To commence a civil action, the plaintiff (the complaining party) must file a Complaint or Petition with the appropriate civil court and have the court issue a summons for the other party (defendant) to appear and contest the claim or face having a default taken against the defendant. The summons is a form created by the court which notifies the party that an action has been filed against him, her or it, notifies him, her or it of the need to appear, and is attached to the Complaint or Petition that is personally served upon the defendant at the beginning of the case.
It is required to serve upon the defendant not only the Complaint but the summons since it is the summons which invokes the power of the court to require an appearance by the defendant. The defendant is “summoned” to appear or face default.
In California the summons is a required form published by each court and the party using it simply fills in the relevant case information, files it with the court along with the Complaint, and once filed and the summons is issued by the court, the summons is served upon the opposing party by the process server. Only then is the defendant required to appear within the time limit specified in the summons. The summons is the “voice of the court,” while the Complaint is the pleading of the party.
The Power of the Summons:
The typical summons issued in California can be found online but its vital terms are as follows:
Notice! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below.
You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in the proper legal form if you want the court to hear your case…If you do not file your response on time, you may lose the case by default and your wages, money and property may be taken without further warning from the court.
There are other legal requirements. You may want to call an attorney right away…
Note that different types of civil actions, such as unlawful detainers, applications for injunctions, etc., may have very different dates to respond. (The “return date” of a summons is the date to respond or face default.) Different courts have different forms and different time limits.
And note that by having the summons issued, a party suddenly can invoke the full power of the civil courts to obtain relief. One cannot ignore a summons or refuse to comply without risking default and threats to property. And once default is entered, a party cannot simply choose to appear: one must file a motion to remove the default and explain to the court while an appearance was not made before the time period expired. The court has discretion to refuse to remove the default and after six months, even the court’s right to remove a default is extremely limited. Defaults can be reduced to a judgment and with a judgment a party can seize property owned by the defendant, attach wages, obtain an eviction, etc. etc.
One may feel one has a dispute with a business person or a family member-but once the summons is issued it is the full power of the law and the courts that is brought to bear in the dispute and it is absolutely vital to treat it seriously, file a response within the time limits…or face the consequences.
SERVING THE SUMMONS:
Usually, a summons must be handed to the defendant by a person over the age of eighteen. There are professional process servers who will serve the summons or one can select anyone over eighteen who is not a party and will file proof of such service with the court. In certain circumstances, it may be served in other ways, but that is normally only allowed if personal service can not be achieved. The process server must not be a party to the lawsuit. Serving a summons on a defendant in another jurisdiction or out of the country also can require special court procedures and one can expect the defendant to contest the validity of the jurisdiction of the court once served, perhaps in a motion to quash the summons.
The issue of what is good service is a complex one and has resulted in thousands of pages of case law and statutes. Good experienced legal advice is vital if one has any question as to how to achieve proper service of summons. Note that if the service is not valid or the summons not properly prepared, a motion may be brought to void the entire judgment, and this may occur long after the time period for vacating the default that was entered.
Note also that every jurisdiction has its own rules as to service of complaint and summons, appropriate service and motions to vacate and the local law should be carefully reviewed…and updated since the law can be altered over the years.
DON'T MAKE THE COURT YOUR ADVERSARY:
A wise old attorney once told the writer that a unique and wonderful part of the American legal system was the ability of any person, including corporations and non-citizens, to bring the power of the legal system into disputes and seek justice by use of the courts. As he put it, “With the stroke of a pen I am no longer a person complaining about another…now I am a legal party seeking the overarching power of the law and our courts to hear my complaint and render my relief.”
Some people greatly resent being forced to spend the energy, time and expense of having to defend themselves. At times a party will simply seek to ignore the summons in exasperation and figuratively or literally throw the summons and complaint on the floor, rage about the fact that they do not want to spend thousands to hire an attorney and will ignore the papers served.
What is vital to understand is that every person has the same ability to call in the power of the courts and that is a cherished right in this country. To refuse to comply with the rules of the Court simply means you will lose the case and the court will allow your opponents to prevail and seize your property. You are not making a point by ignoring the summons and complaint-you are surrendering and doing it in a way that makes prevailing much easier for your opponents.
Even if you feel that service was not properly achieved or that the court has no jurisdiction upon you since you live in another state or country, it is imperative that you appear and so advise the court and do so within the time limits in the summons.
Or, as that same wise old attorney wrote me in a letter, “I can’t understand why people blame the court for becoming involved in their lives. That’s what courts do…they involve themselves in disputes when any one of the disputants so elects. And even crazier, some people blame the courts and start to fight them, angry and resentful. That’s like being attacked by a poodle and responding by picking a fight with two rottweilers and four pit bulls…fight the poodle, not the pit bulls….”