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I’ve Been Sued – Now What?

Real Estate Law Litigation by Simon Offord, Esq.

A few months after building a new fence around your Bay Area home, your neighbor storms over, complaining that he had a survey done and found out that the fence is on his property. The two of you cannot come to an amicable agreement, and the next thing you know you have been sued and served with a “Summons and Complaint.”

Once the initial shock/frustration/anger has worn off, you read the papers you have been served with and see in the first line of the Summons that you have 30 calendar days to file a “written response.”

The thought of having to respond to all the allegations in the Complaint in 30 days is very intimidating to some, as they assume that they have to lay out their whole case in mere weeks. Fortunately, the law does not require as much.

The most common response is an “Answer.” Typically, the Answer is a “general denial” that essentially denies everything in the Complaint. The Answer should also provide Affirmative Defenses. These defenses are all the possible defenses immediately ascertainable from what is known about the dispute.

A potential wrinkle is presented when the Complaint is “Verified.” A verified Complaint is signed by the Plaintiff under oath, who is verifying under the penalty of perjury that the Complaint is truthful and accurate. If the Complaint is verified, the Answer requires more detail, as you must respond separately to each allegation in the Complaint.

Another common response is a “Demurrer.” A demurrer tests the legal sufficiency of the Complaint. For instance, a demurrer can attack the complaint for uncertainty, misjoinder of parties, statute of limitation defenses, or facts insufficient to constitute a cause of action.

Finally, a party can respond by filing a “Motion to Strike.” A motion to strike can be used to reach defects not challengeable by a demurrer. Specifically, a motion to strike can be used to attack even single words or phrases in a Complaint (unlike demurrers).

How to respond to a Complaint can be a complicated decision and oftentimes will require a measured analysis of the Complaint and the assistance of an attorney.

At Brewer Offord & Pedersen LLP, we have extensive experience responding to complaints and protecting our client’s rights from the outset of litigation, and would be happy to assist you in choosing how to best respond in the unfortunate event that you are served. Contact our office at 650-327-2900 to set up an appointment with one of our attorneys to discuss your particular legal issue.

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