J.D. Harvard Law School ‘73
M.A. Columbia University
B.A. Yale University
Mediator, Judge Pro-Tem
Certified Family Law Specialist
licensed by the State Bar of California
Stan is a member of the
San Diego North County Bar Association.
Licensed to practice in California, Maryland, Washington D.C., & Georgia
A lawsuit is also called an action or a case. It starts with a complaint. A complaint is a statement of the plaintiffs claims against the defendant. The Rules of Court prescribe what it looks like, as far as margins, spacing, type size, location of the names of the plaintiff and defendant (called the caption), and so forth. The plaintiff and defendant are called parties. Complaints usually start with something like, Plaintiff alleges as follows.
Then there are introductory paragraphs identifying the parties, and showing that the complaints been filed in the right place. The right place is usually the court in the county where the defendant lives. This is called venue. If the plaintiff, call him Tom Jones, filed his complaint in the right court, venue is proper. If Toms filed it in the wrong court, venue is improper and the defendant, call him Henry Fielding, can get the case transferred to the right court.
After the introductory paragraphs come the claims, allegations of what the defendants done to the plaintiff. In state court the claims are called causes of action. In federal court they’re just called claims. Each cause of action must be alleged separately, and each must state certain essential facts entitling the plaintiff to get something from the defendant, usually money.
The essential facts are called the elements of the cause of action. In other words, in order to get the court to order Henry to pay him money, Tom has to allege (and eventually prove) a specific set of facts. For example, if Tom claims Henry cheated him, Tom must allege the elements of fraud: that Henry made a statement of fact to Tom, the statement was false, Henry knew it was false, he made it to induce Tom to do something; Tom did it in reasonable reliance on Henrys statement, and Tom lost money because he did it.
If Tom leaves out one of the elements, Henry can ask the court to throw out the complaint. In legal terms, Tom can demur and ask for dismissal. For example, Tom might allege that Henry said the horse he sold to Tom for $100 was a wonderful horse. Oops. That is an opinion, not a statement of fact. If Henry demurs, the judge will grant Henrys demurrer and dismiss Toms complaint. However, the judge will give Tom a second chance.
So Tom files an amended complaint alleging Henry falsely said the horse won last year’s Derby, a statement of fact. If Henry demurs again, his demurrer will be denied, and the lawsuit will proceed. At trial, Tom still has to prove his reliance on Henrys statement was reasonable. With his iPhone Tom could have checked out last year’s winner in a few seconds and given Henry a horselaugh instead of his money. Tom could conceivably lose.
Henry then files and serves his answer on Tom. Henry s answer will deny some or all of the allegations of Toms complaint and might raise something called an affirmative defense. Henry might also file a cross-complaint against Tom, alleging a claim Henry has against Tom that has nothing to do with the sale of the horse.
Stanley D. Prowse is a Civil Litigation Attorney practicing in the greater San Diego area.
We serve the following San Diego County and Southern California Desert Areas: San Diego, Carlsbad, Del Mar, Solana Beach, Encinitas, La Jolla, La Mesa, Escondido, Vista, Oceanside, Rancho Santa Fe, San Marcos, Marine Corps Base - Camp Pendleton, Poway, Ramona, Julian, Alpine, Temecula, Borrego Springs, Palm Springs, Indio, Indian Wells, Palm Desert, Rancho Mirage, Desert Hot Springs, La Quinta, Coachella, Cathedral City.