Questions and Answers
What must the defendant do after he or she has been served with a summons and a complaint?
File one or more defensive pleadings within a certain number of days.
What is one ground for using a demurrer?
The plaintiff has no legal capacity to sue.
Who usually attends the demurrer to be heard by the court?
The plaintiff.
Name four important defensive motions.
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Who attends a motion session?
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What must the defendant do if the motion to dismiss is denied?
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List three grounds for a motion to dismiss.
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What may the opposing party do if a pleading is so vague that the party cannot respond to it?
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What may the opposing party do if a pleading contains an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter?
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On what ground might a plaintiff make a motion for judgment on the pleadings?
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What must the defendant's answer state?
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What will be the result if the defendant fails to deny any allegation made in the plaintiff's complaint?
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What will be the result if an affirmative defense is omitted from the defendant's answer?
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List three affirmative defenses.
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What may the defendant do if he or she wishes to bring a suit against the plaintiff?
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How must the plaintiff respond to a defendant's counterclaim?
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Who are the parties to a cross-claim?
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After an action has begun, what is necessary for the defendant to do within 30 days from the date of service of the summons in California?
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If the court sustains a demurrer, what does the defendant receive?
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A motion to dismiss may be allowed for failure to state a claim for which relief can be granted?
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A motion to dismiss may be allowed for dismissal without prejudice of a party?
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A motion for judgment on the pleadings may be made by whom?
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The plaintiff might make a motion for judgment on the pleadings on the ground that the defendant's answer does not set forth a legally sufficient defense?
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Unless the case is dismissed by the allowance of a motion to dismiss, what must the defendant file within a prescribed number of days after service of process?
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If the defendant fails to deny an allegation made in the plaintiff's complaint, what happens to that allegation?
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When an affirmative defense is used, what does the defendant accept?
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What is a cross-claim?
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Study Notes
Defendant Actions Post-Service
- The defendant must file defensive pleadings within 30 days of being served.
- Failure to respond results in loss of the case.
Grounds for Demurrer
- A demurrer can be filed if the plaintiff lacks legal capacity to sue.
Demurrer Hearings
- Typically, the plaintiff is present when the demurrer is heard in court.
Defensive Motions
- Important defensive motions include:
- Motion to dismiss
- Motion to strike
- Motion for summary judgment
- Motion for a more definite statement
Motion Session Attendance
- Motion sessions involve the judge and attorneys, where requests are made by attorneys.
Response to Motion to Dismiss
- If the motion to dismiss is denied, the defendant must file an answer within a specified timeframe.
Grounds for Motion to Dismiss
- Common reasons for filing a motion to dismiss include:
- Improper venue
- Misnomer of a party
- Failure to join a necessary party
Vague Pleadings
- A party may file for a more definite statement if the pleading is too vague to respond.
Insufficient Defense in Pleadings
- A motion to strike can be made if a pleading contains insufficient defenses or irrelevant material.
Judgment on Pleadings
- A plaintiff may motion for judgment on the pleadings if the defendant's answer lacks a legally sufficient defense.
Content of Defendant's Answer
- The defendant's answer must clearly state defenses, which can be admitted or denied.
Failure to Deny Allegations
- Not denying allegations in the plaintiff's complaint leads to a default judgment against the defendant.
Omission of Affirmative Defense
- If an affirmative defense is omitted from the answer, it cannot be used later.
Affirmative Defenses
- Examples of affirmative defenses include:
- Duress
- Fraud
- Illegality
Counterclaims by Defendant
- A defendant can file a counterclaim against the plaintiff if it arises from the same transaction or occurrence.
Response to Counterclaim
- The plaintiff must respond to a defendant's counterclaim with a reply.
Cross-Claims
- Cross-claims are made by one defendant against another within the same suit and must arise from the same transaction or occurrence.
Timeline for Defensive Pleadings
- In California, the defendant has 30 days post-service to file defensive pleadings.
Court Action on Demurrer
- If the court sustains a demurrer, the defendant is allotted time to file an answer.
Motion to Dismiss Validity
- A motion to dismiss can be granted for failure to state a claim for which relief can be granted.
Dismissal Without Prejudice
- A motion to dismiss can also be allowed for dismissal without prejudice of a party.
Judgment on the Pleadings
- Either party may request a motion for judgment on the pleadings based on the other party's insufficient defense.
Written Answer Requirement
- The defendant must file a written answer unless the case is dismissed through a motion to dismiss.
Automatic Admission of Allegations
- Allegations not denied by the defendant are automatically admitted as true.
Nature of Affirmative Defense
- In using an affirmative defense, the defendant acknowledges the plaintiff's allegations while offering a legal reason for relief.
Definition of Cross-Claim
- A cross-claim refers to the claim made by a defendant against a plaintiff.
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Description
Test your knowledge on legal procedures surrounding defenses and demurrers. This quiz covers essential aspects such as the defendant's obligations after receiving a summons and grounds for using a demurrer. Challenge yourself to understand these fundamental legal concepts!
