5 Rules for Drafting Allegations in a Complaint

Complaints must include a statement of facts constituting a cause (or causes) of action. CCP §§425.10(a)(1), 430.10(e). For those new to litigation, you may be tempted to just get a complaint from a colleague and replace the allegations with your case’s facts. This can be risky if you don’t know the rules that apply to drafting allegations.

Here’s a practical approach to drafting factual allegations:

  • Outline the facts that show the plaintiff’s primary rights, the defendant’s duties, and the defendant’s impingements on the plaintiff’s rights;
  • Compare this outline with text discussions of the traditional causes of action and theories to ensure that each essential element is shown by a factual allegation and that nonessential facts are eliminated; and
  • Formulate direct, positive, and concise statements of the essential facts in a general form (too much specificity or detail may limit evidence that can be introduced at trial or reveal potential defenses).

There are five rules to keep in mind when applying this approach:

  1. Keep the language simple. Complaints must contain statements of fact in “ordinary and concise language.” CCP §425.10(a)(1).
  2. Don’t worry about anticipating defenses. There’s no need to plead facts in a complaint that anticipate defenses. Allegations in the defendant’s answer are considered controverted. CCP §431.20(b). But if the allegations of the complaint reveal a defense, e.g., that the statute of limitations has run, the complaint should also contain allegations that negate the defense.
  3. Incorporate allegations. It’s common practice to incorporate the allegations of one cause of action or count into a subsequent one. The incorporation should be clear and direct, but no particular words are required. Analyze each allegation to avoid incorporating unnecessary or conflicting facts that render the subsequent cause of action ambiguous, meaningless, or more difficult to prove.
  4. You may allege facts on information and belief. A pleader without direct personal knowledge of a fact can allege it “on information and belief.” The allegation should be positive, e.g., “Plaintiff is informed and believes, and thereon alleges ….” Pleaders use allegations on information and belief to help preserve some credibility when stating facts within the defendant’s knowledge or about which the plaintiff knows only by hearsay or guess. Keep in mind that alleging a fact on information and belief doesn’t immunize the pleader from a perjury charge if he or she willfully verifies an allegation knowing it to be false.
  5. Incorporate facts in attached documents by reference. A statement in a complaint that an attached document is incorporated by reference makes that document a part of the complaint as if it were written out in full. The reference and incorporation clause should directly and clearly show that recitals in the document are part of the allegations of the pleading or paper. The document must be attached to the complaint if practicable; if not practicable because of the attachment’s physical nature or bulk, state that fact. For example, this comes up when the pleading is a complaint for infringement of a literary, artistic, or intellectual production and the production or alleged infringing production isn’t attached. CCP §429.30(b).

For an overview of preparing, filing, and serving complaints and answers, turn to CEB’s California Basic Practice Handbook, chap 3. And get more in-depth coverage of complaints, including sample forms, in California Civil Procedure Before Trial, chap 15. CEB also has you covered with a FREE CLE program: Drafting Complaints, Cross-Complaints and Amendments, available On Demand.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

2 thoughts on “5 Rules for Drafting Allegations in a Complaint

  1. Rule 6: start with the CACI Jury Instructions. If there’s a CACI instruction for your cause of action, use it as an outline. How many times have I seen well-paid senior partners at big firms file complaints and there’s a key element missing because somebody didn’t bother to check. Think they charged their clients for that: you betcha.

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