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Before You Sue - Information for the Plaintiff

This page helps you file a civil case, and tells you about:

  1. Things to think about before you sue
  2. What are Summons and Complaint?
  3. Where do I file my lawsuit?
  4. How do I serve the defendant?
  5. What happens if the defendant doesn’t answer?
  1. Things to think about before you sue:

    If you were wronged, you have the right to sue. But, there are things you have to know before you sue, like:
     
    • Who to sue,
    • Where they are,
    • What you need to do before you sue them,
    • Where you should sue them, and
    • If you should sue them.

    These are hard questions to answer, even in an easy case like a slip-and-fall in a store. For example, if you slip on the floor in a supermarket, you have to figure out if the store is part of a chain or just one store, if falling was partly or totally your fault, etc.

    In a complicated case, like if the same slip and fall happened on land that the county owns, but that a government agency rents, you have to figure out who was responsible for slippery ground, and follow the laws for suing the government. If you sue a government agency, you have to follow the laws for notice. This is a fancy way of saying that before you sue a government agency you have to fill out papers that say that you’re suing them.

    There’s a time limit to give notice. After you file your notice, you don’t have much time to file your lawsuit. Claim limits like this protect hospitals and other businesses. If you do not follow these rules, get ready to fight. If you don’t do things on time, you may lose your right to sue. You could ruin your lawsuit.

    Even more important are time limits called "statute of limitations." These statutes, or laws, say when you can file your action. If you don’t file on time, you lose automatically. For example, if you are in a car crash, you have 2 years to file a lawsuit. This might not be true for your case. You have to check the time limit yourself. But in general this is the case. If you wait one day after the time limit, the Court won’t let you sue, except in very special circumstances.

    This means that even if you have a good case, you lose because you didn’t file on time. The person you sue can challenge you at any time. They can appeal and win. That’s because the statute of limitations says if the Court can hear and decide the case at all. If you wait too long, you take away the Court’s jurisdiction to hear your case.

  2. What are Summons and Complaint:

    A general civil lawsuit starts when the plaintiff files 2 forms.

    A Summons is a notice that says there’s a lawsuit.

    A Complaint is a form that says how the person was hurt, who hurt them and how much the damages are.
     
  3. Where do I file my lawsuit?

    There are a lot of things to think when you decide where to file your complaint. For example:
     
    • Jurisdiction:

      Jurisdiction can mean more than one thing. The Court has to have “jurisdiction” over the defendant. This means that the Court has the right to hear and decide a case for the person you are suing. In general, you have to file your lawsuit where the injury happened, or where the contract was supposed to happen, or where the defendant lives.

      There can be other requirements. Check the California Code of Civil Procedure .

      Then, the Court also has to have jurisdiction over how much money you want. You have to file your lawsuit in the right court:
       

    • Venue:

      Jurisdiction says in what State and what Court you file your lawsuit. Venue is the County where you file your action. Usually, this is the County where the defendant lives or where the injury happened. But, sometimes you can change the Venue. See Law and Motion.
       
    • Court locations/hours/maps:

      See the list of courthouses. Click on each court to see the hours and maps.

    • Unlimited Jurisdiction cases:

      If you have a case worth more than $25,000, you have an unlimited jurisdiction case. For these cases, you have to give the Clerk:
       
      • The Complaint, or petition,
      • A Civil Case Cover Sheet ,
      • The filing fee (see the local fee schedule ), and
      • An original copy of the Summons.

        The Clerk will endorse the Complaint, the Cover Sheet and the Summons, and give them back to you with something called a “Civil Lawsuit Notice”. This tells the date and time of your first Court hearing, and which Department (courthouse and courtroom) and Judge your case is assigned to.

        You’ll also get an ADR (Alternative Dispute Resolution) Information Sheet and a receipt for your filing fee. If you file your case on something called pleading paper instead of on a complaint form, your papers must follow the Rule of Court 2.100-2.119 .  

    • Limited Jurisdiction cases:

      If your case is worth more than $10,000 but less than $25,000, you have a limited jurisdiction case. You have to file the same forms as Unlimited jurisdiction cases. And, your papers have to be numbered at the bottom of every page. The front page has to say, "demand exceeds $10,000.00" or "demand does not exceed $10,000.00". The front page also has to say "Limited Civil Case."
       
    • Civil Case Cover Sheet:

      You have to file a Civil Case Cover Sheet for every case. This is a form you put in front of all your papers. The number of this form is CM-010. Click to download the Civil Case Cover Sheet .

    • Fees & fee waivers:

      The Court has to charge you to file papers. This helps them pay for running the court. How much you pay depends on the paper you file. (Check filing fees on the local fee schedule .)

      If you qualify, you can ask the Court for a Fee Waiver . This means you won’t have to pay to file. Look at the California Rules of Court 3.50-3.63  to see if you qualify. To learn more about fee waivers, read the information sheet on the state court website - click to see Fee Waiver Information Sheet . You can access the Fee Waiver Form  here. You can also see our sample fee waiver packet .

  4. How do I serve the defendant:
     
    • What is Service of Process?
    • How do I serve the defendant?
    • Who can serve the defendant?
    • Proofs of Service
       
    • What is Service Of Process:

      After you file your lawsuit, you have to let the defendant know that you are suing them. Usually, the defendant knows about the case a long time before it starts. Hopefully you talked to the defendant and tried to settle the case before you filed.

      But, now that you filed the lawsuit, you have to let the defendant know formally that you are suing. This is called "service". You have to have all papers "served" on every party in the whole lawsuit.

      To start your case, you have to have the defendant served with a Summons, Complaint and Civil Lawsuit Notice.  You can serve these 3 papers together.
       
      • The Summons: This is a one-page form. It’s easy to recognize because it says "NOTICE: You are being sued" at the top of the form. Click to access the summons form (SUM-100) .
         
      • The Complaint: Says "Complaint" on the front. This tells the defendant what you are complaining about. There are two complaint forms to chose from depending on the type of complaint being filed:

        1. Form PLD-C-001  - Complaint--Contract; or
        2. Form PLD-PI-001  - Complaint--Personal Injury, Property Damage, Wrongful Death.  
      • The Civil Lawsuit Notice (Local Form CV-5012 ): Says the date of your first court hearing. You must serve a copy of the Civil Lawsuit Notice on all the defendants named in the complaint.

    • How do I serve the defendant?

      There are 3 ways to "serve" the defendant with papers to start your case:

      • Personal service:
        Personal service means that someone gives the Summons and Complaint to the defendant.
         
      • Service by mail:
        This means that someone mails the Summons and Complaint to the defendant. And,
         
      • Service by publication:
        This means that you publish the Summons and Complaint in the newspaper that the defendant’s most likely to read. You have to ask the Court’s permission to do this. Usually you have to try personal service a few times first.

      Remember: You can’t serve the defendant!

      Read How to Serve Someone in Jail or Prison  if you need to serve papers to someone in custody in California.

    • Who can serve the defendant?

      If YOU are the plaintiff, YOU cannot serve the defendant. The server can be a:  
      • Friend,
      • Co-worker,
      • Relative, or
      • Anyone over 18 who isn’t part of the case, except you.

      You cannot serve the defendant!

      The Court likes you to use Personal Service. It’s more reliable and the Court can ask the server questions if there’s a problem. The process server can testify to say what day and time they served the defendant. Sometimes you can serve someone else instead of the defendant. There are special rules to do this. (Look at the California Code of Civil Procedure .)

      Service by Mail is much easier. But, it’s much less certain. It depends on the mail service you use, and you don’t know who delivers it. So, the Court can’t ask anyone questions if something goes wrong.

      The Court doesn’t like Service by Publication as much as the other kinds of service. But, it’s still a legal way to serve someone. You have to follow special rules for service by publication. Usually, you have to try personal service a certain number of times, and then ask the Court for an order to let you to serve by publication. To find out what rules to follow, look at:  

      Proofs of service:

      After you serve the papers, you have to file a Proof of Service. This shows the Court that you served the forms. You can get a Proof of Service at bookstores, printing companies or at the Law Library .

  5. When happens if the defendant doesn't answer
     
    • When can I get a default judgment?
    • How do I ask for a default?
    • Clerk’s judgment
    • Court judgment by affidavit and hearing
       
    • When can I get a default judgment?

      In general, the defendant has 30 days to answer. If the defendant doesn’t answer in time, the Court can enter a default judgment.

      A default judgment can only be obtained in an Unlawful Detainer case for possession. You have to follow some steps and fill out forms to do this. See CCP 585  to learn the rules for default.

      You can get a default in a lot of cases, like a case that asks for money damages. But, you can’t get a default judgment in these cases:
       
      • Actions to decide the owner of real property,
      • Small claims actions,
      • Unlawful detainers,
      • Dissolution of marriage, or
      • Dissolution of a corporation.

      There are other times when you can’t get a default. For example, you can’t get a default against a defendant who is bankrupt, an indigent defendant in jail who doesn’t have a lawyer, or someone in the military. The defendant can answer service in a way that will stop you from getting a default.

      The defendant can file:

      • An answer, or
      • A general denial, or
      • A demurrer, or
      • Different kinds of motions, like a motion to transfer or motion to quash, etc.

      To learn more, see Information for the Defendant: I’ve Been Sued


    • How do I ask for a default?

      If you serve a defendant and they don’t answer at all in 30 days, you can ask for a default judgment. To ask for a default you have to file these forms:
       
    • Clerk's judgment:

      After the clerk gets your request for default with your forms attached, the clerk will enter a default if the defendant hasn’t filed an answer. The next step is to get a date for the default hearing with a judge.
       
    • Court judgment by affidavit & hearing:

      You can fill out your Request for Default Judgment on the same form as the Request for Entry of Default, Form CIV-100 . The Judge who hears your default will look over your forms, and if everything has been done, will enter judgment.

      The judgment can be for as much as you’re asking for, but never more than that. That's why it’s important to make a list of all the damages you’re asking for in the complaint or the statement of damages. The Court won’t give you damages if you don’t ask for them on your forms.

More information for the Plaintiff:

© 2014 Superior Court of California, County of Santa Clara