How to Litigate a Personal Injury Action in California: A Practical Guide
Litigating a personal injury action in California is a complex but manageable process if you are proactive, organized, and aware of the statutory framework. Whether you are a plaintiff seeking fair compensation after an accident or find yourself named as a defendant, this guide outlines each step of the process—and places you in the best position for success.
Mind the Statute of Limitations
The very first step in any California personal injury action is a race against the calendar. Most personal injury cases must be filed within two years of the date of injury. The clock starts ticking on the day the injury occurs. Miss the deadline and, no matter how strong your case, the court will almost always dismiss it. Code Civ. Proc. § 335.1.
If your claim is against a public entity—such as a city, county, or state agency—the law is even stricter: You have only six months from the date of the loss to file a written notice of claim before you can even think about suing. Gov’t Code § 911.2.
Tip: Contact an attorney (like myself) as soon as possible after an incident and provide all relevant documents and evidence up front to ensure critical deadlines are not missed.
Building Your Case: Documentation and Authorizations
The foundation of any personal injury case is strong, well-organized evidence. This means promptly seeking medical treatment, documenting your injuries, gathering witness information, and keeping a file of photographs and communications.
To obtain the records necessary to support your case, you will likely be asked to sign both a general authorization and a HIPAA authorization. The general authorization allows your attorney to obtain relevant non-medical documents from third parties, such as employment or insurance records. A HIPAA authorization, by contrast, permits access specifically to your private health records, in full compliance with federal privacy law.
Without your signed authorizations, your legal team (and, later, insurance adjusters or the court) cannot review the records essential to proving your losses. With them, your attorney can assemble a compelling, comprehensive claim from the outset—significantly improving your credibility and the prospects for early settlement.
Settlement Negotiations Before Litigation
Often, the first step your attorney will take is to prepare a formal demand letter, outlining your injuries, attaching relevant bills and records, and inviting the other side to settle. With all necessary authorizations in place, this letter can be thorough and persuasive, giving you the best shot at a fair, efficient resolution.
If the insurance company or opposing party refuses to settle or disputes liability or damages, you and your attorney may decide litigation is necessary.
Initiating the Lawsuit
The action formally begins by filing a complaint in the correct California Superior Court. This document should clearly lay out what happened, why the defendant is legally responsible, and what damages you seek. Code Civ. Proc. § 425.10.
After filing, you must officially serve the summons and complaint on the defendant, usually within sixty days. The rules of service are strict; failure to complete proper service can stall or even end your lawsuit. Code Civ. Proc. § 412.20; Code Civ. Proc. § 583.210.
Once served, the defendant generally has thirty days to respond, either by filing an answer contesting your claims or by mounting a legal challenge to the complaint (for example, a demurrer). Code Civ. Proc. § 430.40. If the defendant fails to reply within the allotted time, you may seek a default judgment. Code Civ. Proc. § 585.
Discovery: Exchanging Information
After the pleadings phase, both sides move into discovery—the exchange of information and evidence. Discovery is critical because it allows each party to test the other’s factual allegations and prepare for trial.
This process includes written questions and requests for documents (such as medical and employment files), depositions, and, where appropriate, physical or mental examinations. California’s rules governing discovery are broad, permitting inquiry into any non-privileged matter relevant to the case. Code Civ. Proc. §§ 2017.010–2036.050.
As a plaintiff, expect defense counsel to scrutinize your medical records and prior injuries. As a defendant, you will want to request all records that might shed light on the plaintiff’s injuries, treatment, and the accuracy of the claimed damages.
Moving Toward Resolution: Pre-Trial Motions and Settlement Conferences
As discovery ends, parties may file motions aimed at narrowing or resolving issues before trial. For example, a motion for summary judgment asks the judge to rule on the case if there are no important facts in dispute. Code Civ. Proc. § 437c.
California courts also require parties to take part in settlement conferences before trial proceeds. These sessions, overseen by a judge or neutral mediator, are designed to encourage settlement and help the parties avoid the time and expense of trial. Code Civ. Proc. § 575.1.
Most cases settle before reaching the courtroom, but not all do.
Trial and Verdict
If your case reaches trial, both sides present evidence—including witness testimony, expert opinions, and (with your prior authorization) medical records or bills. The plaintiff must prove that it is more likely than not that the defendant’s conduct caused the injuries. Evid. Code § 115.
Victory at trial can mean a substantial damages award, including medical costs, lost wages, pain and suffering, and more. However, trials are uncertain and often stressful, making strong pretrial work and negotiation vital.
Practical Tips for Plaintiffs and Defendants
Plaintiffs:
Act quickly to protect your claim.
Provide general and HIPAA authorizations as soon as possible so your attorney can collect the necessary documents.
Be proactive in record-keeping and honest about prior injuries.
Defendants:
Never ignore a complaint—respond within the deadline and retain all potentially relevant evidence immediately.
Use discovery to challenge the plaintiff’s evidence and consider whether early settlement is possible.
Common defenses include arguing the statute of limitations has expired, disputing that the defendant caused the injury, and asserting comparative negligence—that the plaintiff was partly to blame, which can reduce damages. Code Civ. Proc. § 335.1; Civ. Code § 1431.2.
Conclusion
Litigation can be daunting, but with diligence, clarity on the process, and the right legal guidance, both injured parties and defendants can navigate California’s personal injury system effectively. From statutes of limitation to privacy laws governing records, each step matters. Be prompt, be thorough, and be prepared—these are your best tools inside and outside the courtroom.
Key Statutory Citations
Code Civ. Proc. § 335.1. (statute of limitations for personal injury)
Gov’t Code § 911.2. (claims against government entities; notice requirement)
Code Civ. Proc. § 412.20. (procedure for serving summons and complaint)
Code Civ. Proc. § 425.10. (requirements for contents of complaint)
Code Civ. Proc. § 430.40. (time to respond to complaint)
Code Civ. Proc. § 437c. (summary judgment motion procedure)
Code Civ. Proc. § 575.1. (mandatory settlement conferences)
Code Civ. Proc. § 583.210. (time limits for service of summons)
Code Civ. Proc. § 585. (default judgments)
Code Civ. Proc. §§ 2017.010–2036.050. (discovery procedures)
Evid. Code § 115. (preponderance of the evidence standard)
Civ. Code § 1431.2. (comparative fault and apportionment of damages)
