Abstract of Judgment: A
summary of the final decision of a court. This abstract
is often used by court-related agencies in the course of
their business. In civil, an abstract is issued and recorded
at a county recorder creating a lien against real property
located within the county.
Amend:
To add to or alter a charge that has been filed.
Amended
vs. Amendment: In general civil, an amended document
replaces the prior document. For example a first amended
complaint supersedes and replaces the prior complaint. We
do not remove the original document since it is part of
the court record, but the amended complaint supersedes it.
The filing party can amend any part of the prior document
including adding or removing parties to the action. Generally
the body of the document is changed as well. An amendment
is filed to correct a name or replace a fictitious name
with an actual name as in a Doe amendment. The amendment
adds or replaces only a portion of the document.
Answer:
A written statement made by the defendant in a civil case
in response to charges or complaints filed.
Arbitration:
The submission of a matter to an impartial (third) person
chosen by the parties, called an arbitrator. The arbitrator
is usually an attorney or retired judge, who is empowered
to render an award, thereby avoiding the formalities, delay,
and expense of litigating the cause in the courts. However,
arbitration is not always binding so if the parties do not
agree with the award they may file a Request for Trial de
Novo and continue to proceed with their case in the court.
Bankruptcy:
A court proceeding wherein a person or company cannot pay
his/her debts and a petition for bankruptcy is filed with
the Federal Courts. A bankruptcy filing imposes an automatic
stay preventing debt collection until the case is decided.
If the petition is granted, the debts, except those that
are exempt, are discharged and cannot be collected. If the
bankruptcy is dismissed prior to the order granting discharge
the debts may be collected. What is relevant to civil cases
is that the civil case is stayed as to the debtor or debtors
that filed bankruptcy and will not proceed as to those particular
parties unless the stay is lifted by court order or dismissal
of the bankruptcy. A Notice of Discharge of Bankruptcy means
the bankruptcy was completed and the debts were discharged.
Blocked account: An interest-bearing bank
account established for a minor, upon order of the court,
in which money from a settlement, award, judgment or other
source is placed. Withdrawal of any portion of the funds
is blocked except upon application to the court, and an
order thereon, to protect the interests of the minor until
the age of majority is reached.
Certificate
of Assignment: A document wherein the party filing
a new petition or complaint certifies (declares under penalty
of perjury) that the court in which the pleading is being
filed is the correct venue for the action.
Civil
Case: An action brought by a person or party to
recover property, to force someone to honor a contract,
or to protect one’s civil rights.
Civil
Case Cover Sheet: A document used for the collection
of statistics. It is not generally filed in the case unless
the case is to be designated complex. If the filing party
indicates on the cover sheet that the case will be complex
it must be served, otherwise it is just collected for monthly
statistics rather than filed in the case.
Complaint: A document submitted by the
plaintiff, usually prepared by an attorney, which lists
and describes 1) alleged offenses committed by the defendant;
2) the ramifications; and 3) the desired conditions for
correction of such offenses. The complaint consists of a
caption, the body of the complaint, which sets forth the
parties, history and alleged offenses, and the prayer. The
prayer is the part of the complaint in which the party must
expressly “pray” for each legal remedy that
is desired. If the remedy is not prayed for it is usually
not included in the judgment.
Complaint
in Intervention: A complaint filed to intervene
takes place when a third person is permitted to become a
party to an action or proceeding between other persons,
either by joining the plaintiff in claiming what is sought
by the complaint, or by uniting with the defendant in resisting
the claims of the plaintiff, or by demanding anything adversely
to both the plaintiff and the defendant. The intervenor
must apply to the court and be granted leave to intervene
prior to filing the Complaint in Intervention.
Coordination:
The act of joining two or more independent suits set in
different courts of the same jurisdictional level, which
involve common questions of law or fact, for the purpose
of a joint hearing or trial.
Costs:
An award of money, or expenses, particularly in a civil
suit, given by the defeated party to the prevailing party.
Cross-Complaint:
An assertion or claim made by a defendant against a plaintiff
or some other party. The cross complainant is the person
who makes the cross complaint. The cross defendant is the
person named as the defendant in the cross complaint.
Default:
A term meaning the failure to appear, to defend, or to follow
proper procedure in a lawsuit.
Default
Judgment: A judgment entered upon the failure of
a party to appear or plead, or take some required step in
the cause at the appointed time.
Defendant:
The accused person or party; the person named as the wrongdoer
in a civil or criminal action.
Delay
Reduction: Formally known as the Trial Court Delay
Reduction Act; also known as Fast Track. The Delay Reduction
Act was literally enacted to reduce delay. It sets forth
the time in which a case must be completed and the time
in which certain actions must be taken. Fast Track rules
only apply to general civil and exceptional cases. They
do not apply to Family Law, Unlawful Detainer, Small Claims,
Probate, Guardianship, Petitions, etc. Delay Reduction is
why Case Management Conference dates are set within a certain
time of filing the case, why service needs to be completed
within sixty days or if not, the court must be kept informed
of the status of service. If a fast track case is not served
within time limits imposed by the court, the case may be
subject to dismissal and/or sanctions.
Demurrer:
The answer of a defendant stating that, although the facts
presented by a plaintiff may be true, as set forth they
are insufficient to prove legal responsibility or obligation
of the defendant. A simple way to say it is the demurrer
is a challenge to the legal sufficiency of the complaint.
The demurrer is a first
A responsive pleading filed in an Eminent Domain action.
The party filing the document is stating that they make
no claim regarding the property that is the subject of the
action. The disclaimer can be filed even if an answer or
default has been entered.
Dismiss
or Dismissal: To drop a civil action without a
trial. An action dismissed without prejudice may be re-filed
with the courts, while dismissal with prejudice bars the
right to bring or maintain an action on the same claim or
cause.
Disposition:
The final settlement by the court in a controversy. A case
may achieve disposition by a complete judgment or dismissal
of the entire action, since either action ends the case.
Doe:
A designation used in a complaint to allow for naming additional
defendants at a later date as they are discovered.
Doe
Amendment: A form used to amend a “doe”
designation for a defendant to an individual’s name
upon ascertaining the party’s actual identity.
Eminent
Domain: The power of the state to take private
property for public use.
General
Denial: A type of answer to a civil complaint.
A general denial is a pleading in a civil matter where the
defendant either denies all of the allegations of an unverified
complaint, or denies each and every allegation of the complaint
and the amount in controversy on a verified complaint is
less than $1,000.00.
Guardian
ad Litem: A court appointed adult, who represents
the interest of a minor for the purposes of the suit only.
Harassment:
A term (as used in court) in relation to a pleading called
Petition for Injunction Prohibiting Harassment. This type
of action is filed when there is a dispute between parties
that have no familial or dating relationship, such as neighbor
vs. neighbor, and the plaintiff wishes to obtain a restraining
order from the court that prohibits the defendant from harassing
the plaintiff and/or his or her family members.
Joinder:
Generally, a coupling or joining together; e.g. plaintiffs
joining in a suit, or a joining of actions or defense. Parties
may join a motion rather than reiterate all of the issues
raised in the motion; the parties join the moving party.
The joining party must still pay a fee and give notice that
they join the action, but they do not prepare moving paperwork
of their own.
Judgment:
The final, official decision handed down by the judge stating
which party has prevailed and the terms of the decision.
Judicial Council: The policy making body
of the California courts. They are responsible for promulgating
rules of court administration, practice and procedure. They
approve the budget, sponsor legislation, approve reports
to the Legislature, and establish direction and setting
priorities for the continuous improvement of the court system.
The staff agency to the council is the Administrative Office
of the Courts (commonly referred to as the AOC).
Jurisdiction:
The authority, capacity, power or right of a court to hear
and decide a legal matter. Limited Jurisdiction: legal matters
where the amounts claimed are $25,000.00 or less. Unlimited
Jurisdiction: legal matters where the amounts claimed are
greater than $25,000.00 and in all civil matters involving
family law, probate, mental health, property taxes and reparation
rights.
Law
and Motion: Those proceedings prior to and in preparation
of trial, wherein questions of law are resolved and disclosure
of facts and evidence is made. These matters are commonly
referred to as law and motion and discovery proceeding.
Law and Motion includes such items as: demurrers to pleadings,
motions to depose witness, change of venue, compelling production
of documents, motions to amend pleadings, motions to strike,
motions for summary judgment or summary adjudication, etc.
Leave
of Court: Permission obtained from a court to take
some action which, without such permission would not be
allowable; as, to receive permission to file a Complaint
in Intervention, or permission to file a third amended complaint.
Levy:
To raise, collect or seize by legal process, e.g. taking
and selling property to collect money. The levying officer
is an official empowered to conduct the levy, usually a
sheriff, marshal or constable.
Lis
Pendens: Also known as Notice of Pendency of Action
and sets forth jurisdiction, power or control over property
that is the subject of a pending lawsuit in order to prevent
disposal of property (usually real property) until the case
is over.
Motion:
An oral or written request made by a party to the court
for a ruling or an order on a particular point.
Motion
for New Trial: A motion made to the court for a
re-examination of an issue of fact in the same court after
a trial and decision by a jury or court.
Motion
to Strike: A motion made by a party to the court
for a ruling to strike (remove) portions of a complaint.
A motion to strike prevents the entry of default pending
the outcome of the motion.
Motion
for Summary Judgment: A motion that contends the
action had no merit or that there is no defense to the action
or proceeding and there would be no triable issue as to
any material fact and that the moving party is entitled
to judgment as a matter of law.
Motion
for Summary Adjudication or Judgment on the Pleadings:
If the motion is filed by the plaintiff it would have the
grounds that the complaint states facts sufficient to constitute
a cause or causes of action against the defendant and the
answer does not state facts sufficient to constitute a defense
to the complaint. If the motion is filed by a defendant,
either of the following conditions exist: 1) The court has
no jurisdiction of the subject of the cause of action alleged
in the complaint, or 2) the complaint does not state facts
sufficient to constitute a cause of action against that
defendant.
Note:
For calendaring and fee purposes the Motion for Summary
Judgment and Motion for Summary Adjudication are the same.
Nolo
Contendere: A Latin phrase meaning “I do
not wish to contend.” Synonymous with guilty. However,
this plea of guilty holds true only for a criminal action
and cannot be used as an admission of guilt in a civil suit
for the same offenses in some instances. A plea of Nolo
Contendere is not proper in a civil suit.
ORAP:
an acronym for Order to Appear for Examination of Judgment
Debtor which is a court order commanding the judgment debtor
to appear in court at a specified date and time, and to
submit him or herself to questioning so the judgment creditor
may ascertain what assets are held that may be levied upon
to satisfy the judgment. If an ORAP is personally served
on the judgment debtor and he or she fails to appear, the
court may issue a bench warrant.
Personal
Service: For service on a natural person, the service
must be on the named defendant. If any other person (including
a spouse) is served on behalf of the named defendant it
is NOT personal service.
Petition:
A formal, written request presented to the court requesting
judicial action, similar to a motion, but usually made in
writing, while motions may be made orally.
Petitioner:
One who presents a petition to the court.
Plaintiff:
The party who makes the initial complaint in a lawsuit.
Points
and Authorities: Also known as Ps and As. Points
and Authorities refer to the written legal argument given
to support a request for a motion. It includes references
to case law and statutes that support the position of the
moving party.
Quash:
To end, set aside, or to make void, as in to quash the service
of a summons.
Renewal
of Judgment: A judgment in a civil action is enforceable
for ten years; however, the judgment may be renewed for
an additional ten years as long as application to renew
is made prior to the expiration of the original ten years.
Respondent:
A party against whom a motion or petition is filed in the
course of a lawsuit.
Sister-State
Judgment: When an out of state court enters a judgment
it is only enforceable in the state that it is entered in.
If a judgment debtor resides in a different state the judgment
creditor must apply for a Sister State Judgment so that
it can be enforced in the state where the judgment debtor
resides. In general civil there is no jurisdiction for the
court to enforce the judgment if there is not a judgment
in the state of residence.
Statement
of Damages: A pleading in a civil personal injury
case in which the plaintiff specifically enumerates the
damages claimed in the lawsuit. The statement must be filed
and served upon demand of the defendant or prior to the
entry of default. Sometimes when a personal injury suit
is filed the damages are listed as “according to proof”
and dollar amounts are not listed. The statement of damages
informs the defendant more specifically as to the amount
of money claimed as damages.
Subpena:
a writ compelling a person to appear and give testimony
at a specified time and place. Also spelled “subpoena.”
Subpoena
Duces Tecum: A subpoena, which, in addition to
compelling the appearance of a witness, commands that specific
documents be produced at the time of appearance.
Substituted
Service: Service of process on a person other than
the named defendant. Reasonable diligence and mailing must
be done in addition to handing the documents to the other
person.
Summons: A notice to a defendant that an
action has been filed and that a judgment will be entered
should the defendant fail to answer the complaint within
the statutory time limit.
Trial
de Novo: Latin for “new trial.” A trial
is held for the second time as if there were had been no
former trial.
Venue:
The geographical limits of a court’s jurisdiction.
The proper place for a trial.
Warrant:
A written order issued and signed by a judicial officer
directing a peace officer to do something. A Bench Warrant
is the type commonly seen in general civil. It is a warrant
of arrest issued by a judge while on the bench or in court,
usually as a result of failure to appear as ordered or for
contempt.
Writ:
A written order or directive issued by a court commanding
that certain action be taken. A writ may be addressed to
a law officer for enforcement, or it may be given directly
to the person ordered to take some action.
Writ
of Mandate: An order that commands the performance
of any act designated by law to be part of a person’s
duty to position or status.
Writ
of Execution: Orders the enforcement of a court
judgment. One writ of execution may be issued per county
at a time. A prior writ must have been returned and filed,
or six months must have elapsed in which time the writ expires,
in order to have a new writ issued to the same county.
Writ
of Habeas Corpus: Orders the release of someone
who has been unlawfully imprisoned.
Writ
of Prohibition: The counterpart of Writ of Mandate,
it orders that further proceedings or official acts be stopped.