Glossary of Civil Terms

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.

Complaintin 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.