January 8th, 2009 jane
My grandfather (86 years-old!) is being sued for a breach of contract
for a unpaid debt. A copy of the contract identifies my grandfather
and another defendant who he does not know of purchasing a $30,000
piano, but my grandfathers' signature was obviously forged. An
attorney (which we cannot afford) says that he has to respond to the
complaint. The plantiff is being uncooperative! I will be writing his
response but I am not a lawyer. What affirmative defenses does he
have? Demurrer? How can I repond to the complaint when I do not know
the other defendant?Gracie,
I can help with this, but I need more information.
(1) Is the complaint signed by the plaintiff under penalty of perjury,
or is it just signed?
(2) When did this alleged transaction take place?
(3) When was your grandfather served, and how? (Personally, I assume?)
(4) What county is the action pending in; is it the same county where
your grandfather lives?
(5) Where did this alleged transaction take place? (Does the
complaint say? It may not.)
(6) Do you have any idea how your grandfather's name got into this, or
who may have forged it?
(7) What causes of action are alleged in the complaint? (Breach of
contract, common counts, quantum valebant, whatever, just name them.)
That's all for now. Remember, you only have 30 days after your
grandfather was served to file a response. I'll help as much as I
can, always remembering that "Answers and comments provided on Google
Answers are general information, and are not intended to substitute
for informed professional medical, psychiatric, psychological, tax,
legal, investment, accounting, or other professional advice." I can
point you in the right direction, but you really should see a lawyer
if at all possible.
Oh, one more thing -- does the complaint request attorneys' fees?First of all, thank you all for all of your help. Clarification is as follows:
1) yes, the complaint has been verified.
2) allegation took place in Dec 2002 (still within the Stat of Lim.)
3) he was personally served.
4) it is within the same county in which he resides (los angeles)
5) does not state
6) my grandfather has no idea, he has never heard of the plantiff or
other defendant
7) Breach of contract
8) complaint requested for reasonable attorney's fees
I have read a couple of nolo books and have done a lot of research on
the internet. I have a left week to answer and found that "Victim of
identity theft may seek an injunction against a creditor or debt
collector who pursues payment from the victim of a debt incurred by a
thief." Ca Civil code 1788.18. This code seems to outline what to do
- file a police report and FTC affidavid, etc.
Please let me know if you have any suggestions. I think I will proceed
by answering, then file a demurrer after my GF goes in and files the
police report and affidavid. I think he will be able to get by in
court with some coaching.Hello again, Gracie.
It's very good of you to go to all this trouble for your grandfather,
and I will help as much as I can -- but I will say again, you should
contact legal counsel. It may not be as much of a financial problem
as you might think, for reasons I'll explain below.
First -- the last paragraph of your clarification indicates some
confusion on your part about a demurrer. You CANNOT file an answer
first, and then a demurrer later. Let me explain why.
There are two basic kinds of "first-responses" to a complaint. An
answer is one kind. A demurrer is the other. (There are also such
things as motions to quash, and motions for change of venue, but those
are not about the substance of the complaint and don't appear to apply
in your case.)
A demurrer is a special response that claims that the complaint itself
is defective. NOT THAT THE COMPLAINT IS FALSE, but that the complaint
is DEFECTIVE. Essentially, a demurrer says, "Even if all you say is
true, so what?"
For example, if I were to file a lawsuit against you for wearing a
black T-shirt on Sunday, claiming that it caused me emotional
distress, your proper response would be to file a demurrer -- because
the complaint ON ITS FACE reveals that I have no claim. Another
example would be if I filed a complaint against you for breach of
contract, alleging that you failed to pay for something you bought in
1979. Okay, says the demurrer, let's assume that's true -- but the
complaint ON ITS FACE reveals that the action is time-barred.
From California Code of Civil Procedure Section 430.30:
430.30. (a) When any ground for objection to a complaint,
cross-complaint, or answer appears on the face thereof, or from any
matter of which the court is required to or may take judicial notice,
the objection on that ground may be taken by a demurrer to the
pleading.
(b) When any ground for objection to a complaint or
cross-complaint does not appear on the face of the pleading, the
objection may be taken by answer.
(c) A party objecting to a complaint or cross-complaint may demur
and answer at the same time.
http://caselaw.lp.findlaw.com/cacodes/ccp/430.10%2D430.90.html
What you are thinking of (I think) when you reference filing an
answer, and then later a demurrer, is actually what is called a
"summary judgment motion." But that's getting ahead of ourselves --
first we have to get an answer on file to prevent default.
An Answer is the correct procedure to respond to a complaint, deny the
charges, and assert whatever "affirmative defenses" you might have.
The Answer usually consists of two components -- first, denying the
allegations, and second, asserting defenses to those allegations.
(Just for clarity's sake: Technically, a "denial" is not the same
thing as a "defense."
To "deny" the allegation is to say that it isn't true; to assert a
"defense" is to say that, even if it is true, the plaintiff should
still lose for other reasons.)
In many cases, you can assert a "general denial," which is a single
statement that denies ALL of the "material allegations" of the
complaint. Something like, "Defendant denies, generally and
specifically, each and every allegation contained in the complaint on
file herein, and denies that the plaintiff suffered damage in the
amount claimed, or at all." And usually that's enough for the
"denial" part.
BUT NOT IN THIS CASE. Because the complaint was verified, the answer
also must be verified, and must SPECIFICALLY admit or deny EACH
allegation of the complaint. See Code of Civil Procedure Section
431.30; http://caselaw.lp.findlaw.com/cacodes/ccp/431.10-431.70.html
So it usually goes like this:
The complaint is usually broken down into numbered paragraphs. It
should also be broken down into sections, such as "General
Allegations," and "First Cause of Action for Breach of Contract."
EACH NUMBERED PARAGRAPH MUST BE SEPARATELY ADDRESSED, either by
admission, denial, or lack of information, as in: "Defendant lacks
sufficient information either to admit or deny the allegations
contained in Paragraph XX, and therefore denies those allegations on
that basis." (See Code of Civil Procedure Section 431.30(e).)
Sometimes it happens that there are mixed allegations contained in a
single paragraph, so that you can't either admit or deny the whole
thing. In that case, break it out: "Plaintiff admits the allegation
contained in Paragraph XX that he is a resident of Los Angeles County.
Plaintiff denies the allegation contained in Paragraph XX that he
eats kittens for breakfast."
It's a tedious, annoying process, but it's NECESSARY. Please note,
because this is vitally important: ANY ALLEGATION NOT DENIED IS
THEREFORE ADMITTED AND CONSIDERED IRREFUTABLY TRUE FOR THE PURPOSE OF
THIS LAWSUIT. See Code of Civil Procedure Section 431.20;
http://caselaw.lp.findlaw.com/cacodes/ccp/431.10-431.70.html
You must be EXTREMELY CAREFUL in what you admit and what you deny.
Now let's talk about affirmative defenses. These are difficult to
allege with specificity this early in the game, because you don't have
any facts yet. So the law allows you to be very general. Common
affirmative defenses in contract cases include:
STATUTE OF LIMITATIONS
Defendant is informed and believes, and thereon alleges, that
Plaintiff's action is barred by the provisions of CCP Section 337 (the
statute of limitations for actions based on a contract in writing)
Defendant is informed and believes, and thereon alleges, that
Plaintiff's action is barred by the provisions of CCP Section 338
(actions based on fraud)[Yes, I know no fraud was alleged, it's common
practice to include it anyway]
Defendant is informed and believes, and thereon alleges, that
Plaintiff's action is barred by the provisions of CCP Section 339
(actions based on contract not in writing)
Defendant is informed and believes, and thereon alleges, that
Plaintiff's action is barred by the provisions of CCP Section 343
(catch-all)
CONTRACT DEFENSES
Defendant is informed and believes, and thereon alleges, that
Plaintiff's action is barred by reason of his failure to perform his
obligations under the contract
Defendant is informed and believes, and thereon alleges, that
Plaintiff is barred from recovery by reason of his unclean hands
Defendant is informed and believes, and thereon alleges, that
Plaintiff is barred from recovery by the doctrine of laches
(unreasonable delay in filing his claim)
Defendant is informed and believes, and thereon alleges, that
Plaintiff's alleged debt should be offset against monies owed by the
Plaintiff to this answering Defendant.
Defendant is informed and believes, and thereon alleges, that the
alleged contract lacked consideration.
Defendant is informed and believes, and thereon alleges, that the
alleged contract is unenforceable and/or void as a result of
Defendant's lack of capacity to contract.
Defendant is informed and believes, and thereon alleges, that the
alleged contract is unenforceable and/or void because of Plaintiff's
undue influence upon this answering Defendant.
Defendant is informed and believes, and thereon alleges, that the
alleged contract is unenforceable and/or void because of Plaintiff's
misrepresentations to this answering Defendant.
Defendant is informed and believes, and thereon alleges, that the
alleged contract is unenforceable and/or void because of duress.
Defendant is informed and believes, and thereon alleges, that the
alleged contract is unenforceable and/or void because it violates the
public policy of the State of California.
Defendant is informed and believes, and thereon alleges, that the
alleged contract is unconscionable and therefore unenforceable.
Defendant is informed and believes, and thereon alleges, that the
alleged contract resulted from a mutual mistake.
THIS IS NOT AN EXHAUSTIVE LIST OF AFFIRMATIVE DEFENSES. THERE ARE
QUITE A FEW MORE.
For further reading:
http://www.stolar-law.com/CM/FSDP/PracticeCenter/Business/Contracts.asp?focus=topic&id=3
http://law.freeadvice.com/general_practice/legal_remedies/defenses_contracts.htm
Also, if you seriously, seriously intend to proceed with this on your
own, you might consider buying a California reference guide. There
are two very good ones.
Matthew Bender (owned by LexisNexis):
http://bookstore.lexis.com/bookstore/catalog?action=product&prod_id=57019&cat_id=J&pcat_id=60&pub_id=1
(Full disclosure: I am one of the contributing authors.)
The Rutter Group:
http://www.thelawbookstore.com/Merchant2/merchant.mvc?Screen=CTGY&Store_Code=T&Category_Code=TRG
(The "Civil Procedure Before Trial" is what you want.)
These are expensive, but cheaper than a lawyer.
At the end, the Answer should contain a "prayer," where you ask for
the Plaintiff to lose and you ask for whatever relief you're entitled
to. Now, this is VERY IMPORTANT in your case, because the Plaintiff
asked for attorneys' fees.
Most civil actions are governed by what we call "the American rule,"
which means that each party pays their own attorneys' fees, win or
lose. HOWEVER, where there is a contract between the parties that
says the losing party in a lawsuit has to pay the winning party's
attorneys' fees, the contract trumps the usual rule, and the winner
will get his attorneys' fees paid.
You might say now, "But there IS no contract! That's what we're
trying to prove!" And you're right -- but to your benefit, in this
instance, it doesn't matter. When the plaintiff CLAIMS that there is
a contract with an "attorneys' fees clause," that means that the
Defendant DOES get his fees EVEN IF HE WINS BY ESTABLISHING THAT THERE
WAS NEVER ANY CONTRACT TO BEGIN WITH.
It's only fair. You can't let a plaintiff get away with claiming
attorneys' fees if HE wins, but if he loses, saying "Nyah, nyah, there
was no contract so you don't get your attorneys' fees back."
So make SURE that your answer contains a request at the end for:
The complaint to be dismissed with prejudice;
Costs of suit herein incurred;
Reasonable attorneys' fees.
That's why I think you might have an easier time finding a lawyer than
you think. Essentially, a lawyer could defend you on a "contingency"
basis, where if he wins the case, he gets paid his attorney fees BY
THE OTHER SIDE. But you might have to look hard for a lawyer to take
this deal. I still recommend it, though -- litigation is HARD and
COMPLEX, with fairly rigid time-rules that trap even experienced
lawyers. I would NEVER recommend going to court without one.
The Answer must be signed by your grandfather under penalty of
perjury, and must then be filed at the Court and served (mailed) to
the Plaintiff's attorney (or the plaintiff himself if he is proceeding
without an attorney).
Anyway, I hope this has been helpful. I am deeply sorry for the trap
your grandfather is in -- it's horribly unfair for him to have to pay
a lawyer to defend against something like this, but that really is the
best approach right now. If I can provide any further assistance,
please don't hesitate to ask. Best of luck.#If you have any other info about this subject , Please add it free.# |
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