About six weeks ago, the US Supremes issued their pleading decision in Ashcroft v. Iqbal, ___ U.S. ___ (May 18, 2009, No. 07-1015). The Wall Street Journal quotes those ubiquitous "legal experts" as saying Iqbal may be the most important case of the term. While Iqbal was a discrimination case, SCOTUS seems to impose requirements for pleading any cause of action much more stringent than many practioners may have assumed under FRCP, Rule 8's "short and plain statement of the claim" standard.
Well, this blog isn't about federal practice; it's about California practice. And what is the standard for pleading a cause of action in the Golden State? According to Code of Civil Procedure section 425.10(a)(1), a complaint must contain "a statement of the facts constituting the cause of action, in ordinary and concise language." So what does that mean? It means the plaintiff must allege "ultimate facts," not "conclusions of law." Huh?
There are an awful lot of defense lawyers around these parts who cut their teeth in their formative years drafting demurrers (California's version of a FRCP Rule 12(b)(6) motion) addressing just whether or not complaints met this standard, and there are tons of appellate cases on the subject. But the fact is, in a typical product liability or other personal injury tort case these attacks on the pleadings rarely achieve anything very useful and, fortunately, they seem to be less common than they used to be.
Anyway, some years ago, California's Judicial Council began adopting check box forms to be used as pleadings. Besides taking away some of the more stylish flourishes that used to appear in pleadings in the olden days (". . . plaintiff alleges that she was injured in her health and her strength and in her ability to do her work, all resulting in damages in an amount presently unknown, but plaintiff will seek leave of this honorable court to amend this Complaint when the amount becomes known. . ." etc., ad nauseum) these forms, while not mandatory, have resulted in what we at CalBizLit sometimes call "no-notice pleading."
Here's what the Judicial Council considers to be an adequate allegation of a product liability cause of action. Do you think filling out this form would get the plaintiff past Iqbal? I'm thinking not so much.
So that's reason 1,546 why defendants like Federal Court.
Comments