Naming Specific Defendants and Other Pleading Tactics
Summary: This blog, aimed at the audience of self-represented plaintiffs or plaintiffs’ attorneys in California civil lawsuits explains certain details of good pleading practices on complaints that help avoid demurrer and set the stage for possible judgment on the pleadings as to statute of limitations, as well as aid in discovery. Specifically, the complaint is supposed to identify by name which defendants the plaintiff seeks liability against for each cause of action alleged, and type allegations that are “ultimate facts” only. Examples of ultimate facts can be found in the California Judicial Council Civil Jury Instructions, which is known as CACI. The most recent version of CACI as of the time of publication was available at the website address: .
DETAILS
Pleading is an art that is difficult to master. The purpose of the complaint includes putting the defendants on notice of the claims, as well as limiting what is “at issue.” CCP sects. .
Other than avoid being subject to demurrer, meaning defeat due to legal imperfection, the goal of every complaint is to set the litigation stage for a plaintiff to obtain the optimal remedy in as few words as possible.
Almost all attorneys, and many self-represented litigants may know that the specific words comprising a complete cause of action that must be typed on the face of a complaint may be found in the California Judicial Council Civil Jury Instructions, nicknamed
. Failure to type the proper words, or failure to make a material allegation of fact may result in the complaint being dismissed. CCP sect. . However, self-represented litigants, and even attorneys, may not know that each cause of action is supposed to identify by name which defendant or defendants that plaintiff seeks liability against.
This may be overlooked, because in many lawsuits, plaintiff seeks liability on each cause of action against each defendant. In other circumstances, the defendants or their attorneys don’t care or don’t known the applicable rules.
However, under , a defendant may successfully demure to the complaint for uncertainty. Demurrer means that the complaint fails, and the case can be dismissed, risking total loss by plaintiff.
If a defendant can show that the facts alleged against that defendant for a particular cause of action cannot be true with respect to that plaintiff, the demurrer can be sustained.
The standard practice to identify specific defendants is to state the specific names in the cause of action heading, as well as state by defendant’s specific name or names against whom Plaintiff seeks liability.
For example, imagine a hypothetical case of an auto collision, where the plaintiff driver was struck by another vehicle that was making a turn, and did not yield to oncoming traffic. The plaintiff may allege negligence against the other driver, but also may allege products defects against the manufacturer of plaintiff’s automobile on the theory that the brakes were defective and caused plaintiff’s vehicle to not stop in sufficient time to avoid the collision.
The portion of the complaint presenting the heading for the cause of action for negligence might look like this. Note, no warranty or guarantee that these allegations are sufficient.
CAUSE OF ACTION ONE
(Motor Vehicle Negligence - Against Defendant David Driver)
The portion of the complaint presenting the heading for the cause of action for negligence might look like this.
CAUSE OF ACTION TWO
(Products Liability - Against Defendant Carla Carmaker)
7. Plaintiff re-alleges and incorporates all previous allegations by reference.
8. The statute of limitations for this cause of action is two (2) years.
9. As a material allegation of fact, Defendant Carla Carmaker manufactured and distributed the vehicle that Plaintiff was driving when struck by the vehicle driven by Defendant David Driver.
10. As a material allegation of fact, the vehicle manufactured and distributed by Defendant Carla Carmaker manufactured and distributed the vehicle that Plaintiff was driving was defective when it left Defendant Carla Carmaker’s control.
11. As a material allegation of fact, Plaintiff used the vehicle manufactured and distributed by Defendant Carla Carmaker manufactured and distributed in a reasonably foreseeable manner.
12. As a material allegation of fact, the defect that existed in the vehicle that Defendant Carla Carmaker manufactured and distributed and that Plaintiff was driving when struck by Defendant Driver’s vehicle caused harm to Plaintiff.
13. Thereby, Plaintiff demands judgment of liability against Defendant Carla Carmaker for Products Liability and states and prays for damages in an amount according to proof.
Comments on the sample pleadings
CONCLUSION
Following best practices of pleading can assist throughout the case. Specifically naming defendants that plaintiff seeks liability against for each cause of action, both in the heading as well as in the allegations can help prevent demurrer. [CCP sect. ]. Alleging each required ultimate facts derived from the CACI essential factual elements can help avoid demurrer. [CCP sect. ]. Starting only the sentences that allege the essential elements of the cause of action with the phrase, “as a material allegation of fact,” can assist in obtaining evidence supporting a defendant’s denials in response to Form Interrogatories - General, number 15.1.
Following these best practices can save time and produce better outcomes.
