General Civil

Glossary of Civil Terms
General Information
   


General Information

    A civil matter involves a lawsuit in which one party sues another to recover money, real property or personal property, to enforce a contract or an obligation, to collect damages for injury (tort), or to protect some civil right. In a complaint, the filing party is called the plaintiff and the accused party is called the defendant. There can be multiple plaintiffs or defendants in a case. The laws governing civil matters are established by the State Legislature in the Code of Civil Procedure (CCP) and the Civil Code (CC).

back to top

Jurisdiction

The Superior Court has jurisdiction over both limited and unlimited matters. A matter is a limited civil case if the demand of the complaint, exclusive of interest, or the value of the property in controversy amounts to $25,000.00 or less. CCP 86 sets forth in greater detail various cases that would fall under limited jurisdiction. A civil action or proceeding other than a limited civil case may be referred to as an unlimited civil case (CCP 86). Usually unlimited cases are matters in which the amount demanded exceeds $25,000.00, the value of the property exceeds $25,000.00, or damages are prayed for as “according to proof” such as in a personal injury case where medical damages continue to be incurred beyond the filing of the complaint.

back to top

Venue

Each Superior Court is in a judicial district with definite geographical boundaries, which are the VENUE of the court. In general a matter is within the venue of a particular court if any of the following conditions are met:

· The defendant lived in the judicial district at the commencement of the action (CCP 395)

· The contract was entered into or to be performed in the judicial district (CCP 395)

· The accident or injury (tort) occurred in the judicial district (CCP 395)

· The real property in dispute is located in the judicial district (CCP 392)

Occasionally, a civil case arising outside the venue of the court is filed, but it is the defendant’s responsibility to object to improper venue.

Click here to see a table of Venues for all courts

back to top

Statute of Limitations

The time limit in which to file a case is called the statute of limitations and in regard to civil matters, the time limits vary and are cited in CCP 312-366.3.

back to top

Guardian Ad Litem

The plaintiff or defendant may be an individual, a partnership, a business, a corporation, or a government agency. If the plaintiff or defendant is a minor, conservatee or incompetent person, then a GUARDIAN AD LITEM must be appointed by the court to represent the minor, conservatee or incompetent person in each case. Information on parties to civil actions is set forth in detail in CCP 367-389.

back to top

Commencement of the Case

A civil action is commenced by filing a complaint with the court. (CCP 411.10). Occasionally a complaint may not be the initiating document. For example, a Confession of Judgment can commence a civil action, but most of the time the complaint is the document filed to commence a civil action. Complaints and other documents may be prepared and filed on Judicial Council FORMS, or if no form exists, a pleading must be drafted and be in the proper legal format pursuant to CRC 201. The San Bernardino County Law Library has books with formats and examples for drafting pleadings of different types.

The COMPLAINT or pleading must be filed with some basic documents and accompanied by a FILING FEE or valid application and proposed order granting a FEE WAIVER. A governmental agency does not pay a fee at the time of filing but must put the government code that allows the waiver of fees on the face of the complaint or pleading.

In most cases, the plaintiff pays the filing fee or files a fee waiver if eligible and the clerk files the complaint and issues a summons. A copy of each of the complaint, summons and supporting documents must be served upon the defendant, (CCP 412.10 through 417.40) thereby giving notice that there is a civil action pending.

The summons gives limited direction to the defendant regarding responding to the complaint. It states the court where the case was filed, parties to the suit, and instructs the defendant that the time to respond is 30 days, or they may lose the case. (CCP 412.20) A copy of the summons is usually served on the defendant by a sheriff, marshal, constable, a private process server, mail, publication of summons, or someone over 18 years old who is not a party to the action. (CCP 413.10-416.90) The original summons with PROOF OF SERVICE must be filed with the court. (CCP 417.10-417.40) Proof of service is a written statement signed by the server stating that the defendant was given a copy of the summons and complaint. There is a proof of service form on the reverse side of the summons. The summons brings the defendant, upon being served, under the jurisdiction of the court.

back to top

Attachment

After a complaint is filed with the clerk, if the plaintiff wishes to attach the property of the defendant as security for a possible judgment, the law provides that her or she may institute attachment proceedings by filing an Application for Attachment, and shall be supported by Affidavit. Upon court order and filing of an undertaking as provided by statute CCP 489.210, 489.220, gives the clerk the authority to issue a writ of attachment that is served by the levying officer or registered process server for the property being attached. The property being levied upon is held until the determination of the plaintiff’s claim. However, the United States Supreme Court has declared that the attaching of the defendant’s wages through this process in unconstitutional, and the California Supreme Court has ruled similarly. More recently the California State Legislature has passed a bill that prohibits attachment of wages prior to a court hearing. Consequently, the levying officer agencies will not serve a Writ of Attachment if it is for wage garnishment purposes.

There are various methods by which a defendant can release an Attachment, but the one most commonly used is the filing of a motion with points and authorities in the LAW AND MOTION unit of the court, and the posting of a bond or undertaking, the amount of which is determined by the judge if he grants the motion releasing the Attachment.

back to top

Response

The defendant may contest or deny the allegations against him or her by filing a legal written response with the court and posting the necessary fees within the statutory time allowed which is within 30 days of the date of personal service. If service was completed in a manner other than personal service the time to respond may be extended by 10 days. For example in substituted service, reasonable attempts must be made to serve the defendant in person, but if he or she cannot be found, then the documents may be served on a member of the household over 18 and mailed addressed to the defendant; then the defendant would have 40 days to file an answer or otherwise respond. The defendant must serve a copy of the response upon the plaintiff. A proof of service form or pleading must accompany the response when it is filed with the court.

There are many different types of responses ranging from a simple general denial form response or a form answer, to a comprehensive document drawn up by an attorney. A person can act as his/her own attorney (in pro per) in the prosecution or defense of a civil action, however in doing so, a pro per party is responsible for following the rules of the court and do so at their own risk.

Concurrent with the filing of a response, the defendant may file a cross-complaint (CCP 422.10) naming the plaintiff or another party in a counter-suit for damages. A cross-complaint must be a separate document; it must arise out of the same cause of action; it can bring in a new party or parties other than the plaintiff and it must be served on the cross-defendant. A cross-complaint can be filed at any time before the court has set a date for trial, as long as the party is not cross complaining against the party who sued them. If the cross-complaint is against the person who originally sued the cross-complainant, then the cross-complaint must be filed concurrently with the answer or the party must obtain leave of court in order to file the cross-complaint at a date after the answer has been filed. (CCP 428.50) The time to answer a cross-complaint is within 30 days from service, unless the court orders an extension of time to plead.

The defendant(s) may file a demurrer to the complaint. The plaintiff may demurrer to the answer of the defendant(s) also. This is a pleading that objects to possible legal defects in the specified document objected to, and a hearing on the Demurrer is held in the Law and Motion Court.

If the plaintiff who files the Complaint or the defendant who files the Answer wishes to change the contents of his or her pleadings in some respect, he or she may do so before trial by filing either an amendment to the pleadings or an amended pleading. (CCP 26.50,471.5,472,473,474)

back to top

Amended Pleadings

An Amendment to the Pleading is an addition, substitution, or change in the original pleading relating to matters occurring prior to the commencement of the action, such as adding or striking out the name of any party, or by correcting a mistake in the name of the party, or a mistake in any other respect; the amendment does not supersede the original Complaint; it is added to the original Complaint and becomes a part of it.

An Amended Pleading is a pleading that is entirely rewritten pertaining to matters of substance, and is used in place of, and supersedes the original pleading; an Amended Complaint should be verified the same as the original Complaint and a Summons issued and served on un-served defendants, and time to answer is within 30 days for personal service.

A supplemental pleading (CCP 464-465) is filed on noticed motion or upon stipulation of parties and it alleges facts material to the case occurring after the original pleading has been filed. A Supplemental Pleading is merely an extension to the case made by the original pleading and it can only bring up matters that occur after the commencement of the action. It may be filed any time before judgment.

back to top

Dismissals

A plaintiff may file a request for dismissal for various reasons. (CCP 581-583.430) Some reasons may be: the plaintiff decides not to continue with the suit, the defendant pays the obligation the suit was based upon, the suit was filed in error, or the suit was filed in the wrong venue.

The dismissal can be filed with or without prejudice. If the dismissal is filed with prejudice the litigant cannot sue again on the same cause of action. If the dismissal is filed without prejudice, the litigant may file the suit again on the same cause of action.

A dismissal may be filed as to one defendant, leaving the action to proceed against the remaining defendants. In some cases, a dismissal by court is mandatory if the plaintiff fails to bring the action to trial within 5 years after the action is commenced. (CCP 583.310)

back to top

Default Judgment

Judgment may be had, if the defendant fails to answer or otherwise respond to the complaint within the prescribed period of time after service. The plaintiff may request the entry of default and a DEFAULT JUDGMENT. (CCP 585-587) The entry of default records the fact that the defendant defaulted by not answering or responding, or by not answering or responding in time.

Default judgment proceedings are important, because judgment can be entered without the necessity of trial court time. A default judgment by clerk may be entered without judicial review on matters arising from contracts or recovery of money. In some cases additional proof and evidence are needed to determine the plaintiff’s claim and the judgment is determined by means of a default “prove-up” hearing before a judge or commissioner after which a default judgment by court is entered.

back to top

Discovery

At any stage of the proceedings after the complaint is filed, an attorney for a party to the action may compel the attendance of a witness for the purpose of giving testimony at trial, a deposition, or other proceedings, by preparing a subpoena and then causing it to be served on the prospective witness. A party appearing in pro per must have the clerk of the court issue a subpoena. A clerk can pre-issue a subpoena but it must be filled in by the party prior to service. An attorney is an officer of the court and may prepare, issue and serve a subpoena without the court’s assistance. An attorney may wish to have a pre-issued subpoena from the clerk but it is not required as it is for the pro per party.

When it is desirable to have the witness bring specified books, documents, or other things under their control to the hearing, a subpoena duces tecum is issued. An affidavit showing good cause is prepared by the party or attorney and accompanies the subpoena.

Any disobedience to a Subpoena or Subpoena Duces Tecum, refusal to be sworn, or to testify as a witness, may be punished as a contempt of court by the court issuing the subpoena, and a bench warrant may be issued and served on that party. A person subpoenaed to appear as a witness is entitled to witness fees, but a witness is not obliged to attend as a witness before any court, judge, justice or any other officer, unless the witness is a resident within the state at the time of service.

back to top

Contested Cases
When the defendant has contested the action by filing a proper response and the case is at issue (at least one response to each complaint is filed, or cross-complaint with no response has been on file for at least 6 months). A civil case not subject to delay reduction may be set for trial when the court so requires, or any party may file a request to proceed with trial. In cases subject to DELAY REDUCTION (also known as “Fast Track”), the court may require a case management conference, arbitration and a mandatory settlement conference prior to commencement of trial. A CASE MANAGEMENT STATEMENT is filed with the court 15 calendar days prior to the case management conference that was scheduled and noticed when the complaint was filed. This document may be filed jointly by all of the parties, or individually be the plaintiff and defendants. This document sets forth facts to support readiness for trial, whether a jury trial is demanded, whether the case is subject to arbitration, etc. (CRC 209, and following.)

Various methods of alternative dispute resolution (ADR) are used in an attempt to settle the case without need for trial. An ADR packet is provided at the time of filing the complaint. Certain cases will be subject to mandatory ARBITRATION. Some parties elect to have MEDIATION instead of arbitration. The arbitration or mediation proceedings can be binding if agreed upon by the parties. A MANDATORY SETTLEMENT CONFERENCE is held prior to the commencement of trial. Attorneys, parties and insurance representatives able to settle the case must be present at the conference.

A stipulated judgment may be filed with the court, subsequent to the filing of the complaint and up to and including the time of trial on the issues. As some time during that period, the parties may agree to stipulate to the terms of a judgment that specifies how much money is owed to whom and the conditions under which it is to be paid. The stipulation must be signed by both parties or orally entered into the court record. In some instances, it is the first appearance by the defendant and requires a first appearance fee. By signing the stipulated judgment, the defendant has made a general appearance, so the fee becomes due. The clerk enters the judgment pursuant to stipulation after judicial review.

back to top

When requesting a trial date, either party may request a jury trial and deposit with the clerk, advance jury fees 25 days prior to the date set for trial. (CCP 631(5)) Some courts also require a court reporter or other means of recording fees to be deposited with the clerk.

    • If the case is not previously resolved by default or settlement, when the trial date arrives, the bench officer calls the case. One of several things may occur:
    • If both parties are present and ready to go to trial, the case will proceed and be tried.
    • If only the plaintiff is appearing and wishes to proceed, the case may be heard and can proceed to judgment based on the proof offered by the plaintiff.
    • If the defendant is the only party appearing and is ready for trial, he or she may have the case dismissed because the plaintiff is not there to present the case.
    • If both parties are present but for any one of many reasons are not ready to proceed, the court may grant a continuance to a future date.
    • If neither party is present and ready to proceed, the case may be declared “off calendar” or “dismissed.”

When a civil matter goes to court trial, each side presents their case; the plaintiff has the burden of proof and presents their side of the matter first, calling witnesses and presenting any evidence to prove their case. The witnesses are subject to cross- examination. The length of trial varies greatly, depending on how many witnesses and the amount of evidence presented.

After all the evidence has been presented and each party has rested their cases, each party has the opportunity to make a closing argument. The matter is then submitted to the judge for decision. There are various types of judgment in a civil matter, some of the most common are:

· Judgment for the plaintiff;

· Judgment for the defendant;

· Judgment for a cross-complainant against a cross-defendant;

· A so-called net judgment where there is a cross-complaint and the judge finds for each party for a certain amount, but there is a balance remaining, a net amount which goes to the prevailing party;

· An “off-set” judgment where each party gets nothing and each party bears their own costs;

· JUDGMENT OF DISMISSAL, usually for lack of prosecution, the judge dismisses the plaintiff’s case against the defendant and the defendant may recover costs.

The clerk is required to enter the judgment in the REGISTER OF ACTIONS. (CCP 668.5) The clerk must send a notice of entry of judgment (CCP 664.5) or a filed stamped copy of the judgment on cases in which the prevailing party is not represented by counsel. In cases in which the prevailing party is represented by counsel, it is the responsibility of the attorney to execute the Notice of Entry of Judgment to all parties, together with proof of service by mail. The notice contains pertinent information as to case title, case number, prevailing and losing parties and the amount of judgment.

Civil jury trials involve additional procedures due to the required jury fees, jury selection and the verdict. If either party demands a jury trial, that party must deposit jury fees at least 25 days before the trial date. (CCP 631(5))

When the civil action is called for trial by jury, the clerk, or the judge where there is no clerk, must randomly select the names of the jurors from the trial jury box of the court or call names from a random computer listing of jurors, until the jury is selected, or the panel is exhausted. The jury consists of 12 persons or any number less than 12 persons upon which the parties may agree. (CCP 219-222)

Proposed jury instructions are submitted to the court by counsel and discussed with the judge for any modifications before the trail begins. Jury Instructions are read to the jury before they retire for deliberation.

At the conclusion of all testimony, evidence and submission of exhibits, the closing arguments are heard. Closing arguments are a summation of all information presented by each side, substantiating testimonies and evidence to prove their cases.

The jury is then retired for deliberation; the juror may take 3 things into the jury room:

1) Jury instructions
2) Exhibits admitted (CCP 612 and 612.5)
3) Verdict slips,

prepared by the court clerk in advance. If a special verdict is necessary, counsel may be ordered to prepare it. When at least three-fourths of the jurors have agreed upon a verdict, the jurors then return to the courtroom. The clerk then reads the verdict aloud and the verdict is filed. Either party may ask the judge to “poll” the jury, which means each juror will be asked if this is their true verdict. (CCP 618)

In jury trials, recording of the verdict and judgment must be made in the court minutes and entered on the Register of Actions within 24 hours.

If the judgment debtor refuses to pay the judgment creditor, the following options are available:

a) An aid in the collection of a judgment is the Court Order for Appearance of Judgment Debtor (commonly known as an ORAP). (CCP 708.110) The court requires a fee. A judgment debtor can be brought by the judgment creditor into court for an examination as to judgment debtor assets. A judge or commissioner signs the court order and failure by the judgment debtor to appear as ordered to answer concerning income and property may subject them to arrest and punishment for contempt of court if he or she was personally served the order to appear.

b) The judgment creditor may request the issuance of a writ of execution by the clerk. A writ of execution is a court paper showing all relevant information regarding the judgment, that the levying officers requires in order to serve the debtor. The writ is a means of levying on the judgment debtor’s property to collect or seize whatever is necessary to satisfy the judgment, plus costs. (CCP 681-688)

c) The judgment creditor may request the clerk to issue an abstract of judgment which shows the elements of the judgment and when recorded will put a lien on the real property. The judgment creditor records the Abstract of Judgment with the County Recorder’s office in the county where the judgment debtor’s real property is located. The judgment would have to be paid off in the event of a sale or refinancing of the property.

Another important phase of civil procedure that should be mentioned is the third party claim. (CCP 720.220-720.250) This is a document that can be filed with the levying officer if some personal property levied on is claimed by a third party as his/her property. The claim must describe or identify the property attached, state its reasonable value and set out facts to show the claimant’s title and right to possession. After the verified claim is filed with the levying officer, he or she must make a demand upon the creditor for the posting of a bond if the creditor wishes to contest the third party’s claim. If the bond is posted, a hearing can be set for a court determination of the Third Party Claim, deciding which party is entitled to the property in question.

If a party is unsatisfied with the judgment or order entered in a civil action, the party has a right to APPEAL. (CCP 901 and following.) An appeal must meet the requirements in the Code of Civil Procedure and the California Rules of Court. An appeal, other than in a limited civil case, is to the court of appeal. An appeal of a limited civil case is to the appellate division of the superior court. The rules for appeals in limited civil cases are found in CRC 121-144. The rules for appealing unlimited civil cases are found in the California Rules of Court 1-80. Information on Internal Operating Procedures by Appellate District can also be found in the California Rules of Court.

In a limited civil case, the time for filing the notice of appeal is the earliest of the following, except as otherwise provided by statute or Rule 123:

1) 30 days after the date of mailing by the clerk of the court of a document entitled “notice of entry” of judgment or appealable order;

2) 30 days after the date of service of a document entitled “notice of entry” of judgment or appealable order by any party upon the party filing the notice of appeal, or by the party filing the notice of appeal; or

3) 90 days after the date of entry of the judgment.

A file stamped copy of the judgment or appealable order may be used in place of the document entitled “notice of entry.”

A filing fee for Notice of Appeal must be paid at the time of filing, or within ten days thereafter. The Appellate Division of the Superior Court determines the appeal from the record sent up by the trial court, usually consisting of one or more of the following: Clerk’s Transcript, Reporter’s Transcript, Settled Statement or Agreed Statement. Settled and Agreed Statements are signed by the court and constitute a brief description of what took place in the disputed case.

Rules of Court 121-144 describe the steps in the limited civil appeals process. Each step must be completed according to certain time limits. Failure to meet time requirements results in a default, which prevents the case from being heard in Superior Court. After the appeal is heard, the Appellate Division of the Superior Court files a remittitur (decision) with the trial court. Judgment affirmed means the judgment stands as rendered by the trial court. Judgment reversed means the judgment or order appealed from is no longer in force and is, in effect, vacated and the status of the case reverts to that existing prior to the entry of the judgment or order. Depending on the outcome of the appeal, the court may set a hearing date or either party may then move for a new trial. The case is returned to the control of the trial court once the remittitur is filed.

In an unlimited civil case, the time for filing the notice of appeal is the earliest of the following, except as otherwise provided by statute, CCP 870 or Rule 3:

4) 60 days after the date of mailing by the clerk of the court of a document entitled “notice of entry” of judgment or appealable order;

5) 60 days after the date of service of a document entitled “notice of entry” of judgment or appealable order by any party upon the party filing the notice of appeal, or by the party filing the notice of appeal; or

6) 180 days after the date of entry of the judgment.

A file stamped copy of the judgment or appealable order may be used in place of the document entitled “notice of entry.”

A filing fee for Notice of Appeal must be paid at the time of filing, or within ten days thereafter. The Appellate Division of the Superior Court determines the appeal from the record sent up by the trial court, usually consisting of one or more of the following: Clerk’s Transcript, Reporter’s Transcript, Settled Statement or Agreed Statement. Settled and Agreed Statements are signed by the court and constitute a brief description of what took place in the disputed case.

Rules of Court 1-80 describe the steps in the unlimited civil appeals process. Each step must be completed according to certain time limits. Failure to meet time requirements results in a default, which prevents the case from being heard in the appellate division. After the notice of appeal is filed, the Appellate Division of the Superior Court prepares a packet for the district court of appeals. Once a decision is made on the appeal the appeals court renders an opinion and subsequently files a remittitur (decision). A certified copy of the opinion and remittitur is sent to the trial court. Judgment affirmed means the judgment stands as rendered by the trial court. Judgment reversed means the judgment or order appealed from is no longer in force and is, in effect, vacated and the status of the case reverts to that existing prior to the entry of the judgment or order. Depending on the outcome of the appeal, the court may set a hearing date or either party may then move for a new trial. The case is remanded (returned) back to the control of the trial court once the remittitur is filed.

Once cases are dispositioned by dismissal or judgment the file, register of actions and exhibits are maintained for a certain period of time. The minimum retention period for records varies and is covered under Section 68152 of the Government Code. The records may be destroyed upon an order by the presiding judge once the time limits have passed.

A GLOSSARY OF TERMS may be helpful in understanding civil concepts. Civil actions can be very complex. You may need the advice of an attorney in order to proceed with a civil action. The clerks in the civil division cannot recommend an attorney or give you legal advice. The San Bernardino County Bar Associations has a LEGAL REFERRAL SERVICE. You may also contact The CALIFORNIA BAR ASSOCIATION for information on attorneys and areas of specialty. There are various types of LEGAL AID available in San Bernardino County.