An amendment to the Pleading is an addition, substitution, or change in the original pleading related to matters occurring prior to the commencement of the action, such as adding or striking out the name of any party, or by correcting a mistake in the name of the party, or a mistake in any other respect; the amendment does not supersede the original complaint; it is added to the Complaint and becomes part of it.
An amended pleading is a pleading that is entirely rewritten pertaining to matters of substance, and is used in place of, and supersedes the original pleading; an amended Complaint should be verified the same as the original Complaint and a Summons issued and served on un-served defendants, and time to answer or otherwise respond is within 30 days for personal service.
A supplemental pleading (CCP 464-465) is filed on noticed motion or upon stipulation of parties and it alleges facts material to the case occurring after the original pleading has been filed. A Supplemental Pleading is merely an extension to the case made by the original pleading and it can only bring up matters that occur after the commencement of the action. It may be filed any time before judgment.
At any stage of the proceedings, after the complaint is filed, an attorney for a party to the action may compel the attendance of a witness for the purpose of giving testimony at trial, a deposition or other proceedings, by preparing a subpoena and then causing it to be served on the prospective witness. A party appearing in pro per must have the clerk of the court issue a subpoena. A clerk can pre-issue a subpoena, but it must be filled in by the party prior to service. An attorney is an officer of the court and may prepare, issue, and serve a subpoena without the court’s assistance. An attorney may wish to have a pre-issued subpoena from the clerk but it is not required in the same way as it is for a pro per party who is not an officer of the court.
When it is desirable to have the witness bring specified books, documents, or other things under their control to the hearing, a subpoena duces tecum is issued. An affidavit showing good cause is prepared by the party or attorney and accompanies the subpoena.
Any disobedience to a Subpoena or Subpoena Duces Tecum, refusal to be sworn, or to testify as a witness may be punished as a contempt of court by the court issuing the subpoena, and a bench warrant may be issued and served on that party. A person subpoenaed to appear as a witness is entitled to witness fees according to the provisions in applicable statutes. A witness may not be obligated to attend as a witness before any court, judge, justice, or any other officer, unless the witness is a resident within the state at the time of service, but there can be exceptions.
There are other various forms of discovery conducted outside the court such as Request for Admissions and Interrogatories. These types of discovery documents are not filed with the court by rule. The court does not get involved unless there is a dispute about the scope of the discovery or a failure of a party to timely answer the questions as prescribed by statute. A motion to compel discovery is filed with the court and a ruling is made to either limit discovery or compel a response.
Assistance/Glossary of Civil Terms
A Glossary of Terms may be helpful in understanding civil concepts. Civil actions can be very complex. You may need the advice of an attorney in order to proceed with civil action. The clerks in the civil division cannot recommend an attorney to you or give you legal advice. The San Bernardino County Bar Association has a Legal Referral Service. You may also contact the California Bar Association for information on attorneys and areas of specialty. There are various types of legal aid available in San Bernardino County. See the resources provided on the Court’s website for more information.
After a complaint is filed with the clerk, if the plaintiff wishes to attach the property of the defendant as security for a possible judgment, the law provides that he or she may institute attachment proceedings by filing an Application for Attachment, and shall be supported by Affidavit. A court order and filing of an undertaking as provided by statute CCP 489.210-489.220, gives the clerk authority to issue a writ of attachment that is served by the levying officer or registered process server for the property being attached. The property being levied upon is held until the determination of the plaintiff’s claim. However, the United States Supreme Court has declared that the attaching of the defendant’s wages through this process is unconstitutional, and the California Supreme Court has ruled similarly. More recently the California State Legislature has passed a bill that prohibits attachment of wages prior to a court hearing. Consequently, the levying officer agencies will not serve a Writ of Attachment if it is for wage garnishment purposes.
There are various methods by which a defendant can release an attachment, but the one most commonly used is the filing of a motion with points and authorities in the law and motion unit of the court, and the posting of a bond or undertaking, the amount of which is determined by the judge if he grants the motion releasing the attachment.
If the judgment debtor refuses to pay the judgment creditor or delays payment, the following options are available:
- An aid in the collection of a judgment is the Court Order for Appearance of Judgment Debtor, (commonly known as an ORAP). (CCP 708.110) The court requires a fee. A judgment debtor can be brought by the judgment creditor into court for an examination as to judgment debtor assets. A judge or commissioner signs the court order and failure by the judgment debtor to appear as ordered to answer concerning income and property may subject them to arrest and punishment for contempt of court if he or she was personally served the order to appear.
- The judgment creditor may request the issuance of a writ of execution by the clerk. A writ of execution is a court paper showing all relevant information regarding the judgment that the levying officers requires in order to serve the debtor. The writ is a means of levying on the judgment debtors property to collect or seize whatever is necessary to satisfy the judgment, plus costs. (CCP 699.520, 712.010, 715.010, GOV 6103.5)
- The judgment creditor may request the clerk to issue an Abstract of Judgment which shows the elements of the judgment and when recorded will put a lien on the real property. The judgment creditor records the abstract with the County Recorder’s office in the county where the judgment debtor’s real property is located. The judgment would have to be paid off in the event of a sale or refinancing of the property.
Another element of post judgment procedure is the Third Party Claim. (CCP 720.220 -720.250) This is a document that can be filed with the levying officer if some personal property levied on, is claimed by a third party as his/her property. The claim must describe or identify the property attached, state its reasonable value and set out facts to show the claimant’s title and right to possession. After the verified claim is filed with the levying officer, he or she must make a demand upon the creditor for the posting of a bond if the creditor wishes to contest the third party’s claim. If the bond is posted, a hearing can be set for a court determination of the Third Party Claim, deciding which party is entitled to the property in question.
A default judgment may be had, if the defendant fails to file an answer or otherwise respond to the complaint within the time allowed by law after proper service has been made. The plaintiff may request the entry of default and a default judgment. (CCP 585-587) The entry of default records the fact that the defendant defaulted by not answering or responding, or by not answering or responding in time.
Default judgment proceedings are an important aspect of civil procedure because judgment can be entered without the necessity of trial court time. A default judgment by clerk may be entered without judicial review on matters arising from contracts or recovery of money. In some cases additional proof and evidence are needed to determine the plaintiff’s claim and the judgment is determined by means of a default “prove-up” hearing before a judicial officer after which a default judgment by court is entered.
Each Superior Court is in a judicial district with definite geographical boundaries, which are the VENUE of the court. A general matter is within the venue of a particular court if any of the following conditions are met:
- The defendant lived in the judicial district at the commencement of the action (CCP 395)
- The contract was entered into or to be performed in the judicial district (CCP 395)
- The accident or injury (tort) occurred in the judicial district (CCP 395)
- The real property in dispute is located in the judicial district (CCP 392)
Occasionally, a civil case arising outside the venue of the court is filed, but it is the defendant’s responsibility to object to improper venue. Some civil cases are heard in a central location or region in the county, such as CEQA (California Environmental Quality Act) matters and some law and motion hearings. See the Court website for more information and notices about where some specialized cases types or matters are heard.