Category: Litigation

Tara Burd

San Diego Civil Litigation Attorney Tara Burd | The Perils of Failing to Hire an Attorney After You’ve Been Sued

See My Who Is San Diego Civil Litigation Attorney Tara Burd says “As a general rule, once you have been served with notice of suit and provided a copy of the complaint filed against you, you must file a written response with the Court. Most commonly, you have a mere thirty calendar days to file your written response.” See CCP § 420.12.

If you fail to file your response in time, the other party may prevail against you and receive what is known as a “default judgment.” There are legal mechanisms to cure a default judgment (i.e., obtain relief from a default judgment), but the best course of action is undoubtedly to avoid defaulting in the first place, if possible. Like all orders, defaults are enforced rigidly. Even though you may have never appeared or presented any counter arguments to your opponent’s claims, you will be liable for the damages assessed by the Court. In other words, you will be bound by the Court’s order and responsible for paying that which the Court has awarded your opponent(s).

Should you fail to abide by the Court’s order and pay the judgments to which you are bound, the other party can enforce the Court’s awards against you. This means you could be subject to wage garnishment, liens against your property, and other financially disastrous consequences.

Avoiding these consequences requires a good responsive pleading. In order to avoid the perils associated with defaulting, you should file a proper, timely response. Not just any type of response will do, and the Courts have basic guidelines concerning the form your response must take. Most often, the applicable rules can be found on your Court’s website. It is very important that you follow your Court’s rules in responding, as there are consequences for failing to file in a timely fashion and for failing to ensure that your response follows the proper form. Again, an inadequate, improper, or untimely response may result in the opposing party obtaining a default judgment against you.

Legal proceedings turn on the facts unique to the case before the presiding court. Accordingly, the unique facts surrounding your case should dictate the manner in which you choose to respond to the allegations being leveled against you.

This article examines three of the most basic responses are: the Answer, the Motion to Strike, and the Demurrer.

Providing an Answer to the Pleadings

The Answer is the Defendant’s opportunity to challenge and controvert the Plaintiff’s allegations in the Complaint. The Answer serves the purpose of filtering out matters that are either immaterial or simply not at issue.

In terms of the Answer’s form, the Defendant may respond to the Plaintiff’s allegations by admitting, denying, or claiming she lacks knowledge of the facts giving rise to the substantive allegations.

In addition to admissions and denials, the Answer should also contain any affirmative defenses the Defendant wishes to assert. An example of an affirmative defense when Defendant failed to make a payment, because he had a good reason to such as a Plaintiff’s failure to properly perform.

Attacking the Pleadings with a Motion to Strike

Motions to strike can be used to attack a pleading in its entirety, or can be used to attack specific parts of the pleading. The grounds for the motion to strike are to strike any “irrelevant, false or improper matter inserted in any pleading” or to strike any pleading in whole or in part “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” CCP § 436.

As long as it is filed in a timely fashion, a motion to strike constitutes a general appearance and prevents the entry of a default judgment. This means that the Defendant may wait to file an answer while the motion to strike is pending.

Attacking the Pleadings with a Demurrer

Demurrers are used when pleadings are so defective that it makes defending against them unnecessarily difficult. Often this is the result of the vague pleadings, or pleadings so loosely tied to fact that discerning their meaning proves difficult. The demurrer acts as a test of the legal sufficiency of other pleadings, raising issues of law (not fact) with the substance or form of the pleading it is attacking.

These are just the basic concepts of responding to a lawsuit. Deciding which approach to take and which are the most effective require experience understanding your case and the local court system.

For more information visit Tara Burd’s Who Is Page here in the Journal

San Diego Civil Litigation Attorney Tara Burd
You may contact her at her office
T.Burd Law Group
945 Fourth Ave., #307
San Diego, CA 92101
Or by telephone 858-215-2873

San Diego Professional Journal
2830 Keats St., Suite F San DiegoCA92106 USA 
 • 619-870-0097
Tara Burd

San Diego Civil Litigation Attorney Tara Burd | Ignore Itches Not Lawsuits

See My Who IsSan Diego Civil Litigation Attorney Tara Burd says “One common way of dealing with problems is to just ignore them.”

That works for some problems. Ignore the itch in your shoe and it might just go away.  Ignore an annoying passenger on the bus or train car and eventually you will get off.  Ignore a legal proceeding against you and you could face a judgment against you, attorneys fees, penalties, interest, a lien on your home, and wage garnishment.  It’s a really really bad idea to ignore a lawsuit.  People know this, and do it anyway.  Then they get served with a lien or wage garnishment and run to the attorney to undo it.  Run fast, because the clock is ticking on any opportunity to undo a final court order.

To begin with, understand that an appeal probably cannot fix a default judgment.  An appeal asks the appellate court to review an underlying case and determine whether there was a mistake on the law and whether this mistake affected the final outcome.  An appeal does not rule on the merits of the case (except for in small claims court.) An appeal does not allow the appellant to make an emotional plea for a second chance.  A defendant who failed to show up for court in response to an initial action does not have grounds for an appeal.

Instead a defendant who discovered he has a judgment against him will need to ask the court to vacate or set aside his judgment. (CCP § 663.). In short, a party may be entitled to a different judgment if the original judgment was based on an “[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts…”. This makes sense for a litigant who was actively involved with the case and received a unfavorable ruling by judge or jury.  It doesn’t make much sense for a party that ignored the problem.

The Civil Code of Procedure also authorizes relief from judgment on grounds of mistake, inadvertence, surprise, or excusable neglect.  (CCP § 473(b).)  However, it requires that a motion be made within 6 months of judgment.  With proper notice, that time is reduced even further.

Tara also offers some hope: “This does not mean that it is impossible to overturn a judgment after it has been entered in every circumstance.  There are certainly situations in which a judgment was improperly taken.  Some examples include an action taken without proper service; brought in the wrong jurisdiction; and entered against active military personnel.”

For those individuals who truly were unaware of the pending litigation against them, there may be a remedy.  But it is not sufficient to ignore the problem then ask the court for forgiveness once the reality of the repercussions sets in.

For more information visit Tara Burd’s Who Is Page here in the Journal

Tara Burd San Diego Civil Law Attorney
You may contact her at her office
T.Burd Law Group
945 Fourth Ave., #307
San Diego, CA 92101
Or by telephone 858-215-2873