This page describes in detail the Draft & File Complaint phase of litigation in your case. Please feel free to reach out if you have any additional inquiries.
Timeline For Drafting & Filing The Complaint
The Draft & File Complaint phase can take as long as approximately 2-3 months.
Draft & File Complaint
All lawsuits in California must be filed with either a state court (also known as a Superior Court) or a federal court in California. State courts, generally speaking, are more liberal and friendly to employment-related actions than federal courts so we almost always prefer to file in state court. State courts are split up by jurisdiction (essentially by county).
Once your case is filed, the next step is to serve the lawsuit complaint on the defendant(s) in the case. The defendants typically consist of your former employer, any affiliated/parent/subsidiary companies we deem proper defendants, and any managing agents we deem to be proper defendants (i.e. owners, supervisors, etc.). There are times where the company early on will provide us with information as to why one or some of the defendants named in the lawsuit should be dismissed (i.e. they were not proper defendants for some reason), which case we will dismiss them from the lawsuit or take other action to remove them from the suit. We typically use a process server to serve the lawsuit complaint on the defendants.
Once the lawsuit is served, the company has 30 days to respond to the lawsuit, typically by filing what is called an “Answer.” The defendants can also file other types of responses to a lawsuit, such as a “demurrer” or “motion to strike” prior to filing their answer. If they file any of these, then the parties meet and confer to see if they can work out the reasons why the defendants feel there is a defect in the way in which the complaint is alleged, and if the parties cannot agree then they must file briefs and argue their points for the judge to decide. Typically, at some point, the defendants will need to file an Answer the complaint.
Generally, within the first 30-60 days of filing a lawsuit, the court also sets an initial status conference where both parties by and through their lawyers attend an initial hearing with the court to discuss the case. Prior to this hearing, the attorneys meet telephonically to discuss the case, the optics for litigation, any potential for early settlement or mediation of the case, among other issues. Under normal circumstances, this hearing is generally scheduled by the court within 1 to 3 months after filing the case. However, due to COVID-19, many courts have scheduled the initial status conference 4-6 months after the filing of the case. It truly varies from court to court.
While we await the first hearing with the court, we prepare/draft discovery to send to the defendants. Discovery is essentially a request for information and a request for a production of documents to the defendants. While they have the right to object to these questions, if they do not have good reason to object, then the defendants must respond under oath by either providing the information and/or documentation. For example, we typically request the contact information for all the current and previous employees of the company during the period the lawsuit covers so that we can contact them as witnesses in the lawsuit. If the defendants do not provide this information, then we must file a “motion to compel” with the court, which the defendants can oppose, and the judge will rule on what discovery needs to be produced.
With class and PAGA actions, many courts in California have a “stay” on the case until the initial status conference. This means that the parties are not permitted to engage in discovery until the parties hold the initial status conference with the court. Again, this varies court by court.
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