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Ask LADYLAWYER Your Own Question
Category: Legal
Satisfied Customers: 6536
Experience:  Civil; Family; HOA; Landlord/Tenant; Real Estate; Probate; Insurance; Immigration; Wills & Trusts
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Need procedural help

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Need procedural help

LADYLAWYER : Hello, Thanks for choosing! I look forward to helping you with legal information today.
LADYLAWYER : I imagine now that since you have paid, the facts in the Complaint have changed so that the Complaint will need to be amended. Was an Answer filed along with the MTD or just the MTD?

Thank you for answering. The facts have changed since we paid the fine, but the facts as they are related to the charged fine (I misspelled it in my original posting) are still the same. We also seek the same relief as before (to Issue a declaration that Plaintiffs are responsible for the illegal move (by tenants) is unreasonable, unsubstantiated by evidence and therefore, void; and The defendant’s purported lien (fine) on Plaintiffs’ unit for its collection and enforcement is improper, unenforceable, and null and void for all purposes). We received the MTD and I am in process of writing an Opposition to MTD. I have few more days to do that. My first question is whether I should submit the Opposition or file an amended complain. My second question is whether I need to explicitly state that I want a reimbursement (I want my money back!) or the relief as I stated above is enough and it is understood that the money should be returned. Thank you very much.

LADYLAWYER : You need to submit the Response in Opposition to Motion to Dismiss and in it, among your other reasons, state that you have amended the complaint and want to file it. Attach the amended complaint to the Response in Opposition.
LADYLAWYER : In the amended complaint, you will change the facts since you have now paid and request a return of your funds as well.

I did not realize that i can file two documents at the same time. In court they told me that I have to send the Opposition to the Defendant's lawyers and they will file it in court. Do I send the amended complaint to them as well or I should file it in court as I did with the original? Also, do I attach all exhibits again?

LADYLAWYER : No, you need to file it in court and you send the attorneys a copy. That was not correct info and the defensant's attorneys are not responsible for filing anything with the court that the other side gives them. Each side files their own pleadings and provides the other side with a copy.
LADYLAWYER : yes, you can file as many motions or pleadings as you want at the same time, as long as they are timely.
LADYLAWYER : here though, you are not so much filing two as you are filing one with an attached "proposed" amended complaint.
LADYLAWYER : it is like an exhibit that the court will either give you permission to actually file or not
LADYLAWYER : and yes, you need to refile all exhibits
LADYLAWYER : or, to be precise, attach all exhibits to the proposed amended complaint, which the judge will decide if you can file or not.

I am so confused.... I called the court clerk twice and twice he told me that I need to send the Opposition to the other party....


i believe you, of course.

LADYLAWYER : you do send it to them, but you just send them a copy of what you file with the court
LADYLAWYER : thecourt the original document is what you file with the court. And each side files their own documents.
LADYLAWYER : sorry, that should say, the original document...

ok, understand. So just to reiterate - I bring both the Opposition and the amended Complaint to Court. Now..why did you say that the judge will decide if I can file or not? When I bring my document to court, I don't stand in front of the judge right there... I am sorry, probably my questions are really naive...i don't know the procedure..

LADYLAWYER : oh goodness, it is totally fine! I am happy to keep helping to clarify.
LADYLAWYER : when you go see the judge, you are going in for a heating on the MTD.
LADYLAWYER : hearing
LADYLAWYER : sorry, ipad autocorrect
LADYLAWYER : partautocorrect part of your argument is that the Case should not be dismissed because you have now paid the fine, have standing to bring the case, AND, you are asking the judge to let you go ahead and file the amended complaint ou have already put together that he has right in front of him
LADYLAWYER : Just ignore the gibberish at the beginning of some of my posts. I can't get it to stop doing that when I try to type fast.

Oh, ok. Please see if I understood it correctly: I bring the Opposition ans the attached amended complaint with all exhibits, file it in court. what happen then?

LADYLAWYER : Yes. Then you go to the hearing on the MTD. The judge will have a copy of the opposing aide's MTD and your Response in Opposition with all the attachments. The judge will look at all the paperwork and may ask a few questions. He may even ask for an oral argument, so be prepared to summarize what is in your Response in Opposition. At that time, the judge will make a decision whether or not to dismiss the case and if not, should let you file the Amended Complaint.

So he won't decide on my case right there? (I mean, whether to return my money or not).

LADYLAWYER : It's just a hearing on the MTD, right?


LADYLAWYER : They haven't even filed an Answer yet, nor have you done any discovery. This all has to be done first.

I filed a complaint to issue declaratory judgment. They sent me the MTD. Now I am writing the opposition. that's it. I am not sure what Answer you mean...


and what discovery I have to do...

LADYLAWYER : Okay, so whenever a complaint is filed, even if it for a declaratory judgment, the other side has to file an answer, staing whether they agree with the facts and allegations or not. In that answer, they also provide their affirmative defenses, which are basically reasons why the court should rule for and not against them. In this case, they did not file an answer because they filed an MTD, which was proper in its timing. But, after the MTD is ruled on (if it is denied), then they have to file an Answer.
LADYLAWYER : Next thing the two sides do is to file discovery. As most declaratory judgment actions are primarily based on written documents, discovery is focused on the identification and disclosure of documents. The most useful discovery tools are the request for production of documents and request to admit facts.
LADYLAWYER : These are called Requests for Admissions.
LADYLAWYER : You also have written questions, called Interrogatories, and something called Request to Produce, which asks them to send you relevant documents that relate to the case.

I see...ok, so I file opposition with amended complaint, then we go in front of the judge and if he allows for the case to go forward, they file an Answer and all these other things happening. Did I get it right?

LADYLAWYER : Now, I need to complicate things a little further for you...


LADYLAWYER : Declaratory judgments actions are designed to allow parties to clarify legal rights and obligations before the matters at issue ripen into violations of law or a breach of duty, and thereby avoid incurring damages. Now that you have paid the fine, you may actually be considered to "have damages" and as such, the court may dismiss the complaint on the basis that a declaratory judgment is not the proper procedure anymore. If this happens, you will be able to bring your action back to court but not as a complaint that seeks a declaratory judgment. You will actually have to seek an injunction and damages.

I am digesting

LADYLAWYER : But let's not worry too much about that for now. Opposing counsel may not even plead this and unless the court makes its own motion to dismiss based on this reason, you don't have to worry about it. I just wanted you to be prepared in the off chance this is brought up so that you would know why it was happening.

ok, I see. I think in this case it would be easier to file it in small claim court...


i probably should have done it in the first place

LADYLAWYER : Yes. You don't have to go though all the formal discovery, etc.

i did not know


that's why people go to law school for ..what, 5 years?

LADYLAWYER : Well, you couldn't initially because you hadn't paid the fine so you had no damages. A declaratory judgment was the proper way to ask for relief.
LADYLAWYER : 3 years in my case :)

ok... well, i understand I guess. So if they dismiss I do have a chance to go to small claim, right?

LADYLAWYER : Yes. You want to make sure the claim is "dismissed WITHOUT prejudice." This leaves you free to bring it again.
LADYLAWYER : The court should specify that on its own; you shouldn't have to ask.

Got it. I hope the last question: can Iseek an injunction and damages in amended complaint?

LADYLAWYER : Not if you're asking for declaratory relief but if you just want to move ahead with a traditional case, then yes.

Well, that's what I am asking I guess: if in my amended complaint I say that I seek damages and an injunction.


instead of declaratory judgment


can you recommend any samples or any simple books where these procedural structure is discussed?

LADYLAWYER : Do you have a law library nearby? There should be books and sample forms as well there.

yes, there is a law library that I went to, I guess, i'll go again.

LADYLAWYER : I just don't know of any book that you could find everything you need in.

I understand. In my amended complaint I should just say that I seek injunction and damages.

LADYLAWYER : There are proper ways to plead for both of them. I couldn't describe how to do it in brief detail here.
LADYLAWYER : If I were you, I would just amend the complaint to seek the declaratory judgment like you were.

ok,I'll do that. The worst thing that can happen is that they will dismiss the case and I can bring it again as traditional case. Right?

LADYLAWYER : then if the court dismisses, it will be without prejudice and you can refile

ok, thank you

LADYLAWYER : You are welcome!
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i think you explained everything and answered all my questions. Thank you again.


yes, I am leaving a positive rating of course.

LADYLAWYER : My pleasure. Thank you!
LADYLAWYER and 4 other Legal Specialists are ready to help you
Customer: replied 3 years ago.

Dear LadyLawyer, you helped me before, and I need your help again with my case. This is where I am right now. I am waiting for the court to set the hearing date to hear the Defendant's motion to dismiss my Complaint (this is First Amended Complaint by the way). The Defendant filed 9A package in Court on July 3d. Few days after that date I obtained an affidavit that I would like to include in my case. What are my options? I talked to the court clerk and he said the hearing won't be until late September, so I have time.

I am not sure how this works, but i am willing to pay for this service. I just really need to know what to do.

thank you.