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Naming Specific Defendants and Other Pleading Tactics

Summary: This blog, aimed at the audience of self-represented plaintiffs or plaintiffs’ attorneys in California civil lawsuits explains certain details of good pleading practices on complaints that help avoid demurrer and set the stage for possible judgment on the pleadings as to statute of limitations, as well as aid in discovery. Specifically, the complaint is supposed to identify by name which defendants the plaintiff seeks liability against for each cause of action alleged, and type allegations that are “ultimate facts” only. Examples of ultimate facts can be found in the California Judicial Council Civil Jury Instructions, which is known as CACI. The most recent version of CACI as of the time of publication was available at the website address:

https://www.courts.ca.gov/partners/317.htm⁠

DETAILS

Pleading is an art that is difficult to master. The purpose of the complaint includes putting the defendants on notice of the claims, as well as limiting what is “at issue.” CCP sects.

588, 589, and 590⁠

Other than avoid being subject to demurrer, meaning defeat due to legal imperfection, the goal of every complaint is to set the litigation stage for a plaintiff to obtain the optimal remedy in as few words as possible.

Almost all attorneys, and many self-represented litigants may know that the specific words comprising a complete cause of action that must be typed on the face of a complaint may be found in the California Judicial Council Civil Jury Instructions, nicknamed

CACI⁠

. Failure to type the proper words, or failure to make a material allegation of fact may result in the complaint being dismissed. CCP sect.

431.10⁠

However, self-represented litigants, and even attorneys, may not know that each cause of action is supposed to identify by name which defendant or defendants that plaintiff seeks liability against.

This may be overlooked, because in many lawsuits, plaintiff seeks liability on each cause of action against each defendant. In other circumstances, the defendants or their attorneys don’t care or don’t known the applicable rules.

However, under

Code of Civil Procedure section 430.30⁠

, a defendant may successfully demure to the complaint for uncertainty. Demurrer means that the complaint fails, and the case can be dismissed, risking total loss by plaintiff.

If a defendant can show that the facts alleged against that defendant for a particular cause of action cannot be true with respect to that plaintiff, the demurrer can be sustained.

The standard practice to identify specific defendants is to state the specific names in the cause of action heading, as well as state by defendant’s specific name or names against whom Plaintiff seeks liability.

For example, imagine a hypothetical case of an auto collision, where the plaintiff driver was struck by another vehicle that was making a turn, and did not yield to oncoming traffic. The plaintiff may allege negligence against the other driver, but also may allege products defects against the manufacturer of plaintiff’s automobile on the theory that the brakes were defective and caused plaintiff’s vehicle to not stop in sufficient time to avoid the collision.

The portion of the complaint presenting the heading for the cause of action for negligence might look like this. Note, no warranty or guarantee that these allegations are sufficient.

CAUSE OF ACTION ONE

(Motor Vehicle Negligence - Against Defendant David Driver)

Plaintiff re-alleges and incorporates all previous allegations by reference.

The statute of limitations for this cause of action is two (2) years.

As a material allegation of fact, Defendant David Driver had a duty to provide a standard of care of avoiding causing harm.

As a material allegation of fact, Defendant David Driver was negligent and thereby breached his duty to provide the standard of care by failing to drive in a manner required to avoid harming others.

As a material allegation of fact, Defendant David Driver’s negligent driving was a substantial factor in causing harm Plaintiff.

Thereby, Plaintiff demands judgment that David Driver is Liable for Motor Vehicle Negligence and states and prays for all damages caused thereby within the two-year period prior to the filing of this complaint and thereafter in an amount according to proof.

Note: See

CACI 2024⁠

Numbers 400 and 401, pages 232-238 [PDF pages 305-312]

The portion of the complaint presenting the heading for the cause of action for negligence might look like this.

CAUSE OF ACTION TWO

(Products Liability - Against Defendant Carla Carmaker)

7. Plaintiff re-alleges and incorporates all previous allegations by reference.

8. The statute of limitations for this cause of action is two (2) years.

9. As a material allegation of fact, Defendant Carla Carmaker manufactured and distributed the vehicle that Plaintiff was driving when struck by the vehicle driven by Defendant David Driver.

10. As a material allegation of fact, the vehicle manufactured and distributed by Defendant Carla Carmaker manufactured and distributed the vehicle that Plaintiff was driving was defective when it left Defendant Carla Carmaker’s control.

11. As a material allegation of fact, Plaintiff used the vehicle manufactured and distributed by Defendant Carla Carmaker manufactured and distributed in a reasonably foreseeable manner.

12. As a material allegation of fact, the defect that existed in the vehicle that Defendant Carla Carmaker manufactured and distributed and that Plaintiff was driving when struck by Defendant Driver’s vehicle caused harm to Plaintiff.

13. Thereby, Plaintiff demands judgment of liability against Defendant Carla Carmaker for Products Liability and states and prays for damages in an amount according to proof.

Note: See

CACI 2024⁠

Number 1201, pages 731-733 [PDF pages 805-807]

Comments on the sample pleadings

The heading of each cause of action is bolded, centered and labelled in ordinal numbered sequence

Under the heading, the cause of action is specifically named, and each Defendant against whom liability is sought for that cause of action is identified specifically by name.

The paragraphs are independently numbered in ordinal sequence.

The first paragraph of the set of paragraphs comprising the cause of action re-alleges prior facts.

The second paragraph states the statute of limitations. This is useful to defend against statute of limitations defenses, as well as seek judgment on the pleadings against a statute of limitations defense.

Each essential element paragraph starts with the phrase “ As a material allegation of fact.” Only the essential elements are labeled as such. This can assist in obtaining evidence supporting a defendant’s denial of material allegations of act that is asked by the California Judicial Council’s

Form Interrogatories - General⁠

, request 15.1.

As an aside, many attorneys and litigants do not realize that they may also propound the California Judicial Council’s For Interrogatories - Unlawful Detainer requests in addition to the general requests.

As required by Code of Civil Procedure section

425.10⁠

, each cause “demands judgment” and for money damages for the causes of personal injury and death does the sample allegations do not state the amount.

Note, “according to proof” may, or may not, suffice to meet the requirement to state damages for for money damages for the causes other than for. personal injury and death

CONCLUSION

Following best practices of pleading can assist throughout the case. Specifically naming defendants that plaintiff seeks liability against for each cause of action, both in the heading as well as in the allegations can help prevent demurrer. [CCP sect.

430.30⁠

]. Alleging each required ultimate facts derived from the CACI essential factual elements can help avoid demurrer. [CCP sect.

431.10⁠

]. Starting only the sentences that allege the essential elements of the cause of action with the phrase, “as a material allegation of fact,” can assist in obtaining evidence supporting a defendant’s denials in response to Form Interrogatories - General, number 15.1.

Following these best practices can save time and produce better outcomes.

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