Legal Question in Civil Litigation in California

Re: Do I File A Complaint or a Cross-Complaint?

I agree with the four attorneys who answered before me, but I want to suggest that you get an attorney who is willing to defend you in the original action while she goes forward with the wrongful death case. Depending upon the specifics of the case you may not be able to make such an arrangement, but it is worth a try.

Also, I want to note that the plaintiff must have considered the likelihood of a cross-complaint before filing and probably decided your claim doesn't have much merit. (Suing someone is a great way to trigger a cross-complaint even if the defendant otherwise would not have brought suit, so parties which fear being sued have a strong incentive not to sue the aggrieved person.) Even if you don't hire an attorney to represent you, you really should consult with one about the strength of your case and about litigation strategy.

Good luck.

Re: Do I File A Complaint or a Cross-Complaint?

Good question. I would probably file a cross-complaint, and couple that with a motion to transfer to unlimited jurisdiction. That would save you a filing fee for the new complaint.

Re: Do I File A Complaint or a Cross-Complaint?

Attorney Cohen is correct on the procedure, but a wrongful death claim? By yourself without an attorney? You are out of your league, my friend.

Re: Do I File A Complaint or a Cross-Complaint?

If you have a wrongful death claim against the plaintiff, you should hire an attorney. Good luck.

Re: Do I File A Complaint or a Cross-Complaint?

First, I know nothing about the facts of your case. But, I suspect that the claim against you may not be a strong or large claim, if the other person has a lawyer due to the fact that it is filed in a limited jurisdiction court ($25,000 or less.)

Second, if you own a house then your home owner's insurance may cover this matter and assign you a defense attorney. Note: I said "defense" attorney. Which means you will not get any one to represent you on your counter-suit unless you hire one.

As for how and where to file your couter-claim, even if you file in the same action and make a motion to transfer to unlimited, you still have to pay the difference in the filing fee, if the case is transferred. I would instead file it separately, as a separate lawsuit naming you as the "Plaintiff" and file a motion of "Related Case" with a "Motion to Consolidate" to follow.

I am sure any lawyer who handles wrongful death matters, including yours truly, will give you a free consultation. Feel free to call, 323*782*0099.

Best of luck!

Re: Do I File A Complaint or a Cross-Complaint?

Related issues MUST be filed as a cross-complaint under the 'one action' rule, and this action must be moved to 'unlimited' status. It is a case of wishful thinking if you believe you can handle a high value matter like a wrongful death case and get anything near full recovery value. It WILL go to trial if you want to recover proper value. Sure, you might be able to file a complaint that they don't get promptly dismissed for inadequacy, and get 2 cents on the dollar in quick settlement. But, are you capable of going toe to toe for a year in pleadings disputes, discovery, depositions, hearings, contested motions and multi-week jury trial with a team of experienced defense attorneys on rules of evidence, objections, procedures, time limits, etc? Can you find, pay for, and use the experts required in this kind of case? Do you have the multi-hundreds of hours of time, and the emotional stamina required to do so? If so, go get 'em Tiger. Otherwise, admit you need professional help and get it. Would you do your own brain surgery? Recognize that you already had to ask a question about the most basic of procedures and rules.

Feel free to contact me if you change your mind.