How to File a Cross Complaint in California

You can think of a cross-complaint as a way to kill two birds with one stone, or you can think of it as a counter punch when you've been attacked. In either case, a cross-complaint is an affirmative pleading you file in response to a complaint filed against you. In California, you can file a cross-complaint if you are sued, essentially bringing an action against the person suing you. Indeed, in some circumstances you must file a cross-complaint (termed a compulsory cross-complaint in California) or you risk losing the right to pursue the claims.

Lots of different pieces of paper are filed with the court in the course of a lawsuit, but not all are pleadings. Pleadings provide the spine of the case, setting up the parties and the issues. It's important to get these terms straight before you leap into a cross-complaint discussion.

The opening salvo in a lawsuit in California is called a complaint. The person opening a legal action is called a plaintiff, and she files a complaint naming the people who, she claims, caused her injury. These people are called the defendants. A complaint also describes the basic outlines of the plaintiff's claims, enough to let the defendants and the court know what happened, when it happened and the type and extent of the injury she suffered from that conduct.

The plaintiff files the complaint with the California court, together with a summons. The summons is a notice to the defendant. It is a short form telling the defendant that he has been sued, providing the court address and the case number. The summons also tells the defendant that he has a limited number of days to appear in the case. An appearance doesn't mean personally showing up at the courthouse. Rather, it means that the defendant must file a pleading in response, usually an answer to the complaint.

Both the summons and the complaint must be "served" on the defendant. That means it must be handed to him personally by someone other than the plaintiff, but other means of service can be used if personal service is impossible.

The summons tells the defendant how quickly he must act to participate in the lawsuit filed against him. Usually the responsive pleading deadline in California for most types of lawsuits is 30 calendar days after the defendant is served. If you are the defendant, you need to count out the time on a calendar to be sure of the day you need to file an answer. If the 30th calendar day happens to fall on a weekend or on a court holiday, the deadline is extended until the next business day.

The defendant has a number of responsive pleadings he might file. The most common response is to file an answer, but other possible pleadings include a general denial, a demurrer, a motion to strike and a motion to transfer venue. In addition to one of these responsive pleadings, the defendant can file a cross-complaint against the plaintiff and also against anyone else if the claims arise from the same circumstances.

If you are the defendant and you intend to file a cross-complaint, it is important to do it before or at the same time as you file an answer. If you file an answer first, you will have to file complicated paperwork to ask the judge for permission to file your cross-complaint. You'll have to explain the delay, and the court may very well deny your motion.

The law about cross-complaints in California is set out in the California Code of Civil Procedure, section 428. The pertinent part of the statute provides:

A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth either or both of the following:

(a) Any cause of action he has against any of the parties who filed the complaint or cross-complaint against him...

(b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.

What does all that mean? It means that a cross-complaint is legal crossfire. Essentially, the defendant filing a cross-complaint turns the tables on the plaintiff by alleging that her improper, illegal, negligent or willful action caused him damage. It doesn't erase the charges in her complaint. It simply adds another set of charges, which are allegations against her. She has to prove her claims; you have to prove yours.

If the charges in the cross-complaint involve the same set of facts set out in the complaint, the defendant has no choice. He must file a cross-complaint at the same time as his answer. Otherwise, he waives those claims. This is also true for claims against other people, if the claims are based on the same facts and circumstances as the initial lawsuit.

Are you limited to making claims in a cross-complaint that are related to the subject matter of plaintiff's action? You are not. But claims against third parties have to relate to the subject matter or transaction in the plaintiff's complaint. And, all claims relating to the same circumstances must be brought in a cross-complaint or will be waived.

Take the case of an automobile crash. Let's say that the plaintiff was driving car 1 and was hit behind by car 2. She files a complaint against the driver of car 2 for her damages, so he is the defendant. He can simply file an answer saying it wasn't his fault. But if he believes it was the plaintiff's fault, or if he charges a third driver with causing the accident, he must file a cross-complaint seeking damages. Unrelated charges are also possible but not compulsory. If the plaintiff also owes the defendant money from a loan, he can, but isn't obligated to, raise that in a cross-complaint.

Filing a cross-complaint in California is very like filing a complaint. You can find a California cross-complaint sample online, or look in the court's website for forms. You can find cross-complaint forms prepared by the court for certain types of cases. For example, there are fill-in-the-blanks cross-complaint forms for cases charging personal injury, property damage and/or wrongful death, as well as for contracts. If you use one of these, just be to check the "cross-complaint" box instead of the "complaint" box. You can get these forms online or at any Law Library in West’s California Judicial Council Forms .

But you don't have to use a form if it doesn't seem to work well for your case. Instead, just write up a cross-complaint in pleading paper. Pleading paper is often available at county law libraries, formatted for use in that county's superior court. The law libraries may also offer sample language for writing cross-complaints.

Don't forget that, like the complaint, a cross-complaint must be properly served on new parties. If you are the defendant and you are filing a cross-complaint bringing new parties into the lawsuit, you must serve each of them with the pleading as well as a summons. You don't have to serve the plaintiff with a summons since she is already a party to the suit. Service of a cross-complaint in California is essential to making the claims.

How to decide whether to file a claim against the plaintiff if it is not related to the original facts in the complaint? You are not required to file these unrelated claims in a California cross-complaint, but you can. It may be that you have enough on your plate with the initial complaint, but since you already have the plaintiff in the lawsuit, you could save yourself time and effort by bringing the extra claims. You will want to weigh the benefits and disadvantages of doing so.

For example, let's say that you are sued by a neighbor for damage she claims you did to her scooter when backing out of your driveway. You deny it was you who knocked it over, but you don't have any claims against her relating to the scooter. She says you did it; you say you didn't. So, no compulsory cross-claims. However, your neighbor's minor children got into your backyard and destroyed several valuable plants, worth thousands of dollars. You were planning on taking the matter to court, so it may well be worth it to just go ahead and cross-claim against her. You won't even have to track her down to serve the papers since she is already in the lawsuit.

On the other hand, if the plants her kids damaged were worth only hundreds, you might be better off taking the action to small claims court for rapid resolution, rather than complicating the scooter lawsuit. If you are not sure whether to put in a cross claim, it's a good idea to consult an attorney.

The original defendant is not the only person who is permitted to file a cross-complaint in California. Any party on whom the defendant serves a cross-complaint can then turn around and file a cross-complaint against him. The cross-complaint can be related to the original facts and circumstances outlined in the complaint. These are compulsory cross-complaints and must be made when those parties answer, or the claims are waived.

Under the terms of Code of Civil Procedure section 428, each of those parties can also file cross-complaints about any claims they may have against the defendant. For example, if you are the defendant and you cross-complain against them for rear-ending your car, they can cross-complain against you for negligence in the auto accident or for any other claim they have against you. If, by chance, the person who rear-ended you is an ex-landlord and you skipped out without paying rent, he could cross-complain against you for that rent in response to your cross-complain.

Cross-complaint and counterclaim sound alike and, in fact, they are closely related in California. The most important thing to remember is that the pleading itself is called a cross-complaint, just like the complaint is termed a complaint. So you'll want to use the term "cross-complaint" on the pleading itself as well as on any new summons you need to have served.

But, technically, the claims you are making against the plaintiff are in fact counterclaims. A counterclaim is an allegation that the defendant levels against the plaintiff in a cross-complaint. What are the charges you make against third-parties called? They are termed cross-complaints.