… OR, simply wait-and-see (MAY be able to complete motion in 60 days rather than 75 days) JURISDICTION & VENUE Subject Matter Jurisdiction In CA, used to be jurisdictional distinction w/ physically different courts (floors/buildings)… Superior Court over amount-in-controversy (“AIC”) Municipal Court under AIC Transfer move from one court to other … BUT, now, one single court w/ different classifications… Unlimited over $25K Limited under/equal to $25K Limit on limited case in unwaivable court has NO power to award $25+K (NO reason for D to settle for more than/close to $25K)… … BUT, limited are cheaper to litigate than unlimited cases limited discovery, limited pleadings, lower filing fees, affidavits instead of live testimony… … thus, even if seeking $25+K, limited case MAY be more economically sound (i.e. wouldn’t spend $10K extra for opportunity to win $30K instead of $25K) Reclassification changing classification Before reclassification, P must be afforded noticed hearing, as per Walker… … even though Walker applied to transfer from Superior Court to Municipal Court, the standard remains the same ONLY w/ different language Reclassification from… … unlimited-to-limited matter must “necessarily” result in a verdict below $25K (Stern) … limited-to-unlimited ONLY need the “possibility” of verdict above $25K (Ytuarte) Ytuarte an easier standard than Stern… … BUT, there must be some change in circumstance (i.e. new witness, new document, new extent of injury) to justify trial
… thus, when dealing w/ govt. hospital (such as D in Wurts), notices are NOT to be combined (unless made clear that one notice is to satisfy both statutes) Form complaint (CA ONLY) check boxes, fill in blanks Unlike customized complaint (drafted/written), allows for more facts AND more causes of actions… BUT, consequently, is more Form complaint IS judicially-approved… but, NOT immune from demurrer In People Ex Rel. Dept. of Transportation v. Sup. Ct., P sues D (CalTrans) after car accident… BUT, NO causation b/c form complaint used (lacking “ultimate facts… essential to state a cause of action”) D wins demurrer… … BUT, b/c form complaint is generally used in limited cases, AND b/c demurrers are expensive, MAY be better to settle/fight case Code pleading (CA) vs. notice pleading (federal)… Notice pleading requires ONLY notice of what being sued for… … whereas, code pleading requires facts of what being sued for In Bockrath v. Aldrich Chemical Co., P sues D (employer) contracting cancer, claiming that it was caused by chemicals at work… … BUT, connection NOT drawn b/w P’s injury and causation (difficult to determine what actually causes cancer)… … SO, court tells P to add long list of facts to complaint… … though, if P could really add such facts to complaint, then likely would have forced D to settle… … thus, code pleading MAY eliminate bogus lawsuits, BUT also MAY allow Ds to avoid responsibility Subscription vs. verification… Subscription/signature on complaint (CCP § 128.7) as attorney’s representation of good to the court… … whereas, verification is a declaration that complaint is truthful perjury of law) attorneys generally do NOT verify, BUT client MAY Complaint must include statement of AND demand for judgment (CCP § 425.10) Demand for judgment (listed as “Prayer for Relief”) states what P is seeking equity OR $$ damages (AND, possibly, how much)… trial
An answer is a general appearance… whereas, a motion to (usually for lack of personal jurisdiction) is a special appearance In federal court, lack of personal jurisdiction is an affirmative defense, which MAY be included in answer… … BUT, in CA, b/c an answer is a general appearance, lack of personal jurisdiction is waived if NO preceding motion to quash (Roy v. Sup. Ct.) CA does NOT like federal system allowing lack of personal jurisdiction to be raised later waste of time/$$… … thus, D MAY file motion to quash w/ demurrer, motion to strike, OR answer (CCP § 418.10(e)(3))… BUT, once general appearance is made, then lack of personal jurisdiction is waived… … AND, easy to inadvertently to make general appearance make motion to quash narrowly-tailored (do NOT ask for more relief) SoL SoL as most common affirmative defense favored b/c avoids delay… BUT, disfavored b/c there is NO assessment of merits Generally, SoL accrues when last element of cause of action occurs (wrongful act/result occurs AND consequent liability arises)… … BUT, as per discovery rule (exception), SoL delayed until P reasonably should have known OR does know (Norgart v. Upjohn) Best for D to determine the earliest point at which SoL MAY have accrued AND raise as affirmative defense… then, prepare for P to argue for statutory tolling Likewise, best for P to calculate SoL conservatively file as far in advance as possible (if SoL ends on Saturday, file on Friday) Laches equitable SoL (bar late/delayed equity claim, even if SoL has NOT run) Amendments CA allows one amendment to pleading w/ NO court permission (CCP § 472)… BUT, court permission required thereafter Timing of first amendment in CA either before answer/demurrer –OR– after demurrer BUT before trial… … whereas, in federal amendment ONLY until responsive pleading filed permission/costs almost always required (even w/ good grounds)
Able to talk to witness (NO attorney-drafted responses), assess demeanor (MAY videotape)… … fear of depo as negotiation technique (if legitimate) MAY force settlement (impeachment from depo more powerful, difficult for attorney to defend)… … BUT, expensive upward of $1K for court reporter ONLY When deposing entity, ask for person most knowledgeable (“PMK”) entity has good faith obligation to identify PMK In Maldonado v. Sup. Ct., D-entity going through bankruptcy, most likely candidates for PMK since laid off… thus, designated PMK unable to answer ?s at depo D-entity did NOT make whole-hearted effort (simply picked whoever available) P seeks issue preclusion as penalty (limit D’s affirmative defenses b/c of failure to produce PMK/evidence)… BUT, monetary sanction is sufficient Entity’s former employees NOT obligated to cooperate P would have to send subpoena (NOT notice)… OR, D-entity would have to pay for former employee’s appearance P MAY draft depo notice narrowly so as to force D to designate specific person as PMK (OR, MAY negotiate in advance)… … BUT, if entity has freedom to choose PMK, need ONLY be in good faith lower-level employees are missed less on the job… BUT, upper-level employees are more sophisticated/trainable Physical/Mental Examinations… In CA self-executing (by court order in federal), 30 days notice before exam Physical exam routine in personal injury/workers comp. (often by cooperation)… BUT, mental exam more rare (subject to limitations) Counsel allowed to be present at physical exam (CCP § 2032.510(a)), usually NOT mental exam (unless court order)… whereas, in federal court, need good cause to have counsel present at either exam Limitations re: mental exams… In Vinson v. Sup. Ct., P sues D for sexual harassment, alleges emotional distress b/c emotional distress at issue, D allowed mental exam of P…
… thus, such motion would likely occur toward end/latter half of discovery P must first obtain evidence to amass showing of punitive damages claim DISPOSITION WITHOUT TRIAL Judicial Arbitration Judicial arbitration NOT actually “judicial” (NO involved)… AND, NOT actually “arbitration” (NOT binding) As opposed to pay retired judge (separate system of justice for those w/ $$) As opposed to contractual arbitration private agreement b/w parties Differences b/w judicial arbitration AND contractual arbitration (as per Porreco v. Red Top RV Center)… Contractual arbitration is voluntary (agreed to)… whereas, judicial arbitration is inflicted upon by court Contractual arbitration usually binding (waiver of jury trial)… whereas, de novo trial MAY follow judicial arbitration Party that is dissatisfied w/ award in judicial arbitration may file (within 30 days) Request for De Novo After Judicial Arbitration need ONLY identify self (as P/D) AND check box… … BUT, if dissatisfied receives less/same award after de novo then must pay opposing party’s court costs/expenses (MAYBE attorney’s fees) Judicial arbitration ONLY as good/bad as arbitrator sometimes, both parties request de novo Rules of evidence do NOT apply in contractual arbitration… BUT, do apply (w/ some modifications) to judicial arbitration Typically, NO discovery in contractual arbitration… BUT, regular discovery in judicial arbitration Case w/ $50K or less will be sent to judicial arbitration likely less complicated (one-P-v.-one-D), reduces court workload… Contract dispute Car accident Case Management (“Fast Track” Rules) Case Management Conference/Statement puts a lot of info before at early stage allows court to determine time frame 25 case management factors (CRC 3.729) used to determine whether date will be set sooner or later… trial
… SO, if seeking trial date A.S.A.P., must be well-versed in factors AND case NO clear line b/w client’s conduct AND counsel’s conduct terminating sanction OK if client has awareness of counsel’s conduct In Garcia v. McCutchen, P’s counsel repeatedly blows off hearings (monetary sanctions having NO effect) court issues terminating sanction (dismissing P’s case)… … BUT, reversed on appeal P is ultimately hurt by P’s counsel’s noncompliance P should bear some responsibility could have hired new counsel (though, MAY not be possible… AND, MAY have been falsely reassured by counsel)… … BUT, legal malpractice claim against counsel MAY not be fair exchange must prove that counsel committed malpractice (several elements) AND “case within case” (would have won underlying case) Dismissal Distinction #1… Dismissal w/ prejudice may NOT refile Dismissal w/o prejudice MAY refile (assuming SoL has NOT run) Distinction #2… Involuntary dismissal as per court’s action/discretion Voluntary dismissal as per Request for Dismissal Voluntary dismissal w/o prejudice ONLY at “any time before the actual commencement of trial” (Franklin Capital Corp. v. Wilson)… … BUT, unclear when trial actually commences (depends on case law) Involuntary dismissal is mandatory as per “5-yr. rule” (state-wide)… BUT, as per case management, involuntary dismissal is discretionary within 2-3 yrs. In Landry v. Berryessa Union School District, D seeks discretionary involuntary dismissal as per P’s delay trial NOT brought within 2 yrs. (AND, P, as minor, entitled to trial setting preference)… … BUT, P argues that delay was result of settlement negotiation w/ D court NOT satisfied w/ P’s excuse (notwithstanding negotiations, huge time gap w/ NO action)…
… SO, P’s case dismissed, AND affirmed on appeal NOT an abuse of discretion by court (BUT, b/c discretionary, other court MAY have found differently) Exception to “5-yr. rule” impracticability… 3 factors of impracticability… Circumstance of impracticability Causal connection Reasonably diligent in prosecuting In Tamburina v. Combined Insurance Co. of America, trial NOT brought within 5 yrs. b/c of issues w/ P’s health AND P’s counsel’s health… Circumstance of impracticability YES (P AND P’s counsel both seriously ill at different times… AND, anything less than serious illness would NOT have been sufficient) Causal connection YES (illnesses covered bulk of 5-yr. period… AND, P unsuccessfully tried to find new counsel) D’s counsel in Tamburina stipulated to extension b/c of said health issues… … BUT, stipulations NOT clear re: whether running against rule” opponent MAY stipulate for purpose of moving for mandatory involuntary dismissal Reasonably diligent in prosecuting ?? (remanded on this issue) Default If D to respond to complaint, then P files Request for Entry of Default within 10 days (CRC 3.110) NOT automatic… AND, again, Statement of Damages must precede (if applicable) After Request for Entry of Default, P files Request for Entry of Default Judgment (within 45 days)… … then, prove-up hearing (CCP § 585) basics vary from court-to-court (some more trial-like than others) Default as sanction… In Greenup v. Rodman, D responds to complaint, BUT behaves (blows off document production) court grants P’s motion for default… … BUT, P did NOT plead damages in complaint (ONLY alleged in excess of jurisdictional requirements) expected evidence of damages during discovery allows P to file first amended complaint… BUT, if D responds to first amended complaint, then P loses default…
Judgment Notwithstanding Verdict (“JNOV”) (CCP § 629) jury has reached verdict, losing party asks trial judge to reverse… … essentially, a second chance at directed verdict (if directed verdict lost, OR if NO motion for directed verdict made) judges dislike directed verdicts… Judges do NOT want directed verdict reversed on appeal… … AND, unfair for jury to follow entire trial ONLY to NOT be allowed to deliberate jury MAY end up reaching correct result, anyway (AND, if NOT, then JNOV available) Motion for New Trial (CCP § 657) Unlike nonsuit/directed verdict/JNOV, a traditional written motion NOT done orally in court Exclusive list of grounds for new trial all big mistakes (i.e. jury misconduct, inadequate/excessive damages) Evidence of such grounds for new difficult to obtain i.e. evidence of jury misconduct (NOT simple misunderstanding) may ONLY come from talking w/ jurors after case… … AND, MAY not be able to talk to jurors after trial (though, some judges more proactive in keeping jurors around after verdict) Additur/remittitur (CCP § 657(5)) power to rewrite verdict, make damages higher/lower (depending on whether damages are inadequate/excessive) “Ballpark” test (similar to “877.6 motion”) whether $$ amount of damages related to proof/facts (NOT emotion/argument/ miscalculation) Party moving for additur/remittitur has choice accept court’s rewriting OR new trial Courts have power to do both (though, remittitur ONLY in federal court)… BUT, rarely do so (fear of being reversed, stepping on jury’s toes) If one party moves for additur, AND opposing party moves for remittitur, court will probably ignore both (jury got it right) Relief from Default/Judgment (CCP § 473(b)) Discretionary (“may”) just relief from default/judgment available mistake, inadvertence, surprise, OR excusable neglect
Neglect is “excusable” by RPP standard (as opposed to conduct which falls below professional standard of care)… … BUT, relief ONLY available from default/judgment NOT for missed motion deadline, SoL, etc. (NO “473(b) motion” for late “473(b) motion”) Mandatory (“shall”) relief available mistake, inadvertence, surprise, OR neglect (NOT excusable)… AND, accompanied by attorney’s sworn affidavit of fault Client would prefer “473(b) motion” over legal malpractice claim (which, again, is difficult to prove)… … BUT, may NOT be preferable to attorney must pay mandatory fees/ costs… AND, must write sufficient affidavit connecting own error to default/judgment Practical to both discretionary relief AND mandatory relief… If neglect is excusable, then discretionary (NO fees/costs)… BUT, if neglect is NOT excusable, then stuck w/ mandatory If attorney will NOT sign affidavit (OR, affidavit insufficient), then discretionary… AND, if does NOT grant discretionary relief, then attorney likely faces legal malpractice claim If error occurred before client retained attorney, OR client’s own fault, then discretionary… AND, if NOT granted, then NO legal malpractice claim as fall-back Timing issues… Discretionary relief must be sought reasonably within 6 months Mandatory relief must be sought within 6 months (NO mention of reasonableness… BUT, nonetheless, should act within reasonable amount of time Clerical mistake good basis for “473(b) motion” In Zamora v. Clayborn Contracting Group, Inc., P’s counsel (via secretary) makes typo in “998 offer” “against” instead of “in favor of” (appears if P willing to pay $149K to settle)… … BUT, the law “looks with particular disfavor on a party who, regardless of the merits of his cause, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary” court finds it “hard to believe that [D] had no inkling that [“998 offer”] was a mistake” D’s counsel had competing ethical obligations to fully represent client (accept “998 offer”)…
P’s affirmative defenses NOT “actually litigated” (NO fair trial, as per federal court)… … BUT, nonetheless, “could have been litigated” (majority rule in CA) Miscellaneous In Vandenberg v. Sup. Ct., arbitration b/w 2 parties result reached, confirmed as judgment… … then, losing party attempts to sue 3rd party (NOT involved in arbitration) preclusive effect of arbitration as to non-parties… NO issue preclusion upon non-parties, unless agreed to (though, unlikely for non-party to agree as such)… BUT, w/ many open-ended exceptions… … though, CCP § 1287.4 states that arbitration award has “the same force and effect” as a judgment… If read literally, then YES issue preclusion… … BUT, public policy does NOT literal reading litigating party may NOT have litigated as forcefully as subsequently-barred (potential to turn arbitration into litigation) CA Civ Pro Federal Civ Pro Amount-in-controversy (“AIC”) $25+K for unlimited case $75K for diversity jurisdiction Case for less than AIC Reclassification from unlimited to limited (if filed as unlimited) NO diversity jurisdiction (case dismissed must be refiled in state court) Venue Arranged by county Arranged by federal district Contracting around venue Enforceable to select state (if reasonable)… but, NOT to select county within state (if conflicting w/ CA rules) Enforceable, depending on convenience/serving justice, arms-length/bargained-for For forum non conveniens, if alternative forum does NOT permit litigation of subject matter in dispute… Alternative forum NOT rendered unsuitable Alternative forum MAY be unsuitable (an important consideration) Form complaints YES NO Code pleading vs. notice pleading Code pleading Notice pleading Statement of Damages YES NO D bringing suit against P/ co-D/3rd party Cross-complaint Counterclaim/crossclaim/ impleader
Compulsory “Related cause of action” “Logical relationship” (sometimes used in CA) Answer General denial OK if unverified complaint… otherwise, answer must paragraph-by-paragraph NO general denial available (answer always Lack of personal jurisdiction Waived if NO motion to quash before general appearance (i.e. demurrer, motion to strike, answer) MAY be raised in answer as affirmative defense Amendment of complaint One amendment w/ NO court permission if before demurrer/answer –OR– after demurrer BUT before trial… court permission required thereafter Amendment ONLY until responsive pleading files… AND, court permission almost always required DOE D(s) YES (3 yrs. to replace w/ real D(s)) NO Anti-SLAPP motions YES NO Automatic discovery obligation NO (NO entitlement w/o request) YES (NO request necessary) Interrogatories allowed 35 25 Form interrogatories YES NO Supplemental interrogatories YES (NO duty to update answers if NOT asked) NO (duty to update answers) Depositions Unlimited 10 up to 7 hrs. each Physical/mental examinations Self-executing By order Presence of counsel at examination YES physical exam, NOT mental exam (unless court order) NO (unless showing of good cause) Production/inspection of documents and things NOT automatic YES automatic Requests for admissions 35 NO limit Failure to respond to requests for admissions Motion to Deem Admitted Deemed admitted w/ NO response “998 offers” May be made by either P OR D, AND revocable at any time May be made ONLY by D, AND irrevocable for 10 days
Motion for summary judgment Evidence AND separate statement of undisputed facts required Evidence and separate statement of undisputed facts NOT required (though, usually included) Timing of motion for summary judgment 75 days before hearing 10 days before hearing Bifurcated trial w/ legal and equitable claims Equity first, then law (“equity first” rule) Law then equity Challenging judge in bench trial Need NOT facts/ reasons for prejudice Must state facts/reasons for prejudice (NOT commonly used) Nonsuit vs. directed verdict Nonsuit P’s opening statement/case-in-chief, directed verdict before jury reaches verdict (whether or not submitted to jury) Combined as judgment as a matter of law Additur/remittitur Both Remittitur ONLY Claim preclusion Primary Rights Theory Transactional Theory Issue preclusion “Could have been litigated” “Actually litigated” Appeal pending NO issue preclusion YES issue preclusion Default judgment YES claim preclusion AND issue preclusion YES claim preclusion, NO issue preclusion