered to dismiss if we could agree on an outcome. His response - "It ain't gonna happen". And thus I am doing the work. We just mailed a DISC-001. I will set out to understand neutral case evaluation and non-binding arbitration.

Thanks for your advice

 

[Nellibelle]

I understand your reservation regarding the language - and I acknowledge that if the rule I think exists, it is observed in the breach.

And I appreciate your explanation of how my idea of filing a motion was half baked.

I have tried every way I could to resolve this out of court - multiple letters to Defendant pointing out that going to court is painful and expensive. I offered to dismiss if we could agree on an outcome. His response - "It ain't gonna happen". And thus I am doing the work. We just mailed a DISC-001. I will set out to understand neutral case evaluation and non-binding arbitration.

Thanks for your advice

So, your financial situation is such that you can afford all the litigation fees? Did you check to see if you were/are eligible for a fee waiver, which allows the Court to waive all fees concering the filing of motions and Discovery documents? Did you ever file and serve any 'request for admissions' in an attempt to narrow down the 31 affirmative defenses? Perhaps these are a few things you should consider before any type of arbitration.