A process server just handed you a summons. Or your assistant forwarded an email from an attorney representing your former shift manager. Your stomach drops. Your first instinct is to call the employee, call your bookkeeper, or call the manager who did the firing. Do not do any of those things yet.
The first 48 hours after an employee files a lawsuit against your California business are the most consequential hours of the entire case. What you do (or fail to do) in this window can preserve or destroy your defense, protect or void your insurance coverage, and set the tone your judge and jury see two years from now. Attorneys often say cases are won or lost before the answer is ever filed. That is truer here than in almost any other kind of dispute.
This post is not a rundown of your legal rights or a summary of California employment law. Those matter, and you can read our companion piece on Employer’s Legal Rights: What to Do When an Employee Files a Lawsuit once the smoke clears. Right now you need a checklist. Below is what to do, hour by hour, starting the moment paper hits your hand.
Hour 1: Stop Talking To Everyone
The single most damaging thing California business owners do in the first hour after being served is talk. To the employee. To coworkers. To the manager who fired the plaintiff. To their spouse over coffee. To their bookkeeper on the way out the door. Every one of those conversations is potentially discoverable, potentially witnessed, and potentially the first sentence of your deposition transcript.
If the plaintiff still works for you, do not contact them, confront them, discipline them for filing, or change their assignments in any way. Any of those actions can support a retaliation claim under Labor Code section 1102.5 or under FEHA, and a retaliation claim can easily outlive and outsize the original claim. Retaliation is often the easier case to prove, and juries do not like it.
If a manager or HR person needs to know the lawsuit exists in order to prevent an accidental retaliation problem, tell them in a closed-door conversation and share nothing beyond what they need. Do not post about it on LinkedIn. Do not text your business partner from your personal phone. Do not vent in a WhatsApp group with your fellow founders. Silence is the safest posture until your attorney is on the case.
Hour 2: Freeze Every Record. Issue a Litigation Hold
Within the first two hours, you need to stop the automatic destruction of anything the case might touch. That means suspending auto-delete rules on email, Slack, Teams, and Google Workspace. It means pausing document retention purges on your HR system, your payroll platform, and your surveillance cameras. It means halting any planned cleanouts of the former employee’s desk, laptop, or phone.
California courts take spoliation of evidence seriously. Under Evidence Code section 500 and cases like Cedars-Sinai Medical Center v. Superior Court, a jury can be instructed to assume that deleted or lost evidence would have hurt you. That single instruction has decided cases that otherwise had strong defenses. Do not give the plaintiff’s attorney that gift.
Send a written litigation hold notice to every employee who might have relevant documents. Keep it short and clear. Something like: "We have received a legal claim from [employee]. Preserve all emails, texts, files, and records that relate to their employment, termination, performance, or complaints. Do not delete anything. Do not modify anything. Ask before printing or forwarding." Save a copy of the notice and confirm delivery.
If your IT is outsourced, call the vendor and put them on notice in writing that deletion protocols are suspended pending further instruction. Get a written acknowledgment back the same day. If you use camera systems with a rolling overwrite (most systems overwrite in 14 to 30 days), pull the relevant footage immediately or extend the retention window.
Hour 6: Notify Your EPLI Carrier. The Clock Is Already Running
If you carry an Employment Practices Liability Insurance policy, this is the single most time-sensitive item on the entire checklist. Most EPLI policies are "claims-made" policies. That means coverage is triggered by when you report the claim, not by when the underlying conduct occurred. Report late, and the carrier can deny coverage entirely, even for a claim that would otherwise be fully covered.
Most policies require notice "as soon as practicable" or within a defined window such as 30 or 60 days. Do not test the outer edge of that language. Report within the first business day. Send the notice by both email and certified mail to the claims address listed in your policy. Include a copy of the summons, the complaint, and any pre-litigation demand letter you received.
If you are not sure whether you have EPLI, look at your commercial general liability declarations page or contact your broker immediately. Some CGL policies contain limited EPLI endorsements, and others do not. If you have never read our overview of What Is an Employment Practices Liability Policy, now is the time. Even a quick read helps you know what to ask your carrier before the adjuster starts making decisions for you.
While you are on the phone with the carrier, ask three things in writing: the claim number, the name and direct contact for the assigned adjuster, and confirmation of your right to select defense counsel. Many EPLI policies allow the insured to choose counsel with carrier consent, especially in California under Civil Code section 2860 when a conflict of interest exists. Know your rights before agreeing to whichever attorney the carrier sends by default.
Hour 12: Read the Complaint Carefully. Note the Deadlines
Once you have paused, preserved, and reported, sit down with the actual complaint. Read it twice. On the second read, take notes on the following.
The exact date and method of service. Personal service, substituted service, and service by mail each carry different response deadlines. In California state court, a defendant generally has 30 days after personal service to file a responsive pleading under Code of Civil Procedure section 412.20. Miss that date, and you can face a default judgment for the full amount pleaded.
The court and case number. Confirm the case is in the correct venue. Plaintiffs sometimes file in the wrong county on purpose, and you may have grounds for a motion to transfer.
Every named defendant. Are you personally named alongside the business? Is a co-owner named? Are any managers named individually? Each named defendant may need separate legal representation, especially if their interests could diverge from the company’s interests down the road.
Every cause of action pleaded. Wrongful termination, FEHA discrimination, wage and hour, retaliation, PAGA, defamation, breach of contract. The specific mix of claims tells your attorney which insurance policies may respond, which experts will eventually be needed, and which motions are likely to succeed early.
Any request for injunctive relief, a temporary restraining order, or an ex parte application. If the complaint includes any of these, you may have days rather than weeks to appear. Read the caption page for hearing dates before you assume the standard 30-day clock applies.
Do not attempt to answer or respond yourself, even informally. Read to understand. Nothing more.
Hour 24: Retain Counsel. Not Just Any Counsel
By the end of the first day, you need a California employment litigation attorney on the case. General business attorneys, transactional lawyers, and family friends who happen to have a law degree are not substitutes here. Employment litigation in California has its own procedural quirks, its own body of case law, and its own strategic norms that only regular practitioners understand at the level required to defend you.
When you interview counsel, ask five questions.
How many California employer-side employment cases have you defended in the last three years? You want a specific number, not an anecdote.
Have you handled cases in the county where the complaint was filed? Familiarity with the local bench matters more than most business owners realize.
Do you have direct experience with the specific claims the plaintiff has pleaded? A PAGA specialist and a wrongful termination trial lawyer are not the same lawyer, and a firm that handles one well may not handle the other at the same level.
Will your firm accept the rate my EPLI carrier is offering, or will I need to pay the difference? Some of the strongest defense counsel in California do not accept panel rates. Know this before you sign the retainer, and decide whether you would rather pay the gap for the right lawyer or accept panel counsel.
What is your recommended first move? Demurrer, motion to strike, answer, mediation, or something else. A confident and specific answer here signals a lawyer who has already thought about your case in the first meeting. A vague answer is a warning sign.
Hour 36: Send the Preservation Letter to the Plaintiff (Through Counsel)
Your attorney will typically send a preservation letter to plaintiff’s counsel within the first day or two of being retained. This letter formally requests that the plaintiff also preserve their text messages, emails, social media posts, and any other records relating to their employment and the claims. The letter matters because plaintiffs frequently continue to post, delete, and edit their social media after filing, sometimes deleting posts that would have been powerful defense evidence.
A written preservation letter creates the record you will need if the plaintiff spoliates evidence later. Without it, a plaintiff who deletes Instagram stories showing them working at a new job the week after their "disability" leave began can claim they did not know they had a duty to preserve. With it, the same conduct becomes an issue you can raise with the court.
Hour 48: Calendar Every Deadline. Build the Case File
By the two-day mark, your defense team should have a case calendar populated with the following dates.
The responsive pleading deadline (30 days from personal service in most California state court cases). The deadline to demand a jury trial (usually at or before the first case management conference). The deadline for initial disclosures if the case is in federal court. Response deadlines for any discovery served with the complaint. The EPLI carrier’s status update schedule.
Your attorney will typically maintain this calendar, but you should keep your own copy and check it weekly. Missed deadlines in California employment cases lead to terminating sanctions, deemed admissions, and default judgments faster than most business owners expect, and few things damage a defense faster than a preventable procedural loss in the first sixty days.
Also by the 48-hour mark, create a single secure folder (encrypted and access-limited) containing the summons, the complaint, the plaintiff’s personnel file, the plaintiff’s timekeeping and payroll records, any relevant contracts or offer letters, the arbitration agreement if any, the employee handbook in effect during the plaintiff’s employment, and all written or texted communications between the plaintiff and management. Provide this to counsel with an index. Do not add or delete anything from the folder after it is created without your attorney’s knowledge and written approval.
What Not to Do in the First 48 Hours
Do not respond to the plaintiff’s demand letter yourself. A well-intentioned "we deny all of this" reply from you becomes an exhibit at trial and is often used to establish your state of mind at a moment when the strategic silence would have served you better.
Do not offer the plaintiff money to make it go away. Any settlement outreach should go through counsel. Direct offers can be admissible in some circumstances, can be misinterpreted, and can waive strategic advantages before your lawyer has had a chance to evaluate the case.
Do not conduct your own witness interviews. Notes from those interviews can become discoverable, coworkers can feel pressured in ways that create entirely new claims, and you can accidentally shape the memories of the witnesses you need most.
Do not fire the plaintiff (if they still work for you) because they sued. That is textbook retaliation under Labor Code section 1102.5 and FEHA, and California courts do not treat it kindly. If separation was already in motion for legitimate business reasons, pause and consult counsel before pulling the trigger.
Do not delete anything. Not one email. Not one text. Not one voicemail. Not one meeting recording. Not one draft. The instinct to "clean up" is the fastest way to convert a defensible case into an indefensible one.
The First 48 Hours Are About Discipline, Not Strategy
Strategy comes later, and it comes from your lawyer. The first two days are about discipline. Not talking. Not deleting. Not delaying insurance notice. Not signing anything without counsel. Business owners who follow this checklist hand their defense team a full toolkit. Owners who skip steps hand plaintiff’s counsel gifts that no defense strategy can fully recover from later.
An employee lawsuit is scary. It threatens your livelihood, your reputation, and the business you built. The good news is that the first 48 hours are almost entirely within your control, and the actions above are things any owner can execute even before the first strategy meeting with counsel. Do them in order. Do them promptly. Then let your defense team do their job.
Facing an Employee Lawsuit in California? Call LawPLA Before the 48-Hour Window Closes
If you have just been served with an employee lawsuit in California, the clock has already started. The Law Offices of Parag L. Amin, P.C. defends business owners across Los Angeles and throughout California in employment litigation, partnership disputes, and business claims. Our team steps in fast, coordinates directly with your EPLI carrier, and builds the defense record you need before plaintiff’s counsel starts serving discovery. Call our Los Angeles business litigation attorneys today at (213) 293-7881 or request a confidential case evaluation online. Get an experienced defense team on your matter before the 48-hour window closes.