This series applies to California lawsuits only. For rules related to lawsuits in any other state, visit the website for your state’s courts. This is a very broad overview. Multiple considerations must take place and detailed analysis goes into each step. Please consult a lawyer for help with your particular case.
Below is an infographic chart with an overview on filing a civil lawsuit in California. This article discusses step one, the actual filing of a civil lawsuit.
Before Filing a Civil Lawsuit
I almost always recommend communicating with the other side and working together to find a win-win solution to a problem before going the civil lawsuit route. Sometimes you can do that yourself but other times you may need a California business lawyer or a civil litigation attorney to step in help you negotiate a solution. If that doesn’t work and you hit an impasse, you may have no other option but to file a civil lawsuit (or let it go).
Be prepared, because lawsuits are expensive.
How do I sue someone?
1. Hire a Lawyer – Lawsuits are very deadline driven and if you miss a deadline, you may blow your chances of achieving your objectives in the lawsuit. A lawyer will also know what legal theories of liability are appropriate based on the facts and documents you provide.
2. Draft and File a Complaint – Once you’ve hired a lawyer, she/he will draft a document called the Complaint. Broadly, the Complaint tells the court and the other side what your claims are, the damages you suffered, and the remedy you seek. Generally, in a civil lawsuit, this will be a request for money. However, the request may also be for declaratory relief or an injunction.
The Complaint must meet numerous requirements in order to withstand various challenges by a defendant such as lack of jurisdiction (this court doesn’t have the power to hear this case) or improper venue (this court is not the right place to file this case). Each legal theory is set out in a “cause of action” and must make certain allegations in order to pass muster. Here is a form complaint for a simple breach of contract lawsuit.
Once the Complaint is drafted, it must be filed in the proper court along with payment of an initial filing fee.
What to do after filing a civil lawsuit in California?
Serve a Summons and Complaint – Your attorney will usually submit a Summons with the Complaint. Once the court issues the Summons, that document must be served on each defendant along with a copy of the Complaint. The Summons notifies defendants that they have been sued and the deadline for the defendant to respond to a civil lawsuit, including the consequences if the defendant fails to respond to the civil lawsuit.
Like everything else in a civil lawsuit, there are detailed rules on who can serve a Summons, who can accept service of a Summons (differs depending on whether defendant is a person, a corporation, a partnership, etc.), and how to serve the Summons (in person, by mail, and/or by publication). Except in certain situations, the complaint for a California lawsuit must be served on all named defendants, and proof of service filed with the court, within 60 days after filing the complaint. [CRC 3.110(b)]
File a Proof of Service – A proof of service lets the court know that plaintiff served the defendant with the Summons and Complaint, when the Summons was served, where it was served, how it was served, and by whom.
Mistakes at any step of the way could be costly. At the very least, consult with an attorney. I am happy to answer your questions, e-mail me or call (949) 529-0007.
Next up, learn about Responding to a Lawsuit in California.
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