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Civil Litigation -
Initial Challenges to the Complaint

Northern California Civil Litigation Information

One reason it is important to consult an attorney as soon as possible after receiving a summons and complaint is that the attorney may identify grounds to challenge the Complaint and possibly get it dismissed right away. If grounds exist for it, your attorney can file a "Demurrer" which is basically a motion to get the case dismissed because, for example, it is barred by the statute of limitations, or the Complaint fails to state a claim, etc. It is usually difficult to prevail at this early stage because the law allows plaintiffs a lot of leeway in their allegations. And courts will frequently allow the plaintiff to file an amended complaint to correct any deficiencies rather than dismiss the case entirely. Filing a demurrer can be expensive, and so the thing you want from your attorney is an opinion as to how it will realistically affect the case. For example, if it is likely the plaintiff will be allowed to file an amended complaint, then a demurrer might not be worthwhile. Also, your attorney might just write a brief letter to other attorney explaining the problem and asking that an amended complaint be filed in order to correct it. Often, the plaintiff's attorney will do that so both parties avoid the expense of a demurrer.

Your attorney might want to file a "Motion to Strike," which is directed to any allegations which are improper. For example, if a plaintiff alleges you are liable for punitive damages, he must allege specific facts which would support a finding of punitive damages. Thus, a bare statement in the Complaint that you are liable for punitive damages may be "stricken" from the Complaint by way of a motion to strike.

Another type of challenge to a Complaint is an "Anti-SLAPP Motion to Strike." In a nutshell, if the plaintiff's allegations against you arise out of a protected activity (e.g., your exercise of free speech in connection with a public issue), then the Complaint is potentially a "SLAPP Suit." (S.L.A.P.P. is an acronym for "Strategic Lawsuit Against Public Participation," a phrase thought up by a Colorado legal scholar.) An example of a "SLAPP suit" is a plaintiff (say a commercial developer) who alleges that you have defamed the developer while protesting the developer's plans to build a subdivision somewhere. Since the lawsuit arises out of your exercise of free speech in connection with a public issue (which you should be free to do without fear of a lawsuit being slapped against you), courts are required to examine the plaintiff's allegations at this early stage of the litigation to determine whether or not the lawsuit has enough merit to proceed. How much is "enough merit"? The plaintiff must demonstrate with admissible evidence (not just allegations), that he will probably (more likely than not) prevail on this claim. If the judge determines that the plaintiff has not demonstrated this, then the case will be dismissed and you will be entitled to your attorney's fees and costs incurred in filing the Anti-SLAPP motion. If you lose, the case will be allowed to proceed in its usual course. In the right situation, an anti-SLAPP motion can be a powerful strategy to resolve your lawsuit quickly and cost effectively (assuming you win and the plaintiff has money to pay your attorney's fees).

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