I often get phone calls at my office (Website; Email) from people who have been served with a summons and complaint, and need an attorney to represent them. Of course, I always ask them when they were served. I’m amazed at how often they tell me it was three weeks ago or more. Yikes! Usually the papers have been sitting on the desk or kitchen table, or just misplaced. “Why does it matter?” you may ask. Read on.
A summons is a court document by which the court orders you to appear before it in a proceeding. It is served with a copy of the complaint which has been filed against you, and sometimes with a few other documents. The complaint sets forth the facts and circumstances of the plaintiff’s action, as well as identifying the specific legal theories (or causes of action) which form the basis of the plaintiff’s case. In a civil lawsuit in California state court, once you have been properly served with summons and complaint you have just 30 days to file a formal response with the court (only five days in an unlawful detainer action!). In federal court a response must be filed within 20 days, but this post will focus on state court proceedings.
If you fail to file a timely response the plaintiff may take your default, and have a default judgment entered against you. This means you could be found liable to the plaintiff without having had the opportunity to argue your case! While a default can, in many cases, be set aside, it’s a cumbersome and expensive process. This is not a path you want to take, and consider the consequences if the court refuses to set aside the default.
Okay, so why can’t someone just pop into my office a few days before the response is due, pay me a retainer, and arrange for a response to be filed. Well, quite simply, because a response may require some investigation and research, and depending on the type of response which the circumstances require, it may also be necessary to file a lengthy or complex motion with the court.
A response can be as simple as drafting and filing an “answer” containing a general denial of the allegations of the complaint, along with what are known as “affirmative defenses,” which are defenses which must be set forth in the answer. But if the complaint is “verified” (the plaintiff swears under oath that the contents of the complaint are true), then the answer must likewise be verified. This is very time consuming since each and every allegation in the complaint must be separately responded to, and admitted or denied under oath. Great care must be taken in responding to a verified complaint, lest you mistakenly admit a fact which torpedoes one or more of your defenses!
In addition, if the complaint is defective in some manner, it may be best not to file an answer, but rather to file documents (such as a demurrer or a motion to strike) with the court challenging the deficiencies in the complaint. Or, service of summons may have been defective, which means that the defective service can be challenged by way of a “motion to quash.” Demurrers and motions can take many hours to research and prepare, and trying to rush the process in the space of a few days should be avoided.
As you can see, given the potential complexities of determining how to respond to the complaint, and the time it takes to properly prepare and file a response, waiting until the last minute to call an attorney is foolhardy, at best.
The best course of action if you have been served with summons and complaint is to immediately call an attorney!