Suing Someone

Before you file a civil case, you must figure out:

• Whom to sue;
• What you need to do before you file your lawsuit, like making a written demand;
• Where the person or business you want to sue is located;
• Where you should file your lawsuit;
• How long you have to file your lawsuit (this is called the “statute of limitations”); and
• Whether the costs of the lawsuit will likely be more than what you can recover. Remember, costs are not only money. Your time, the stress of a lawsuit on yourself and your family, how it might affect you if you lose, all these are costs. You need to consider them all carefully before you file your lawsuit.

These are hard issues to decide, even if at first glance they seem easy. For example, let’s say you get into a car accident. First, you have to figure out if the person who was driving the car is also the owner of the car. If not, you have to make sure you sue both the driver and the owner. Second, was the accident in part your fault? You also need to know what city and county the car accident happened in. And you only have a certain amount of time to sue, called the “statute of limitations.” If you do not file your lawsuit within the statute of limitations, your case can be dismissed, even if the other person was clearly at fault.

And what if the car that hit you is a government vehicle, like a police car? In that case, you might have to sue the city or county where the police department is located. When you sue a government entity, the law generally requires you to first file a Government Tort Claim with the government entity, usually within 6 months from the date of the accident or incident causing injury. Most government entities have forms for this purpose. This requirement is to give the government entity notice of what happened and allow them to review your case and resolve it outside of court. If you do not file the Government Tort Claim with the government entity within the required time period, you may not be able to recover any money from that entity. Once you file your government claim, the government entity will accept your claim, deny your claim, or not respond. If the government entity denies your claim or does not respond within 45 days, you can then sue in court, but there is usually a shorter statute of limitations to file your lawsuit from the date the claim is denied (or the 45 days go by), often only 6 months!

IMPORTANT: Read Preparing for Court to find out how to figure out these issues and why they are so important. If you make mistakes with these first few steps before you even file your case, you may end up losing based on a procedural issue and never get your day in court.

If you are suing for $10,000 or less, consider whether small claims court can work for you. To find out more, read the information and instructions to file in small claims court. There are some exceptions to the $10,000 limit, so make sure you understand those too.

Even if you want to sue for more than $10,000, reducing the amount you sue for so you can file in small claims court may make more sense than filing a limited civil case for more money. Remember that when you file a limited civil case, there are many more costs involved than in small claims, like higher filing fees, the need for a lawyer, meeting all the court requirements, and time. Suing for more money in a limited civil case but having to pay much more to file and handle the lawsuit may result in you getting less than $10,000, or only slightly more, and not worth the extra time, effort, and money of a limited civil case.

• For example, if a plaintiff is owed $12,000, but the cost to file in superior court (including lawyers’ fees to help with the more difficult parts of the case) will be more than $2,000, it may make more sense to sue in small claims for $10,000 and avoid the additional costs.
• Or what if you have a personal injury case, like a slip and fall at a store, where you want to sue for $15,000 to $18,000? If you hire a lawyer to take the case on a contingency basis (meaning that the lawyer only gets paid if you win or settle in your favor), the lawyer’s fees will probably be at least 1/3 of what you win, or about $5,000 to $6,000. Adding that cost to other costs common in civil cases, you could easily spend over $7,000 just to have your limited case in civil court. This would leave you with $8,000 to $11,000, which is either less than you would have had if you had gone to small claims court or only a little more. And you would have had to go through depositions, filling out discovery requests like interrogatories, and other steps that take a lot of time and energy.

If you decide that you still want to ask for the higher amount of money and file a limited civil case, the rest of this section will give you general information about the court process.

1. Prefiling: Starts when the reason for the lawsuit first happens, like an accident or the breaking of a contract. There are a lot of things you must do to get ready before filing a lawsuit.
2. Filing: Starts when you file the papers with the court to start the case.
3. Response or default: Once you have the defendant served with a copy of the lawsuit, he or she has 30 business days to respond by filing proper papers in the court. If the defendant does not respond, he or she is in default. If the defendant was not personally served, but was substitute served by having the papers given to someone else in the household and having a second copy mailed, the defendant has 40 days from the date of the mailing to file a response in the court.
4. Discovery: You can start discovery 30 days after the defendant answers the lawsuit. Defendants can start discovery once they are served. The discovery process allows both sides to exchange information and learn about the strengths and weaknesses of both sides of the case.
5. Pretrial: If the parties cannot settle the case, pretrial starts about 90 days before the trial. This is when both sides get ready for the trial, get their witnesses and evidence lined up, and make important decisions about how to handle the case. During pretrial, they also have settlement conferences with the judge.
6. Mandatory settlement conference: Before the trial date the court may hold a mandatory settlement conference to try to assist the parties in settling the case. This conference may be held informally in the judge’s chambers or in a courtroom. All parties with authority to settle the case must attend. A written settlement conference statement must be filed with the court at least 5 court days before the conference. Read rule 3.1380 of the California Rules of Court.
7. Trial: The trial can last 4 hours or less, a day, or sometimes a week or more. It depends on how complicated the case is. It can be a jury trial or a court trial, depending on the type of case and what the parties choose.
8. Post trial: This means after the trial. This is when either side can appeal or collect the judgment.

Once you have answered all the preliminary questions about whom to sue, where to file your lawsuit, and how much to sue for, you are ready to file your case. Civil cases vary a lot depending on what the lawsuit is about, but there are some general steps you will have to follow no matter what you are suing about.

1. Prepare Your Court Forms

Complaint: To start a limited civil lawsuit, the plaintiff (the person who starts the case) files several forms. The first form to complete is the complaint. A complaint is a form that says how the person was hurt or how the dispute arose, who is responsible, and how much the damages are. A complaint must have at least one cause of action. A cause of action is a legal theory that is the basis for your lawsuit.

• For example, in a car accident case you may have a cause of action for general negligence and a second cause of action for negligence related to a motor vehicle.
• There are forms available for many common types of complaints, as well as causes of action, but not for all. Click to find the court forms. Some theories that might apply to your case may not have a form, and you will need to prepare a complaint based on one of those theories using guidebooks in your county law library, or get a lawyer to prepare the complaint for you.
• When you file your lawsuit, if there are more defendants whose identity you do not know, you can use the word “Does” to include them. You can amend the lawsuit to replace the “Does” with the names of the defendants when they become known to you.

Summons: Besides a complaint with its causes of action, you will need a summons form. The summons is a form notice that tells the defendant he or she is being sued and gives the time limit for responding. There are several types of summons forms, and you will need to figure out which one you need for your case. Click to find the court forms. It is very important that the names of the defendants appear on the summons exactly as you have them listed on the complaint.

Cover sheet: You will also have to file a Civil Case Cover Sheet (Form CM-010) for every case.

Local forms:  Most courts also require certain local forms to be filed when a case is started. Check with your local court for any forms that must be filed and served on the other side.

Once all your forms are prepared, you will need to file them in court to officially get the case started. Before you file any forms, make at least 2 copies of all your paperwork. Take the original of your documents and the copies to the court clerk in the courthouse where you are filing your case. The court clerk will file your papers and give you a case number. The clerk will keep the original of your papers and return the copies to you stamped “Filed.”

You will have to pay a filing fee to file your papers. The amount of the fee depends on what type of case you are filing and how much you are suing for. If you cannot afford the filing fee, you can ask the court for a fee waiver. If the court waives your fees, you won't have to pay. But if you win your lawsuit and collect money, the court may ask you to pay back the waived fees.

After you file your lawsuit, you have to let the defendant (or defendants, if you are suing more than one person or company) know that you are suing. This is called “service of process.” You have to have copies of all the papers you filed with the court “served” on every party in the lawsuit. This means you have to have someone (not you) 18 or older deliver a copy of the papers to the other side. When you serve someone for the first time in a case, like when the case is just starting, you usually have to serve him or her in person. Read the Service of Process section to find out how to serve the defendant.

The person who “serves” the papers has to fill out a proof of service, telling the court that he or she served the papers the right way. Then, make sure you file the proof of service with the court. There must be a proof of service for every party served.

In general, the defendant has 30 days to file a response to the lawsuit. If the defendant does not respond in time, the court can enter a default. This means that the defendant cannot contest the case unless he or she gets the default “set aside” or “vacated” (canceled). Once a default is entered, the plaintiff can ask for a default judgment against the defendant. The plaintiff can win and get a judgment for up to the amount that he or she asked for in the complaint. You have to follow some steps and fill out forms to do this. If there is more than one defendant, you will have to file a default for each defendant. If one defendant responds and another does not, you can only ask for a default against the one that did not respond.

Read Code of Civil Procedure section 585 to learn the rules for a default. If you get a default judgment, you have won. But the case may not be over yet if the defendant asks the court to set aside or cancel the default judgment.

5. If the Defendant Responds, your next step depends on how the defendant responded:

• If the defendant filed an answer or a general denial, there are a number of steps before the trial. It is important that you prepare your case carefully and follow all the court orders and notices that the court sends you. Go to Before the Trial for your next steps.
• If the defendant filed a demurrer or some other type of motion, you will have to file a reply to the motion and probably go to a court hearing. The procedures for responding to motions can be complicated and have strict time limits, so make sure you read the motion carefully and research those types of motions so you can reply the proper way. Code of Civil Procedure section 1005 states the time for filing and responding to most motions.