mended Pleadings

An amendment to the Pleading is an addition, substitution, or change in the

original pleading related to matters occurring prior to the commencement of the
action, such as adding or striking out the name of any party, or by correcting a
mistake in the name of the party, or a mistake in any other respect; the
amendment does not supersede the original complaint; it is added to the
Complaint and becomes part of it.
An amended pleading is a pleading that is entirely rewritten pertaining to matters
of substance, and is used in place of, and supersedes the original pleading; an
amended Complaint should be verified the same as the original Complaint and a
Summons issued and served on un-served defendants, and time to answer or
otherwise respond is within 30 days for personal service.
A supplemental pleading (CCP 464-465) is filed on noticed motion or upon
stipulation of parties and it alleges facts material to the case occurring after the
original pleading has been filed. A Supplemental Pleading is merely an extension to
the case made by the original pleading and it can only bring up matters that occur
after the commencement of the action. It may be filed any time before judgment.
Discovery
At any stage of the proceedings, after the complaint is filed, an attorney for a
party to the action may compel the attendance of a witness for the purpose of
giving testimony at trial, a deposition or other proceedings, by preparing a
subpoena and then causing it to be served on the prospective witness. A party
appearing in pro per must have the clerk of the court issue a subpoena. A clerk
can pre-issue a subpoena, but it must be filled in by the party prior to service. An
attorney is an officer of the court and may prepare, issue, and serve a subpoena
without the court’s assistance. An attorney may wish to have a pre-issued
subpoena from the clerk but it is not required in the same way as it is for a pro per
party who is not an officer of the court.
When it is desirable to have the witness bring specified books, documents, or
other things under their control to the hearing, a subpoena duces tecum is issued.
An affidavit showing good cause is prepared by the party or attorney and
accompanies the subpoena.
Any disobedience to a Subpoena or Subpoena Duces Tecum, refusal to be sworn,
or to testify as a witness may be punished as a contempt of court by the court
issuing the subpoena, and a bench warrant may be issued and served on that
party. A person subpoenaed to appear as a witness is entitled to witness fees
according to the provisions in applicable statutes. A witness may not be obligated
to attend as a witness before any court, judge, justice, or any other officer, unless
the witness is a resident within the state at the time of service, but there can be
exceptions.
There are other various forms of discovery conducted outside the court such as
Request for Admissions and Interrogatories. These types of discovery documents
are not filed with the court by rule. The court does not get involved unless there is
a dispute about the scope of the discovery or a failure of a party to timely answer
the questions as prescribed by statute. A motion to compel discovery is filed with
the court and a ruling is made to either limit discovery or compel a response.
Assistance/Glossary of Civil Terms
A Glossary of Terms may be helpful in understanding civil concepts. Civil actions
can be very complex. You may need the advice of an attorney in order to proceed
with civil action. The clerks in the civil division cannot recommend an attorney to
you or give you legal advice. The San Bernardino County Bar Association has a
Legal Referral Service. You may also contact the California Bar Association for
information on attorneys and areas of specialty. There are various types of legal
aid available in San Bernardino County. See the resources provided on the Court’s
website for more information.
Attachment
After a complaint is filed with the clerk, if the plaintiff wishes to attach the
property of the defendant as security for a possible judgment, the law provides
that he or she may institute attachment proceedings by filing an Application for
Attachment, and shall be supported by Affidavit. A court order and filing of an
undertaking as provided by statute CCP 489.210-489.220, gives the clerk
authority to issue a writ of attachment that is served by the levying officer or
registered process server for the property being attached. The property being
levied upon is held until the determination of the plaintiff’s claim. However, the
United States Supreme Court has declared that the attaching of the defendant’s
wages through this process is unconstitutional, and the California Supreme Court
has ruled similarly. More recently the California State Legislature has passed a bill
that prohibits attachment of wages prior to a court hearing. Consequently, the
levying officer agencies will not serve a Writ of Attachment if it is for wage
garnishment purposes.
There are various methods by which a defendant can release an attachment, but
the one most commonly used is the filing of a motion with points and authorities in
the law and motion unit of the court, and the posting of a bond or undertaking, the
amount of which is determined by the judge if he grants the motion releasing the
attachment.
Post Judgment
If the judgment debtor refuses to pay the judgment creditor or delays payment,
the following options are available:
● An aid in the collection of a judgment is the Court Order for Appearance
of Judgment Debtor, (commonly known as an ORAP). (CCP 708.110) The
court requires a fee. A judgment debtor can be brought by the judgment
creditor into court for an examination as to judgment debtor assets. A
judge or commissioner signs the court order and failure by the judgment
debtor to appear as ordered to answer concerning income and property
may subject them to arrest and punishment for contempt of court if he or
she was personally served the order to appear.
● The judgment creditor may request the issuance of a writ of execution by
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the clerk. A writ of execution is a court paper showing all relevant

information regarding the judgment that the levying officers requires in
order to serve the debtor. The writ is a means of levying on the judgment
debtors property to collect or seize whatever is necessary to satisfy the
judgment, plus costs. (CCP 699.520, 712.010, 715.010, GOV 6103.5)
● The judgment creditor may request the clerk to issue an Abstract of
Judgment which shows the elements of the judgment and when recorded
will put a lien on the real property. The judgment creditor records the
abstract with the County Recorder’s office in the county where the
judgment debtor’s real property is located. The judgment would have to
be paid off in the event of a sale or refinancing of the property.
Another element of post judgment procedure is the Third Party Claim. (CCP
720.220 -720.250) This is a document that can be filed with the levying officer if
some personal property levied on, is claimed by a third party as his/her property.
The claim must describe or identify the property attached, state its reasonable
value and set out facts to show the claimant’s title and right to possession. After
the verified claim is filed with the levying officer, he or she must make a demand
upon the creditor for the posting of a bond if the creditor wishes to contest the
third party’s claim. If the bond is posted, a hearing can be set for a court
determination of the Third Party Claim, deciding which party is entitled to the
property in question.
Default Judgment
A default judgment may be had, if the defendant fails to file an answer or
otherwise respond to the complaint within the time allowed by law after proper
service has been made. The plaintiff may request the entry of default and a default
judgment. (CCP 585-587) The entry of default records the fact that the defendant
defaulted by not answering or responding, or by not answering or responding in
time.
Default judgment proceedings are an important aspect of civil procedure because
judgment can be entered without the necessity of trial court time. A default
judgment by clerk may be entered without judicial review on matters arising from
contracts or recovery of money. In some cases additional proof and evidence are
needed to determine the plaintiff’s claim and the judgment is determined by
means of a default “prove-up” hearing before a judicial officer after which a
default judgment by court is entered.
Venue
Each Superior Court is in a judicial district with definite geographical boundaries,
which are the VENUE of the court. A general matter is within the venue of a
particular court if any of the following conditions are met:
● The defendant lived in the judicial district at the commencement of the
action (CCP 395)
● The contract was entered into or to be performed in the judicial district
(CCP 395)
 ● The accident or injury (tort) occurred in the judicial district (CCP 395)
● The real property in dispute is located in the judicial district (CCP 392)
Occasionally, a civil case arising outside the venue of the court is filed, but it is the
defendant’s responsibility to object to improper venue. Some civil cases are heard
in a central location or region in the county, such as CEQA (California
Environmental Quality Act) matters and some law and motion hearings. See the
Court website for more information and notices about where some specialized
cases types or matters are heard.