Motions and cross-complaints

Other options to respond to a Complaint and Summons

To argue something is legally wrong with the Complaint

If something is legally wrong with what's in the Complaint, the defendant can ask the court to cancel all or part of the case. Two more common examples of this type of request are a demurrer and a motion to strike. 

• A Demurrer 

  A Demurrer is filed to say the Complaint doesn’t include all the legal requirements that the plaintiff needs to meet to win. Sometimes, in a demurrer, you argue that even if what the plaintiff says is true, they should lose because they did not meet a legal requirement. For example, you could argue that the plaintiff should lose because they filed the lawsuit after the deadline (statute of limitations).

• Motion to Strike

  This asks the court to take something out of the Complaint because it is not understandable, it is repetitive, it isn't legal, or it doesn't matter. This motion can help to limit what the case is about so you do not have to defend that part of the case.

In general, before a demurrer or a motion to strike can be filed, the law requires that the two sides try to solve the issue either in person or by phone. This is called "meet and confer."  Code of Civil Procedure section 430.41 and 435.5.

If the two sides cannot reach an agreement, the defendant has to file and serve the demurrer or motion to strike within the deadline (usually 30 days) for responding to the Complaint. The other side then gets a chance to file a response before a court date where the judge will make a decision. The person who brings or files the demurrer or motion can also file a reply before the hearing date, responding to what is in the opposition.

The Summons and Complaint were not served properly

If a defendant thinks the other side did not have the Complaint and Summons properly served, they can file a motion to ask the judge to cancel (to quash) the service. This is called a motion to quash service of summons. If the judge decides in the defendant's favor, the plaintiff will have to have the defendant served properly (if possible) before the case can go forward. Because having the lawsuit papers served again usually is not a major problem, a motion to quash service may not be worth the effort to file. But there are cases where it makes sense.

This type of motion must be filed instead of an Answer or other response. When a defendant files an Answer or other response, they give up (waive) their right to challenge service. If the judge decides that service was proper, then the defendant gets a new deadline and a chance to file an Answer or other response.

Get legal help to decide if these are the best options in your case 

Even if a defendant wins one of these motions, the plaintiff may be able to fix their mistake or even make it stronger. For example:

• If the plaintiff did not put something in their Complaint that's required, they can change (amend) their Complaint to meet the legal requirement. 
• If something is struck from the complaint, the plaintiff may be able to file an amended complaint to fix an issue.
• If a defendant wins a motion to quash service of summons, the plaintiff may be able to serve them properly at a later date. So, the case only ends up being delayed. 

In either case, the defendant would still need to file an Answer to defend themselves. On the other hand, there are times when these are the best option. A lawyer can help you better understand these options and the likely outcomes.

Cross-complaint

Suing someone else who may be at fault

A defendant can sue the plaintiff back, or even sue another defendant in the case. If there's someone else who is not part of the case they think is responsible, they can sue them as well and have them be part of the case. This is called filing a cross-complaint. 

In some situations, a defendant must file a cross-complaint or else they lose the right to make that claim later, even in another lawsuit. These types of claims are called compulsory. It's important to understand this rule if you think someone other than you is at fault, but are not sure if you want to sue them.

A cross-complaint generally should be filed before or with an Answer. A response to a cross-complaint generally must be filed within 30 days of being served with the cross-complaint. Code of Civil Procedure 432.10. If you learn later that you need to file a cross-complaint you can make a motion to ask for an order allowing you to file a cross-complaint.  The other parties in the case may even agree.  If you wait too long you may lose the option of bringing a cross-complaint.

Where to get help 

A law library or lawyer is a good place to start

Writing a motion, or responding to one, usually takes a lot of legal research. There are statutes, statewide Rules of Court, and local rules (rules a local court makes) about the format, content, timing, and process for making or responding to motions. There are generally no forms for the motion. You will need to prepare your own papers.  There are usually forms you can use to file or answer a cross-complaint. But, you will need to research the law first about who you can sue back or include in your lawsuit.

• You may be able to get help with the research and finding the statutes, forms, and rules at a local law library. The Sacramento Law Library also has a general guide on Responding to a Lawsuit that include more resources and instructions.
• Check if your Self-Help Center helps with these kinds of cases or has information about other local resources.

The start of a case is when talking to a lawyer can be the most helpful. They can give you a general sense of what to expect and what the case may involve. They can also help you weigh different options.