Legal Question in Civil Litigation in California

Response to plaintiff's Motion: Do I have to file a declaration?

In filing a ''Response'' to plaintiff's Motion, do I (defendant) have to file a Declaration? Or is a ''Response'' enough?

Asked on 5/28/08, 2:28 pm

2 Answers from Attorneys

Carl Starrett Law Offices of Carl H. Starrett II
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Re: Response to plaintiff's Motion: Do I have to file a declaration?

It depends on the type of motion that the plaintiff filed. Some motions like a demurrer are supposed to be determined strictly based on the factual allegations in the pleadings and declarations are generally not allowed. Other motions requirement evidence to be submitted before it can be granted by the court.

The fact that you are even asking this question is evidence enough that you need an attorney. An experienced attorney can review the motion and tell you in about 5 minutes what would be necessary to oppose it and whether declarations were necessary or even allowed.

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Answered on 5/28/08, 2:55 pm
Stephen Petix Quinton & Petix
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Re: Response to plaintiff's Motion: Do I have to file a declaration?

Mr. Starrett is correct in advising you to consult with a lawyer, if you are in the middle of a lawsuit and the plaintiff is filing motions that you do not understand.

The fact that the plaintiff is filing a motion leads me to fear that he/she may be seeking a summary judgment or a judgment on the pleadings. If so, you may well have to file declarations setting forth the facts you know to be true that contradict the plaintiff's claims in his/her Complaint.

(I am assuming you filed an Answer in the case, or the plaintiff probably would have already obtained a default judgment.)

You also do not state what kind of a lawsuit this is. If it arises out of an auto accident or other personal injury allegedly caused by you or a family member, if you have auto insurance or homeowner's insurance, you should notify your insurance company, which should provide a lawyer to defend you.

If not, contact your local bar association. Most have a lawyer referral service which will provide a free consultation with an attorney familiar with your kind of legal problem.

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Answered on 5/28/08, 4:25 pm

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