Stanislaus — How to File an Answer to a Civil Complaint for Breach of an Agreement

Source: https://www.stanislaus.courts.ca.gov/system/files/forms-and-filings/debt-collection-answer.pdf

SUPERIOR COURT OF STANISLAUS COUNTY SELF HELP CENTER

HOW TO FILE AN ANSWER TO A CIVIL COMPLAINT FOR BREACH OF AN AGREEMENT (CONTRACT)

(Revised 7/2013)

Material prepared and/or distributed by the Superior Court Clerk’s Office IS INTENDED FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY. Such material is NOT intended to be and IT IS NOT LEGAL ADVICE as to your specific case. IT IS NOT INTENDED TO TAKE THE PLACE OF COMPETENT LEGAL ADVICE FROM AN ATTORNEY. You are strongly advised to seek the advice of a licensed attorney before starting or completing your case in order to protect valuable legal rights that you may have and of which you may be unaware. Please contact a competent attorney of your choice or contact the LAWYERS REFERENCE SERVICE of the Stanislaus County Bar Association at (209) 571-5727 for a referral. The Clerk’s Office cannot give you legal advice.

KNOW YOUR OPTIONS?

A lawsuit for money based on a contract, loan or agreement is a civil action. The one who is bringing the lawsuit is called the plaintiff. The one who is being sued is called the defendant. If you are sued, you have several choices:

1. You can defend yourself by filing an Answer to the lawsuit in court. Special forms are used, which you can get from the court. You must file an Answer within 30 days of the date you are personally served with the Summons and Complaint.

2. You can choose to do nothing and allow the plaintiff to obtain a default judgment against you. A default means that you failed to answer the complaint in the time required by law. If a default is entered against you, you CANNOT defend yourself in the case. WARNING: a judgment against you could show on your credit report and result in a wage garnishment or other means of collection.

3. You can try to reach an agreement with the plaintiff. The Stanislaus County Superior Court offers Mediation services to assist the parties to resolve their issues with the help of a neutral third party. Mediation is a voluntary process in which a neutral third party, who is a trained mediator, meets with the parties to assist them in settling their dispute. For further information you may call The Stanislaus County Mediation Center at (209) 236-1577.

IMPORTANT: If you wish to explore this option it is advisable that you request an extension of time to answer the complaint confirmed in writing by the Plaintiff or attorney for the Plaintiff or file an Answer to prevent a default being taken against you.

FILING AN ANSWER TO THE COMPLAINT

Review the Summons

One of the papers you should have received is called a Summons. If you choose to respond to the summons and complaint you must do so within 30 days of the date you were personally served. The 30 days includes Saturdays and Sundays. Do not count the day you were given the lawsuit, but begin counting with the next day. If the 30 th day falls on a Saturday or Sunday, you can file the Answer on the following Monday.

To respond you must file a formal paper with the court. The paper is called the Answer. You cannot call the Clerk’s office to get extra time to file an answer in a civil case. Only the plaintiff or the plaintiff’s attorney can give you extra time (called an extension). If you are given an extension, you should confirm it in writing in a letter to the plaintiff or the plaintiff’s attorney and keep a copy of the confirming letter.

Review Your Insurance Polices

It is possible that the lawsuit is covered by your auto, renter’s, homeowner’s or other type of insurance. Take out your policy and review it. Your insurance company may cover your defense in some types of cases.

If you insurance company will cover your defense, make sure to deliver a copy of the Summons and Complaint to the insurance company immediately. Get a receipt from your insurance agent for delivering the lawsuit paperwork.

FILING FEES

Unless you qualify for a fee waiver the following fees will be due at the time of filing: • $225 if the complaint is asking for monetary relief up to $10,000 • $370 if the complaint is asking for monetary relief over $10,000 and up to $35,000 • $435 if the complaint is asking for monetary relief over $35,000

COMPLETING THE ANSWER FORM

All forms should be completed in type or printed clearly using blue or black ink. The first part of the form is called the caption box and looks like this:

YOUR NAME
YOUR STREET ADDRESS
YOUR CITY, STATE, AND ZIP CODE
YOUR TELEPHONE NUMBER

Write in “IN PRO PER”

WRITE IN THE NAME OF THE PLAINTIFF AS SHOWN ON THE
SUMMONS AND COMPLAINT

WRITE IN THE NAMED DEFENDANTS AS SHOWN ON THE
SUMMONS AND COMPLAINT

IF YOU HAVE BEEN SERVED WITH A COMPLAINT, CHECK THE FIRST
BOX AND WRITE IN THE NAME OF THE PLAINTIFF.
WRITE IN THE CASE NUMBER AS
SHOWN ON THE SUMMONS IF YOU HAVE BEEN SERVED WITH A CROSS COMPLAINT, CHECK THE
SECOND BOX AND WRITE IN THE NAME OF THE CROSS-
COMPLAINANT.

The next section of the form looks like this: WRITE IN YOUR NAME. IF THERE IS MORE THAN DEFENDANT LISTED IN THE COMPLAINT EACH MUST RESPOND, OR A DEFAULT MAY BE ENTERED AGAINST THE ONE WHO FAILS TO FILE AN ANSWER. TWO DEFENDANTS MAY SHARE ONE ANSWER FORM, BUT EACH MUST SIGN THE ANSWER AND PAY A SEPARATE FILING FEE.

FIRST LOOK AT THE LAST PAGE OF THE COMPLAINT WHERE IT IS SIGNED BY THE PLAINTIFF OR

THEIR ATTORNEY AND SEE IF THERE IS A “VERIFICATION”. IF NOT, YOU CAN CHECK BOX 3(a) GENERALLY DENYING ALL STATEMENTS CONTAINED IN THE COMPLAINT.

IF THERE IS A VERIFICATION, YOU MUST CHECK BOX 3(b) AND RESPOND TO EACH PARAGRAPH

OF THE COMPLAINT BY EITHER: IF YOU ARE ADMITTING ALL THE STATEMENTS IN THE COMPLAINT ARE TRUE, YOU ONLY NEED TO MARK 3(b).

IF YOU ARE DENYING ANY OF THE STATEMENTS IN THE COMPLAINT, YOU

NEED LIST THE PARAGRAPH NUMBERS OF THOSE STATEMENTS HERE UNDER 3(b)(1).

IF YOU DO NOT KNOW IF ANY OF THE STATEMENT IN THE COMPLAINT ARE

TRUE OR FALSE BECAUSE YOU DO NOT HAVE ENOUGH INFORMATION, THEN LIST THE PARAGRAPH NUMBERS OF THOSE STATEMENTS HERE UNDER 3(b)(2).

The next section of the form is at the top of page two and looks like this:

Last Name of Plaintiff vs. Last Name of Defendant
WRITE IN THE CASE NUMBER AS
SHOWN ON THE SUMMONS

ALTHOUGH MANY DEFENDANTS BELIEVE THEY HAVE A MORAL DEFENSE FOR NOT PAYING
A DEBT, SUCH AS LOSING A JOB OR A SPOUSE, THE LAW ONLY RECOGNIZES CERTAIN
KINDS OF LEGAL DEFENSES TO A LAWSUIT. AFFIRMATIVE DEFENSES ARE LEGAL
DEFENSES THAT RAISE NEW FACTS OR ISSUES NOT STATED IN THE COMPLAINT. IF YOU
WANT THE COURT TO CONSIDER YOUR LEGAL DEFENSES YOU MUST INCLUDE THEM IN
YOUR ANSWER.

MANY COMMON AFFIRMATIVE DEFENSES CAN BE FOUND ON AN ATTACHMENT LIST
INCLUDED IN THIS PACKET. I F YOU CHOOSE TO ATTACH ONE OF THE AFFIRMATIVE
DEFENSE LISTS, MARK THE BOXES NEXT TO THE DEFENSES THAT YOU BELIEVE APPLY TO
YOU AND PLACE THE ATTACHMENT BEHIND THE ANSWE4R FORM. BE SURE TO CHECK
THE “CONTINUED ON ATTACHMENT 4” BOX BELOW.

IF YOU BELIEVE YOU DO NOT OWE THE PLAINTIFF ANY MONEY AT ALL, AND THAT YOU
SHOULD NOT HAVE BEEN SUED, YOU CAN ASK THE COURT TO ORDER TGE PLAINTIFF TO
PAY YOU BACK THE COSTS YOU PAID TO THE COURT TO FILE YOUR ANSWER. YOU DO
THIS BY CHECKING BOX (B). I FYOU WANT THE COURT TO ORDER SOMETHING ELSE, YOU
CAN MARK BOX (C) AND EXPLAINT WHAT YOU WANT.

WARNING! IF YOU BELIEVE THE PLAINTIFF OWES YOU MONEY OVER AND ABOVE WHAT
THE PLAINTIFF IS SUING YOU FOR, YOU MUST FILE A CROSS-COMPLAINT IF YOU WANT THE
COURT TO ORDER THE PLAINTIFF TO PAY YOU MONEY. THE COURT CANNOT ORDER TH
PLAINTIFF TO PAY YOU MONEY OTHER THAN YOUR COSTS OF SUIT, BASED ON YOUR
ANSWER ALONE.

PRINT YOUR NAME SIGN YOUR NAME

SERVING THE ANSWER

Before you file your answer with the Clerk, a copy must be served on the Plaintiff or Plaintiff’s attorney. It can be served by mail but must be done by a person who is not a plaintiff or defendant in this case.

The server must then complete a Proof of Service by Mail as shown below:

Make two copies of the Answer, any attachments and the Proof of Service by mail. One copy is for the server to mail. Take the original and one copy to the clerk for filing.

PLD-C-010 ATTORNEY OR PARTY WITHOUT ATTORNEY (NAME AND ADDRESS): TELEPHONE: FOR COURT USE ONLY

ATTORNEY FOR (NAME): In Pro Per Insert name of court, judicial district or branch court, if any, and post office and street address: Stanislaus County Superior Court 801 - 10th Street, 4th Floor Modesto, CA 95354

PLAINTIFF:

DEFENDANT:

ANSWER—Contract CASE NUMBER:

TO COMPLAINT OF (name): TO CROSS-COMPLAINT OF (name):

1. This pleading, including attachments and exhibits, consists of the following number of pages:
2. DEFENDANT (name):

answers the complaint or cross-complaint as follows:
3. Check ONLY ONE of the next two boxes:
a. Defendant generally denies each statement of the complaint or cross-complaint. (Do not check this box if
the verified complaint or cross-complaint demands more than $1,000.)
b. Defendant admits that all of the statements of the complaint or cross-complaint are true EXCEPT:
(1) Defendant claims the following statements are false (use paragraph numbers or explain):

Continued on Attachment 3.b.(1).
(2) Defendant has no information or belief that the following statements are true, so defendant denies them
(use paragraph numbers or explain):

Continued on Attachment 3.b.(2).
If this form is used to answer a cross-complaint, plaintiff means cross-complainant and defendant means cross-defendant. Page 1 of 2
Form Approved for Optional Use Code of Civil Procedure, § 425.12
Judicial Council of California ANSWER—Contract
PLD-C-010 [Rev. January 1, 2007]

PLD-C-010 SHORT TITLE: CASE NUMBER:

ANSWER—Contract
4. AFFIRMATIVE DEFENSES Defendant alleges the following additional reasons that plaintiff is not
entitled to recover anything:

Continued on Attachment 4.
5. Other:

6. DEFENDANT PRAYS
a. that plaintiff take nothing.
b. for costs of suit.
c. other (specify):

. . . . . . . . . . . . . . . . . . . .
(Type or print name) (Signature of party or attorney)

PLD-C-010 [Rev. January 1, 2007] ANSWER—Contract Page 2 of 2

POS-030 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY

TELEPHONE NO.: FAX NO. (Optional):

E-MAIL ADDRESS (Optional):

ATTORNEY FOR (Name): SUPERIOR COURT OF CALIFORNIA, COUNTY OF Stanislaus STREET ADDRESS: 801 - 10th Street, 4th Floor MAILING ADDRESS: 801 - 10th Street, 4th Floor CITY AND ZIP CODE: Modesto, CA 95354 BRANCH NAME: Civil Division PETITIONER/PLAINTIFF:

RESPONDENT/DEFENDANT:

CASE NUMBER:

PROOF OF SERVICE BY FIRST–CLASS MAIL—CIVIL

(Do not use this Proof of Service to show service of a Summons and Complaint.)

1. I am over 18 years of age and not a party to this action. I am a resident of or employed in the county where the mailing took place.

2. My residence or business address is:

3. On (date): I mailed from (city and state): the following documents (specify):

   The documents are listed in the Attachment to Proof of Service by First-Class Mail—Civil (Documents Served) (form POS-030(D)).

4. I served the documents by enclosing them in an envelope and (check one): a. depositing the sealed envelope with the United States Postal Service with the postage fully prepaid. b. placing the envelope for collection and mailing following our ordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid.

5. The envelope was addressed and mailed as follows: a. Name of person served: b. Address of person served:

   The name and address of each person to whom I mailed the documents is listed in the Attachment to Proof of Service by First-Class Mail—Civil (Persons Served) (POS-030(P)).

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Date:

(TYPE OR PRINT NAME OF PERSON COMPLETING THIS FORM) (SIGNATURE OF PERSON COMPLETING THIS FORM)

Form Approved for Optional Use PROOF OF SERVICE BY FIRST-CLASS MAIL—CIVIL Code of Civil Procedure, §§ 1013, 1013a Judicial Council of California POS-030 [New January 1, 2005] (Proof of Service)

INFORMATION SHEET FOR PROOF OF SERVICE BY FIRST-CLASS MAIL—CIVIL

(This information sheet is not part of the Proof of Service and does not need to be copied, served, or filed.)

NOTE: This form should not be used for proof of service of a summons and complaint. For that purpose, use Proof of Service of Summons (form POS-010). Use these instructions to complete the Proof of Service by First-Class Mail—Civil (form POS-030). A person over 18 years of age must serve the documents. There are two main ways to serve documents: (1) by personal delivery and (2) by mail. Certain documents must be personally served. You must determine whether personal service is required for a document. Use the Proof of Personal Service–Civil (form POS-020) if the documents were personally served. The person who served the documents by mail must complete a proof of service form for the documents served. You cannot serve documents if you are a party to the action.

INSTRUCTIONS FOR THE PERSON WHO SERVED THE DOCUMENTS The proof of service should be printed or typed. If you have Internet access, a fillable version of the Proof of Service form is available at www.courtinfo.ca.gov/forms. Complete the top section of the proof of service form as follows: First box, left side: In this box print the name, address, and telephone number of the person for whom you served the documents. Second box, left side: Print the name of the county in which the legal action is filed and the court’s address in this box. The address for the court should be the same as on the documents that you served.

Third box, left side: Print the names of the Petitioner/Plaintiff and Respondent/Defendant in this box. Use the same names as are on the documents that you served.

First box, top of form, right side: Leave this box blank for the court’s use.

Second box, right side: Print the case number in this box. The case number should be the same as the case number on the documents that you served. Complete items 1–5 as follows:

1. You are stating that you are over the age of 18 and that you are not a party to this action. You are also stating that you either live in or are employed in the county where the mailing took place.

2. Print your home or business address.

3. Provide the date and place of the mailing and list the name of each document that you mailed. If you need more space to list the documents, check the box in item 3, complete the Attachment to Proof of Service by First-Class Mail—Civil (Documents Served) (form POS-030(D)), and attach it to form POS-030.

4. For item 4:

   Check box a if you personally put the documents in the regular U.S. mail. Check box b if you put the documents in the mail at your place of business.

5. Provide the name and address of each person to whom you mailed the documents. If you mailed the documents to more than one person, check the box in item 5, complete the Attachment to Proof of Service by First-Class Mail—Civil (Persons Served) (form POS-030(P)), and attach it to form POS-030.

At the bottom, fill in the date on which you signed the form, print your name, and sign the form. By signing, you are stating under penalty of perjury that all the information you have provided on form POS-030 is true and correct.

POS-030 [New January 1, 2005] PROOF OF SERVICE BY FIRST CLASS MAIL—CIVIL (Proof of Service)

Short Title: Case No.

Attachment 4 - AFFIRMATIVE DEFENSES Check all boxes that apply to your case

Ru nning of the Statute of Limitations The plaintiffhas a limited amount of time to sue you from the date the incident(they are suing you about) happened. Below are common time limits: a. Personal Injury 2 years from the injury or discovery(if injury in 2003). b. Oral Contract 2 years from the date the contractis broken. c. Written Contract 4 years from the date the contractis broken. d. Property Damage 3 years from when the damage happened.

For more information,see CaliforniaCode of Civil Proceduresections 312 and thosefollowingit.

Failure to State a Cause of Action Every lawsuitmust have at least one cause of action. A cause of actionis a legal theoryupon whicha lawsuitcan be based. Each cause of actionhas certainpartsthat must be writtenin the complaintand proved at trial. If you think the plaintiffhas not writtenany part of their cause or causesof action, you can use this defense.

Wa iver and Estoppel These twodefensesare closelyrelated. They are based on the conceptthat if someone“say s one thing but does another,” he or she may be held to whatwas firstsaid. If the plaintifftold or promisedyou somethingregardingthe money you are being sued for, and you relied upon the statementor promise, but plaintifffailed to honor it, these defensesmay apply to you.

Unclean Hands (only used in equity) The law requiresthose coming into the courtseeking justiceto do justicethemselves. This conceptis called “clean hands.” If you believe the plaintiffhas taken advantageof his or her own wrong doing in relationto the lawsuit,you may raise this defense.

Laches The law requirespeople to act promptlyto enforcetheir rights. If the plaintiffwaiteda long time to file a lawsuit,without having a good reason for the delay, and the delay has made it harder for you to defend the case, this defensemay apply to you.

Failure to Mitigate Damages Plaintiffsshould not be able to collectmoney from you if they could have preventedthe damage. For example, if you break a year long lease, a landlord is required to find a new tenantas soon as possible. You may still be responsiblefor the differencein the rent and the time the unit was not rented. But the landlord cannotjust wait out the year and then try and forceyou to pay the whole year’s rent.

Unjust Enrichment You can use this defenseif giving the plaintiffthe amount they requestin the lawsuitwould resultin the plaintiffreceiving more money than s/he is entitledto.

Prevention of Performance If you were preventedfrom doing your part of the contractby the plaintiffthis affirmative defensemay apply to you.

Act of God If you were preventedfrom doing your part of the contractdue to a naturaloccurrence(earthquake,flood, storm), this affirmative defensemay apply to you.

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Affirmative Defenses Attachment - Contract

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Short Title: Case No.

Discharge by Bankruptcy If you filed bankruptcy,and the claim you are being sued for was included in your bankruptcy,you may have been releasedfrom paying the claim when your bankruptcycase was over. Check with your bankruptcyattorneyto find out if the plaintiff’s claim was “discharged” or releasedby the bankruptcycourt. Include the bankruptcycase information including the date of dischargeand the case number. Case # ______________________, dischargedate: ___________.

Failure to Exhaust Administrative Remedies You may use this defenseif the plaintiffwas supposedto pursue differentadministrativeavenues but failed to do so before suing you. This defenseis most commonlyused by governmentagenciesor businesses.

Failure to Pursue Alternative Dispute Resolution (ADR) You may use this defenseif the person suing you failed to request mediationor arbitration as required before filing a lawsuit. CAUTION: If you think this affirmativedefenseapplies to you, and you wantto enforcean arbitrationclause in the contractwhichis the subjectof the lawsuit, filing an answeralone, withoutfiling a petitionto compel arbitrationat the same time, may cause you to waive your right to have the disputeresolvedthrougharbitration.You can get a form for filing a petitionto compel arbitrationfrom the court’s Self-Help Legal AccessCenter.

Lack of Privity You can raise this defenseif there was no contractor agreementbetweenyou and the person suing you, or the debt was not properlyassignedto the person suing you.

Statute of Frauds The “Statute of Frauds” is a law that requiresmany differenttypesof contractsbe in writing. There are some exceptions to the Statuteof Frauds, but if you think the claim the plaintiffis suing you for arose out of an agreementthat was required by law to be in writing,but was not in writing,this defensemay apply to you.

Parole Evidence Rule The law statesthat when people put their agreementsin writing,the writtencontracttakes priorityover whatever else is said in relationto the agreement. If the plaintiff’s claims are based on a verbal statementthat contradicts, or falls outside the writtentermsof the agreement,you may raise this defense.

Frustration of Purpose If enforcementof the actualcontractwould go againstthe very purposeof the agreementyou made with the person suing you, you may raise this defense.

Failure of Condition Precedent Sometimesone party’s performanceof a contractis dependanton someoneelse firstperformingan obligation,or somethingelse happening first. If someoneelse was required to do somethingbefore you had to performyour obligationsunder the contractbut failed to do it, or somethingwas required to happen before you had to performbut it did not happen, you may raise this defense.

Breach by Plaintiff If the person suing you broke their end of the contract first, and you believe you were thereforeexcusedfrom performing your part, you can raise this defense.

Anticipatory Repudiation If the person suing you cancelledthe contract, or pulled out of the deal before you had a chanceto performyour part of the contract, you can raise this defense.

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Affirmative Defenses Attachment - Contract

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Short Title: Case No.

Attorney’s Fees Not Recoverable The law only allowsthe winning side in a lawsuitto be reimbursedthe money they paid for attorney’sfees if the contract upon whichthe lawsuitis based says that the winning side can recoverattorney’sfees, or a statute (law) says the winning side can recoverattorney’sfees. If the plaintiffhas asked for reimbursementof attorney’sfees but there is no contractprovisionor law that entitlesplaintiffto recoverattorney’s fees, you can raise this defense.

Improper Notice of Breach You may use this defenseif the plaintiffdid not tell you before suing you that you were violatingthe termsof the contract,and thereforedenied you the opportunityto fix the problem. In this defense, noticeof breach may need to be required in the contract,and the other side’s failure to give you noticemust have deprived you of your opportunityto fix the problem.

Offset You may use this defenseif the plaintiffowesyou money, or the plaintifffailed to credityou for money you already paid.

Usury You may use this defenseif the plaintiffis charginghigher interestthan the law allows.

Accord and Satisfaction You may use this defenseif you and the plaintiffagreed to settlethe claim for a lower amount than the lawsuitis asking for and you have paid the lower amount.

Contract Void as Against Public Policy If the contractrequired a party to performan illegal act or to violate a law, then it may be unenforceable, and this defensemay apply.

CONTRACT FOR SERVICES ONLY

Failure of Consideration You may use this defenseif the person suing you never performedthe servicesthat they are suing you for.

Lack of Consideration You may use this defenseif the servicesprovided by the person suing you were so poorly performedthat any further paymentto that person would be unreasonableand unfair.

Breach of Express Warranty This defenseapplies if the person suing you failed to honor a promise or written warrantyfor services.

Breach of Implied Warranty This defenseapplies if the servicesprovided by the person suing you failed to meet the customand standardwithinthe industry.

CONTRACT FOR GOODS OR PRODUCTS (“Things”) ONLY

Failure of Consideration You may use this defenseif the goods or productsyou bought from the person or entitysuing you are completely defective.

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Short Title: Case No.

Lack of Consideration You may use this defenseif the goods or productsyou purchasedwere so defectivethat enforcement of the contract would be unreasonableand unfair.

Breach of Express Warranty This defenseapplies if the goods or productsyou purchasedwere defective,you requestedtheir repair withinthe written or promisedwarrantyperiod, and the plaintifffailed to make the repair.

Breach of Implied Warranty This defenseapplies if the goods or productspurchasedfrom the person or entitysuing you could not be used for the purposefor whichthey were sold. You tried to returnthe goods but the seller refusedto acceptthem.

No Deficiency Judgment Permitted by Law If the complaintis asking for money afterthe goods or propertythat served as collateralon a loan were sold, and the sale was not properly noticedor conducted,this defensemay apply. Plaintiff, or the person or entitythat assignedthe claim to plaintiff, is not entitledto sue for extra money afterthe sale of the goods or propertyif the law does not allow for a deficiencyjudgment, or there was impropernoticeof sale, or the sale was conductedimproperly.

Failure to Act in a Commercially Reasonable Manner If the person who is suing you failed to followthe proceduresrequired by the CaliforniaCommercialCode in selling you goods or products,this defensemay apply.

OTH ER DEFENSES :

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