Civ Pro II Outline Roberts/Spring 2002

I. Overview of Civil Actions A. Theme: “How to get through the pretrial phase of litigation” B. Jurisdiction of the court -- what court can you file in? 1. In this class assume Cal court has jurisdiction a. Venue (which county can you sue in?) i. if you file in the wrong county the D can get moved to a different county ii. Also, research the substantive law re what demands to make 2. Pleading Stage of Litigation a. Drafting The Complaint i. What are your causes of action? ii. What legal theories are you going to pursue? iii. What are the parties to the action? iv. Co-Plaintiffs? v. Who are the defendants? Others? vi. Who CAN you sue? vii. What can you sue them for? b. Filing The Complaint c. Serving The Complaint i. the D acknowledges the problem ii. if D doesn’t respond to a complaint you can get a DEFAULT judgment (same as judgment) 3. Defense a. Demurrer = response that says “so what – even if everything the complaint states is true, there is no valid cause of action” i. Consider Strategy – when do you want to do something? ii. Consider Money -- is doing a particular thing worth the cost? b. Motion to Strike = there is something in the complaint that shouldn’t be there i. use for punitive damages allegations c. Motion to Quash for Improper Service (if D hasn’t been served properly), i. use this if you need more time for your client ii. might not be worth it if it will not buy you any real time, will just make the judge angry iii. May want to use this if the client is difficult to find and this may buy you some time. iv. Don’t use this if the client is sitting in the courtroom!! d. Motion to Quash b/c not sufficient contacts w/ client, etc. 4. Answering the Complaint a. Can admit or deny the allegations of the complaint i. file ii. case is now “at issue” = pleading stage is at an end iii. Motion to Change Venue (to a proper county)

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iv. Motion for Judgment on the Pleadings (probably wouldn’t use this though) v. Amendments vi. Defaults 5. Discovery (litigation is discovery) a. Definition = trying to get info from the other side about the case b. Must follow the rules of discovery c. Discovery Devices i. Depositions (can include non-party witnesses) ii. Interrogatories = written questions to the other side iii. Request for Production of Documents iv. Request for Admissions v. Request for Medical Examination vi. Expert Witnesses vii. Discovery Privileges viii. Discovery Sanctions ix. How to compel discovery x. Protective Orders d. Motion for Summary Judgment e. Trial or Settlement i. at this time the attorney can see what the risks are if you go to trial ii. can better predict at this time whether will win or lose b/c both sides have the information C. 1987 – Trial Delay Reduction Act -- moved cases to trial faster 1. Cal Authority Hierarchy is as follows: a. Codes / Statutes i. CRC = Cal Rules of Court (cannot contradict the statutes) ii. Local Rules of the County (can’t contradict the Cal Rules of Court) iii. Los Angeles Rules mirror the Cal Rules of Court iv. Local, Local Rules (branch courts) v. Judges Rules (judges make rules for their courtrooms) b. Delaying the case going to trial benefits the D i. P wants relief quickly as possible but the D wants to stall b/c doesn’t want to pay the money. ii. There is no pre-judgment interest in California (between filing and judgment). If P appeals, P gets post-judgment interest. For example, if D delays the trial for 5 years to pay $100K at 20% the D has made the money for the case) (not a good example now but remember the point) D. Results of the Delay Reduction Act: 1. Rule 7.0(b) goals: 90% of all civil cases should be settled, dismissed or tried within one year of filing. 2. Direct Calendar System – when case is filed it goes straight to one judge that you get from the outset and keep for the duration of the case.

Page 2 of 73 Civ Pro II Outline Roberts/Spring 2002 a. This judge is accountable for meeting the time standards for the case. This can help the attorney who must not do stupid things in front of the judge. Always must appear to be ethical and honest and trying to move the case forward. It helps the system. This lessens the instances on frivolous demurrers b/c gives the judge a bad impression. b. The Judges control the pace of the cases. (used to be on the lawyers in the Master Calendar System – didn’t have the same judge for pretrial and trial) II. Fast Track Rules A. 7.6(d) Case Evaluation Factors – Court shall estimate the maximum time that will reasonably be required to dispose of each case in a just and effective manner. Factors include 1) type of action 2) # of parties 3) # of causes of action and 4) complexity of issues, and so on 1. Case Evaluation Factors – are used in estimating the maximum time needed for a case. They are used in deciding whether the judge will use Plan 1, 2, or 3 per 7.6(c)(2)(a), (b) and (c) i. Plan 1, disposition within 12 months ii. Plan 2, disposition within 18 months iii. Plan 3, disposition within 24 months B. Exceptional cases – If, judged by the factors in 7.6(d), the court exempts the case from the case disposition time goals, the court shall establish a Case Progression Plan and monitor the case to ensure timely disposition consistent with the exceptional circumstances, with a goal for disposition within 3 years. C. Rule 7.7 Disposition of Cases (timing) 1. 7.7(a) Special Time Standards. Time standards are set to facilitate processing the cases within the goals of the fast track rules. Must file the complaint within the statute of limitations a. 7.7(a)(1) Complaints – i. must be served within 60 days (2 months) of filing and ii. proof of service must be filed within 90 days of the filing date iii. unless an appearance is made within said 90 days. b. Note: Give the time of filing serious consideration. You may want to wait to file so that the time clock will not start to run. May want to investigate or negotiate before you serve. i. Remember: After serving, you have 30 more days for proof of service c. 7.7(a)(2) Cross-Complaints – i. shall be served within 30 days of the filing date, and ii. proof of service filed within 60 days of the filing date, iii. unless an appearance is made within said 60 days. d. 7.7(a)(3) Pleadings and Motions. All Responses to complaint or cross complaint i. shall be filed and served within 30 days of service. ii. Parties may stipulate without leave of court to one extension of up to 15 days for the response. (you only have this one extension – thus, the most you have is 45 days to give some sort of response.)

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iii. If Demurrers and Motions are filed, the court will, upon the hearing of the motion or demurrer, make appropriate orders regarding the filing of further pleadings. a) All motions and demurrers – shall be filed and set for hearing not less than 15 and not more than 25 days after service of the notice before the assigned Judge. b) Counsel determines the designated day and time for hearings on law and motion and ex parte matters. iv. Amended demurrers and responses: a) The Court upon hearing the motion or demurrer will allow no more than 20 days to amend if a demurrer is sustained and b) no more than 20 days to respond to the amended pleading, c) unless extended for good cause by the Court. d) The court may also set the hearing date for any motion or demurrer to an amended pleading. e. Rule 7.7(4) Time to Request Entry of Default: i. Requests to enter clerk’s default re a D or cross D who has failed to timely respond to a comp or cross complaint shall be filed no later than 45 days after the time has run within which said D or cross D was to have responded. (which is 30 days, or 45 days as per (d) above) ii. 7.7(4)(b) Time extensions are up to the court a) The Court can extend time standards on showing of good cause. b) The parties may not do so by stipulation! iii. 7.7(4)(c) Failure to Meet Time Deadlines for Complaints, CCs, Pleadings and Motions a) may result in issuance of an OSC -- Order to Show Cause why sanctions should not be imposed, including (1) dismissal for failure to prosecute CCP 583.150; CGC 68608(b), or alternatively (2) why other action should not be taken b) at hearing on OSC, the Court may impose sanctions or prepare further orders regarding the prep of case for trial c) failure to attend the hearing on the OSC may result in further sanctions including dismissal of the case! Timeline: (check the math here—go see Roberts)  file  serve within 60 days (proof of svc w/in 90 unless appearance) [7.7(a)(1)] (=60)  File and Serve Response to complaint (or CC) w/in 30 days of service [7.7(a)(2) and (3)] (=90)  get one stipulated extension for response of up to 15 days [7.7(a)(3)] (=105) OR serve cross complaints w/in 30 days from filing [7.7(a)(2)] (=135)  File and serve response to CC w/in 30 days of service 7.7(a)(3)  w/in 30 days of getting response the parties may agree to single continuance of up to 30 days in length. GC 68616(d) (=165)  motions and demurrers must be heard w/in 15-25 days (=190)

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 20 days to amend if motion or demurrer denied (=220)  20 days to respond to amended pldg (=240)  first status conference must be within 270 days (9 months) of filing 7.9(a)

2. 7.8 Case Removed to Federal Court a. court orders date not less than 90 days from date of removal b. counsel files Notice of Status of Removed Case c. If the case has not been remanded to the trial court by that time, it will be recorded as completed without the need to conduct a further status conference [???] didn’t go over this in class??

3. 7.9 STATUS CONFERENCES (p. 124) a. Discovery must be completed within 9 months. 7.9(a) Notice. 7.9(b) (2) i. The first status conference is held no later than 9 months (270 days) after the complaint is filed 7.9(a) a) (this is to accommodate the stipulated continuance in gov code 68616(d) which says that within 30 days of service of responding pleadings the parties may agree to a single continuance not to exceed 30 days.) b) note: there is 210 day prohibition against reference to arbitration to ensure that discovery is continued b/f sending the case to arbitration. THUS IT IS EXPECTED AT THE FIRST STATUS CONFERENCE THAT SUBSTANTIAL DISCOVERY HAS BEEN CONDUCTED. b. Moral: Time Periods are Short in California. Judges want to push the cases forward and will not want to give extensions. Judges will exert pressure to settle. i. They routinely order parties in for settlement conferences. ii. Lawyer and rep of each party that has authority to settle must show up to the settlement conferences. The judge separately tells each side the weaknesses of their case and try to force each side to settle. c. 7.9(b). at the first status conference i. counsel (or party pro per) must appear and be fully prepared to discuss and ii. court may make orders regarding a) (1) ADR, b) (2) Discovery Regulation, c) (3) Bifurcation d) (4) Setting of Settlement Conference (on court’s own motion), e) (5) Written Statements for Settlement Conferences, and f) (6) Court to be notified of settlement. d. 7.9(b)(1) ARBITRATION and Mediation. If a judge rules that a case is worth less than $50K it will get diverted to arbitration and must appear before an arbitrator. Can ask for a new trial but will have to pay the attorney’s fees and costs to the other side. i. counsel selects the mediator but if cant – then judge does it

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ii. Court sets dates for completing arbitration and further status conference after iii. mediator’s statement of agreement of non-agreement must be filed w/in 10 days after the completion date set by the court iv. Arbitration report must be filed by P in Court w/in 5 court days b/f the further status conference (which date was set by judge) D. Ethical matters. 1. Competence. You cannot take a case if you are not competent to take it. 2. Conflict of Interest. a. Current Client. You cannot represent a new client whose interests are conflicting w/o the informed, written consent of your present client. b. Former Client. Not as troublesome. If new case has substantial relationship with the old case, then you may need the old client’s consent. 3. Conduct as a Lawyer. You have a duty to the court and the judicial process. you should not do things that are unethical, done solely to harass or delay, etc. 4. § 128.5 and §128.6. If the court finds that any action taken by a lawyer or party is frivolous, not based on good faith or causes unnecessary delay, the court can order them to pay the other side’s [fees and] costs. a. Torts – Abuse of process. 5. Rule 7.12 Litigation Conduct a. “guidelines” adopted by LA County Bar Association adopted as civility in litigation recommendations to members of the bar on subjects, including i. (a) Continuances and Extensions of time a) reasonable requests should normally be granted as matter of courtesy unless time is of the essence b) additional requests require BALANCING need for expedited process against the deference ordinarily given to opponents schedule, reasonableness of the length requested, opponents willingness to grant extensions, time actually needed, whether a court would grant it. c) shouldn’t refuse to appear “tough” d) no extensions for the purpose of harassment or prolong litigation ii. (b) Service of Papers iii. (c) Written Submissions to the Court iv. (d) Communications w/ Adversaries v. (e) Depositions vi. (f) Document Demands vii. (g) Interrogatories viii. (h) Motions a) before filing motion, counsel should engage in a serious discussion of its purpose in effort to resolve the issue b) L should not force his or her adversary to make a motion and then not oppose it. ix. (i) Dealing w/ non party witnesses a) no subpoena except in connection with their appearance at hearing, trial or deposition

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x. (j) Ex Parte Communications w/ Court xi. (k) Settlement or ADR a) (settlement should be explored in every case as soon as enough is known about the case to make settlement discussions meaningful xii. (l) Trials and Hearings (counsel must be punctual and deal w/ others courteously) III. Lawsuits A. Alternatives to filing a complaint: 1. ADR 2. Demand letter from an attorney 3. Remember: Always calendar the statute of limitations B. “Red Flag” Cases: 1. GC 910 Claims against Public/Gov’t Entities a. If defendant is a PUBLIC ENTITY the gov code provides that you have to file a CLAIM before you file a lawsuit. If not, the suit is barred. b. Sovereign Immunity. Basically, the public does not have the right to sue the gov’t unless the government consents. i. Some government entities have waived the right not to be sued but have added several claims procedures. ii. Rationale: so gov. entity can save public money by settling these claims out of court. However, the tend to go to court anyway. c. Accrual of the Cause of Action. Cause of action accrues when the event underlying the cause of action occurs. GC 901 d. GC 911.2. Time limits for filing claims: i. death, personal injury, personal property & crops = no later than 6 months after the accrual of the cause of action. ii. All other claims = no later than one year after accrual of cause of action. e. Late claims i. must be accompanied by an Application to Present Late Claim in GC 911.4 ii. must be filed within one year of the accrual of the cause of action, and iii. must state the reason for the delay in presenting the claim. 911.4(b) iv. If no application w/ a late claim, then will be returned w/o further action (GC 911.3) a) GC 911.4 The Government then has 45 days to grant or deny the Application For Presenting The Late Claim. (1) The claimant and board may extend this time by written agreement b/f the period expires f. GC 912.4 The Government also has 45 days to grant or deny a Claim or an Amended Claim. i. The claimant and board may extend this time by written agreement b/f the period expires or after the expiration of the period if an

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action based on the claim has not commenced and is not yet barred by SOL in 945.6 (6 months after written notice or w/in 2 years of the accrual of the cause of action if no written notice given). g. If the government does not answer, i. the claim is deemed denied on the end of the 44th day. ie, the last day of the period within which the board was required to act upon the claim. GC 912.4 h. If the government decides to grant the claim, After 45 days? i. you have 6 months from the time the written notice is deposited 50 days? in the mail by the government to sue. GC 945.6 (a)(1) i. If you never hear from the government, i. you have 2 years from the time of accrual of the cause of action in which to sue. GC 945.6(a)(2) ii. The government entity claims period may give you more or less time than the SOL. (Usually have 1 year SOL from time of the accrual of the cause of action.) j. You must sufficiently allege the cause of action when making a claim against a government entity. i. GC 910 contents of claim a) name and PO of claimant; address to be sent; b) date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted c) general description of the indebtedness, obligation injury damage or loss incurred so far as known at the presentation of the claim d) name of public employee(s) involved e) amount claimed if less than $10k, estimated amt of any prospective injury, damage or loss ... and basis of computation f) amount claimed is more than $10k then no dollar amt included w/ the claim but indicate whether the claim would be a limited civil case (less than $50k) C. Other Lawsuits: 1. Medical Malpractice (SMJ issue) CCP 364 a. Must give the med prof’l 90 days notice of your intent to sue. CCP 364(a) i. no particular form of notice necessary, ii. but must notify D of legal basis of claim, and iii. type of loss sustained iv. including with specificity the nature of the injuries suffered a) If give notice w/in 90 days – you have another 90 days from service to begin suit. 364(d) b. Must also send a simultaneous copy to the medical board of Cal. 364.1 i. These procedures were brought about by the medical malpractice crisis in the 1970’s. c. This notice requirement isn’t jurisdictional. It doesn’t bar the lawsuit. The state bar of Cal. will go after the lawyer. CCP 365

Page 8 of 73 Civ Pro II Outline Roberts/Spring 2002 d. Note: You cannot put claim for punitive damages in complaint or other pleading against healthcare provider unless the court enters an order allowing an amended pleading that includes punitive damages claim to be filed (brought by motion – must show substantial probability of prevailing on the claim). SOL is 2 years after the complaint is filed or not less than 9 months b/f the date the matter is first set for trial, whichever is earlier. (CCP 425.13) 2. If you are suing Architects, Engineers or Land Surveyors. CCP 411.35. a. must file and serve a certificate declaring that the attorney has consulted w/ at least one architect ... (expert) and b. attorney has concluded that the claim has merit b/c of the consultation i. must consult an expert in the field and file a certificate of merit that you consulted the expert. ii. person can’t be a party to the action iii. opinion states whether thinks negligent or not negligent iv. If you don’t file the certificate, your complaint can be thrown out. It is grounds for a general demurrer or a motion to strike. 411.25(g) v. if you file the claim w/o the certificate b/c of SOL – then you have 60 days from the time the complaint is filed to get it 411.35(b)(2) 3. Decedent’s Estate as a D (Probate Code § 9100): a. Do we need to Must file a claim in the probate proceedings. (Probate pays all knowdecedent’s this? creditors and distributes the remainder to the heirs.) Where is it in b. Time Limits: the code? i. Deadline: 4 months after the executor/administrator is appointed ii. 2nd Deadline: 30 days after the ____ happens. iii. If not aware of a probate proceeding. Must get claim in while the probate estate is still open or you cannot get in your claim against the heirs. (ex: ads in the paper showing that the estate is open so that persons can file a claim. If you are too late, then there is no one left to sue.) 4. Other ones (not as important) a. Demands against Promissory Notes: Must have client make demand and allege that exactly in the claim. If not, general b. Rescission of K: must give notice of rescission in the complaint. Must allege in particular in the complaint. c. Defamation against a radio or TV announcer: must demand a retraction first. IV. Filing the Lawsuit: PJ, SMJ, Venue A. Personal Jurisdiction: 1. Test: Sufficient Contacts -- but this is not our focus in this class 2. Long Arm Statutes: each state has statutes for PJ in that state a. cannot be broader than the US Constitution. b. Many are more restrictive than the US Constitution. c. Must check for this if in another state 3. Cal Long Arm Statute CCP 410 .10. PJ in Cal is identical to US Constitutional requirements.

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B. How to challenge Jurisdiction. If D’s counsel believes that Cal courts don’t have jurisdiction over the D and wants to contest jurisdiction. a. Do not make a general appearance in the action. GA = Per Svc CCP 410.50 i. If you do you have WAIVED PJ. ii. PJ is waivable. (know what is a GA and not to do it!) iii. Court has jdx from time of service of summons 410.50 b. Do not answer the complaint. This includes answering and contesting jurisdiction. c. CRC 1014 Appearance Defined; rights to notices. Appearance is defined here. Do not do any of these things. A defendant appears in an action when the D: i. answers ii. demurs iii. files notice of motion to strike iv. files notice of motion to transfer per 396b v. moves for reclassification per 403.040 vi. gives th P written notice of appearance vii. when atty gives notice of appearance for the D viii. After appearance, a D or the D’s attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. ix. Where a D has not appeared, service of notice or papers need not be made upon the D. a) Do not show up at a deposition or a hearing if you want to challenge PJ. b) If a court lacks SMJ you can contest that without making a general appearance (more later on this.) d. No default. No default may be entered against the D b/f time to plead expires and no motion under this section 418.10 or 473 or 473.5 when joined w/ motion under this section, or app to court or stipulation of parties for extension of time to plead shall be deemed a general appearance by the D. C. 2 ways to challenge Personal Jurisdiction: 1. File a Notice of MOTION TO QUASH service of summons for lack of jdx over the D. CRC 418.10. says that the court lacks PJ (or was not served properly) a. Timing: D must pick a hearing date not more than 30 days after the filing of the motion to quash. 418.10(b) Must serve the papers as described in 1005. By writing and w/in 21 days, etc. 418.10(b) don’t b. understand – The Hearing on Motion to Quash. Judge will allow limited discovery. service and filing of the noticeAppear shall extend at hearing. the Argue PJ. Judge decides whether or not there is jurisdiction. Then if there D’sis time PJ, to theplead Duntil must move along with the lawsuit. 15 days after svc upon c. him of a written notice If you want to appeal a judgment by the court. If the judge has of disposedentry of an order of the case then you can appeal. If the case is still going on (if judge says there is PJ denyingand hisyou motion, want to appeal that decision on PJ) you must file a WRIT with the Court of Appeal. except that court may extend the D’s time to i. Difference between writ and appeal: ploead for addl 20 days a) WRIT is discretionary with the court of appeal and is usually for good cause shown. rejected by ct of appeal. b) APPEAL is not discretionary, the court must take an appeal. Not quite sure when I would do this as the D. Page 10 of 73 Civ Pro II Outline Roberts/Spring 2002

2. D Files Nothing and P will get a Default Judgment. Not sure if I got this right. Is it a. P will try to execute the judgment. writ w/ Court of b. Then D tries to get an appeal based on lack of PJ. Appeal? c. If you do this remember that you have forfeited the right to appeal on the merits so you must be absolutely sure that you are correct that there is no PJ. D. Subject Matter Jurisdiction is not an issue. 1. Don’t need to worry about this now. Cal courts used to be divided by Municipal Cts ($25K or less) or Superior Courts. a. 1998 – Trial Ct. Unification Act. Discretionary unification of courts by county. LA has done this now. There is no basic difference bet Municp Ct and Dist Cts. b. Limited Civil Cases (name change for claims of $25K or less). Filed in superior court. Have limited discovery, etc. E. Venue CCP 395 (which county in Cal are we going to file in): 1. Jurisdiction is state-wide but 2. VENUE tells you which COUNTY to file in. a. Within counties there may be certain rules re which BRANCH to file in. i. ex: LA has branches in Pasadena, Van Nuys, Compton, etc. ii. Read the local rules about which county court to file in. Not sure what 3.this Objections to Venue can be waived. I means.a. f the D doesn’t waive the courts may be more likely to waive it b/c of the fast track rules. Want to get rid of cases. 4. Real Property Actions; proper court CCP 392. a. Action involving land/Real Property. Foreclosure of mortgage or trying to get title to get land. b. File lawsuit in the county where the land is located. c. All other actions are “transitory actions.” Not tied to a piece of land. d. If there is more than one county that is proper, the P gets to choose. 5. Considerations for choosing venue: i. Convenience. P wants convenient to them and inconvenient to the D. ii. Bias. Want to go to a county that is more favorable to you as a P. (ex: if wealthy you may want to go to a wealthy county). There is information on this through the internet. 6. Venue ccp 395 a. Generally, the county where the Ds or some of them reside at the commencement of the action is the proper county for the trial b. Personal Injury, property, death – either county where the injury occurs or the county in which the Ds or some of them reside at the commencement of the action c. Divorce – either P or R have been resident for 3 months d. Nullity of marriage/legal sep – where P or R resides at commencement e. Enforce obligation to support—county in which child resides f. BREACH of CONTRACT -- Venue is proper:

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i. Where D resides, San Diego is first automatic venue. D lives there ii. Where K entered into, or a) Depends on K law. Must look at case law. b) Case law says that if suing on the written K, the last act to make the K binding occurs is where it was entered into. If suing on the oral agreement, then the county might be different. iii. Where obligation is to be performed, if the actual K says where it is to be performed a) The county in which the obligation is incurred (entered into) shall be where the K is deemed to be performed. b) Performed = where incurred, unless writing to the contrary (this means unless in writing the K specifically says where it is to be performed) c) If contract is silent as to where it is to be performed, then you cannot use that as a choice. g. If non of Ds reside in state or if residing in state and county in which they reside is not known to P, the action may be tried in any county that the P may designate in complaint AND if D is about to depart from the state, the action may be tried in any county where either of the parties reside or service is made. h. If any person is improperly joined as D ... then his residence is not considered in determining the proper place for the trial of the action. i. D has the burden of filing notice of motion for order transferring the action to the proper court CCP 396b.(a) ii. Court may order the losing party on the transfer of venue motion to pay the prevailing party reasonable expenses and attorney fees taking into consideration whether the motion was reasonably made and whether the selection of venue was made in good faith CCP 396b(b) iii. If P has sent the trial to wrong venue, P must pay the fees for transfer b/f the transfer is made CCP 399 7. Venue -- Problem A. a. 1. Personal injury action. P v. D1, D2, D3. i. Question 1: Counties where Venue is proper: Kern, San Bernadino, Humbolt and Riverside (CCP 395.) for actions for PI or PP injury action, a) county where the injury occurs (Kern is an option). b) county where any of the Ds resides (if more than 1). Venue is always proper where any of the Ds reside. If more than one D, you have choice of where any of the Ds lives, or c) Note: Where P resides is NEVER grounds for venue. b. Question 2. Where is venue property for property damage to car. i. CCP 395 -- Same as above c. Question 3. all Ds are from Arizona. CCP § 395 If none of the Ds reside in the state ... venue is proper in any county of the P’s choosing in the state d. 4. Breach of Contract Action. CCP § 395 i. Venue is proper: a) Where D resides, San Diego is first automatic venue. D lives there

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b) Where K entered into, or (1) Depends on K law. Must look at case law. (2) Case law says that if suing on the written K, the last act to make the K binding occurs is where it was entered into. If suing on the oral agreement, then the county might be different. c) Where obligation is to be performed, if the actual K says where it is to be performed (1) The county in which the obligation is incurred (entered into) shall be where the K is deemed to be performed. (2) Performed = where incurred, unless writing to the contrary (this means unless in writing the K specifically says where it is to be performed) (3) If contract is silent as to where it is to be performed, then you cannot use that as a choice. (a) San Diego (D resides there) and Orange County (K entered into there) are the only places where proper on the bare facts. e. Venue with multiple defendants, can sue where any one of the Ds lives. i. Once venue attaches, it sticks. Later, a D may be dismissed but venue is not moved b/c the D is removed. Only can move venue if the P can prove that this was just a sham D. (see last sentence of 395(a)) ii. Most think that Parties can stipulate to Venue. Venue can be limited or expanded in the terms of the K. 8. Problem 5. Venue and BOK against a Corporation: CCP § 395.5 [if the D is a corp w/ PPB in San Diego County] (The Corporate statute language is clearer) a. Venue is proper for Corporation: i. Where the Corp. has its PPB = San Diego County ii. Where K is made = Orange county iii. Where the K is to be performed a) (language is better -- can use oral evidence of where K is to be performed) b) if you have evidence that the K is to be performed in Riverside, it doesn’t need to be in writing, oral testimony is okay iv. Where the breach occurs (this is only for a corp. -- not for individual) F. Problem A, No. 6: Multiple causes of action 1. Property Damage and Slander – Venue is only proper in Riverside, where the D resides 2. Issue: find a venue where venue is proper on both causes of action. Can’t be brought in county where venue is proper on just one. 3. Venue is proper: a. Venue can always where D resides b. Property Damages § 395  venue proper where D resides and where the damage occurs c. If just suing for slander would have to sue where D lives  Riverside

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d. ANS: If suing for property damage – Riverside and Kern are proper (where D lives and where damage occurs) e. Reason why venue has to be proper in all causes of action  to prevent lawyers from adding a claim just to get another venue. G. Problem 7: Multiple causes of action (slander and property damage) against a corporation (D was on company business for corporation w/ PPB in Ventura County) 1. Answer: Kern (liability arises) and Ventura (PPB) 2. If not suing the individual, just the Corporation use § 395.5 3. Venue is proper a. where PPB is (corp. “lives”) = Ventura co. b. where the liability arises = kern co. i. Corp. venue statute is less restrictive than the personal statute (§ 395); ii. can sue on any tort where the liability arises iii. Corp. statute doesn’t distinguish between what kind of tort it is H. Problem 8: Multiple causes of action and 2 Ds (indiv. and corp) 1. Note: even though we are talking about respondeat superior, both the individual and the corp. are named in the action. 2. Venue is proper either where the individual lives or where the corporation lives. 3. Remember: where there is a choice of 2 or more venues, the P gets to choose the venue. This is one of the advantages of being the P. 4. Ans. = Riverside or Ventura 5. Ans. = Can choose to sue where either D RESIDES a. D resides in Riverside County b. Corp. “resides” in Ventura County i. go with the most restrictive venue 6. RULE: venue is set initially a. if somebody is added or dismissed from a case – venue doesn’t change b. Once venue attaches it is good Is this proper to add7. the Strategy: If suing a corporation and the individual -- if you sue the individualcorporation later? first you can sue in Kern county and then you can add the individual and keep the Will the court disapprove?venue. However, must make sure that the statute of limitations has not run out. i. If court finds out that you are adding or dismissing Ds just to get venue, the court will disapprove of that V. Change of Venue A. Counsel for Defendant: 1. check the venue, especially if venue is not where your client lives. 2. If there is a mistake in venue per 395(a), D can make motion to change venue CCP 397 3. Venue can be waived: If as the D you are happy with an incorrect venue, you simply do not make motion to change venue

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4. Motions = any time you apply to a judge for an order. a. Draft “notice of motion” b. pick time that you want judge to hear the case; c. send the other party the notice; d. write memo of points and authorities (why you are going to win); e. have W’s sign affidavits for your evidence; f. file the evidence; g. D files response; h. argue in court; i. judge then rules on the motion. 5. Motion to change venue: under CCP § 397(a) you file motion to change venue; a. submit points and authorities telling why venue is bad (citing CCP 395 if against individual or CCP 395.5 if corporation); b. give declaration from client as to where they “reside”. c. § 396b.(b) RULE: the expenses of the prevailing party in a motion to change venue are to be born by the losing attorney – NOT the losing party. You have to get this right b/d you can’t bill the fee to the client. i. This is an incentive for attorneys to get the venue right the first time! Atty must pay for the D’s expenses in moving to change the venue. Same thing if you are the D and move to change the venue. ii. Rationale: venue rules are not hard. Read the rules and get it right—Einstein! d. § 399 – if the court changes venue on these grounds it is sent to another court B. Other grounds to change venue § 397 1. 397(a) if not the proper court (transfer per 398) 2. 397(b) where there is reason to believe that an impartial trial cannot be had therein. a. This not seen too often – usually only in criminal trials 3. 397(c) when the convenience of witnesses and the ends of justice would be promoted by the change. a. Done after the answer is filed? Is this true? b. This is seen more in civil cases. c. Note that it is not for the convenience of the P or D. It may be that the place where the P chooses is not convenient for the Ws. d. Either party, P or D can move to change venue to a more convenient county. e. ex: BOK action -- where K is to be performed may be far away from where the Ws are. P may file in the place where proper and then make this motion later. f. Must wait to file this motion 397 after ????? i. Can file concurrently with the answer but you don’t want to do WHAT? this. If you do it b/f you answer you get a mandatory transfer to another county. It is not discretionary

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ii. When you answer – don’t do it – if you do court can start considering convenience of witnesses iii. After answer – discretionary; only ground is convenience of witnesses 4. Changing venue can be on initial venue (395) or convenience of witnesses (397(c)) depending on what ??? C. CCP § 398 -- Where the case goes after change of venue 1. If changing venue because the county court named in the complaint is not the proper court per 397(a)  look to 398 ¶ 2 a. Stipulate: The case goes to any proper court where the parties agree on/ stipulate to (writing or oral in ct); or b. D chooses: If parties do not agree, case goes to any proper ct which the D chooses c. If D can’t choose, the court chooses i. ex: if P chooses wrong venue, D can move under 397(a) for mandatory change of venue and the D gets to choose it under 398. ii. practically speaking, the D chooses where the case goes b/c of cl. 2!! 2. If changing venue b/c of convenience of witnesses, 397(c)  398 ¶ 1 a. where the parties agree to go to; or b. the nearest or most accessible court, where the like objection or cause for making order does not exist. 3. Note: The TIME does not run during the time that the parties are disputing venue; the 30 days runs after the arguing is over VI. Service of Process/Summons CCP 412.10/412.20 A. In general: The P always must serve the D to get jurisdiction over the D/ -- a valid judgment over them. 1. If not served, then haven’t been given adequate notice. 2. Would be violation of due process to take away property. B. Service 1. 1) Defendant 2. 2) Person to whom summons is to be delivered CCP § 415.10 – 415.50 3. 3) Person on whom summons may be served CCP 416.10 – 416.90 C. Definition of Service of Process: The means by which we give notice to a D that they are being sued. 1. Basically, serve the Summons and the Complaint 2. Sometimes have to serve other forms but we are not dealing with that here D. Rules of Service in Cal: 1. Cal requirements are more stringent than federal due process requirements. (PJ is equal to constitution). Cal state court statutes are much stricter than federal court rules. 2. It is not enough that the D has notice about the action, 3. each D must be SERVED.

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4. If service is defective, the court does not have jurisdiction over the D, even if the D got the papers. 5. Exception: if the D makes a general appearance, D has waived his right to be served. a. Ex: if another D appears at hearing, makes motion, etc. [insert rule no.] 6. Agreements as to service will be enforced as long as not unconscionable, etc. E. Summons p. 27-29 graphics 1. Get summons form from court clerk (412.10)n or can get on line (courtinfo.ca.gov) 2. Need a summons for EACH D. 3. When filing a summons with the clerk at the court bring: a. Summons (w/ copies) (Clerk writes case no and signs the summons and gives back for you to serve) b. Original complaint (clerk takes complaint and money stamps case number on it; number may determine judge; want copy of the complaint for your own purposes) c. Conformed copy of the complaint (will be stamped by clerk as to the date of filing for SOL purposes) d. funds: cashier’s check or money order for filing fees (bring extra check b/c you may be wrong) 4. Return to office after filing summons bringing a. conformed copy of complaint b. receipt c. summons 5. Now the time begins to run under fast track rules a. Serve summons and the complaint asap b. Make copies of the summons and the complaint and serve on D 6. Time limits for service: a. 7.7 (a)(1) Complaint -- shall be served w/in 60 days of filing. Proof of service filed w/in 90 days of filing date unless appearance is made w/in the 90 days. i. but if D makes general appearance then don’t have to serve. a) (these rules mirror the CRC.) b) CCP statute is a sanction unless filed w/in 3 years but the fast track rules now have speeded up the process. 7. Who can serve summons? a. Registered Process Server b. Marshall c. Anyone over the age of 18 can serve a summons and complaint i. P – cannot serve summons ii. Lawyer – yes but not good idea b/c if dispute as to proper service it is awkward to be the witness iii. note: costs of service is a recoverable court cost if win the case

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F. 3 Things To Do Things B/F Serving Complaint And Summons 1. figure out who is D  get from complaint 2. Figure out the person on whom the summons may be served (CCP 416.10 – 416.90) a. Service on Individuals CCP 416.90 – serve on individual by serving it to him personally or to a person authorized by him to receive service. b. Service on Corporation 416.10 – must serve on corp by delivery copy of S & C to: (see below also) i. (a) the person designated as agent for service of process; ii. (b) to the president or other corporation head, VP, secy or asst secy, treasurer or asst treasurer, GM, or a person authorized by the corp to receive service of process; iii. (c) if the corp is a bank, to a cashier or asst cashier or to person specified in (a) or (b) or iv. (d) when auth by a provision of the Corp code ... serve as provided by such provision. c. Minor 416.60 – don’t serve the minor! Serve parent, guardian, conservator, or similar fiduciary ... but for good cause shown the court may dispense with delivery to such person. 3. MANNER OF SERVICE OF SUMMONS (CCP 415.10 – 415.50) a. if serving an INDIVIDUAL, the D (416.90) i. in cal, must always try to serve personally (415.10) ii. if can’t serve personally with reasonable diligence -- then can fall back on some other method of service (415.20(b)) b. In lieu of service 415.30: use NOTICE AND ACKNOWLEDGEMENT OF RECEIPT (p. 27) This is not really “service by mail” -- i. P fills out this form and tries to serve D. ii. If D chooses, D can acknowledge whether D has received the summons w/in 20 days. iii. If D does not send this back, the D has to pay for the cost of service. This usually doesn’t deter the D b/c cost is not prohibitive. iv. If the D does not send this back he is NOT served. Have to personally serve him then -- but he pays the cost. This is a way to get out of serving. v. Remember 415.30: Service by mail isn’t really service – if the D doesn’t return the acknowledgement by mail then the person is not served.

4. What constitutes good service: a. Cal says that you must try to serve personally with REASONABLE DILIGENCE first i. if hand to individual, don’t have to tell them what it is ii. don’t have to ask “are you John Doe?” b. Rule: If D is evading service – if D realizes what the papers are and evades service and you are close enough so that he understands he is being served – he is served. i. Good service: D in car and sticks papers in windshield wipers. Good b/c the server came close enough to the D.

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ii. Not good service: D is hiding in house and you are pounding on the door and you shove the papers under the door. Not good b/c not close enough. iii. Rule: must try personal service with reasonable diligence. Not good enough to say that you went there a few times and wasn’t there. Must stake the person out or try to find him at his business, etc. iv. No time is off limits for serving. May serve at any time of day or night, on Sunday, in front of family. 5. Proof of Service Form p. 29 a. after service the D has 30 days from date served to respond.

G. Serving Individual D personally / 1. in Cal, must try to serve personally w/ reasonable diligence (diff than Fed) H. Substituted Service 1. Substituted service on a corporation, public entity, business 415.20(a) a. If unable to serve personally a Corporation, Public Entity, etc -- MAY LEAVE COPY OF SUMMONS AND COMPLAINT DURING USUAL OFICE HOURS IN HIS OFFICE WITH PERSON WHO IS APPARENTLY IN CHARGE AND thereafter mailing a copy to the person to be served at place where a copy of the summons and complaint were left. Service deemed complete on the 10th day after mailing. 2. Sub Svc on an Individual 415.20(b) a. 415.20(b) must find a person at the dwelling house, usual place of abode, usual place of business, or usual mailing address other than US PO box (box like Mailboxes Etc. but not post office box) b. leave w/ competent member of the household over 18 or personally in charge of the office i. cant leave w/ teenage daughter or grandmother ii. cant leave w/ mailroom guy iii. can leave w/ receptionist c. MUST (shall) inform the person you leave it of as to the contents thereof, d. Must mail a copy to the person to be served (the D) at that same place where copy was left i. What to put on the Summons a) check different box under 3 “notice to the person served” b) check box “c” under No. 2. Manner of Service ii. Note: Usually it is easier to serve the summons to the place of business than on the home. 3. If Sub Svc is not working (if you don’t know the address or D isn’t ever home). a. Service By Publication 415.50 i. First, must get court approval that reasonable diligence was used to get the affidavit for service. Must show the facts as to why you were not able to serve the person personally, etc. in the form of the declaration. If claiming can’t find the address, must show where you have searched, such as voter records, etc. Should ask the court if there is a particular form that

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should be used in order to serve by publication. If court is satisfied, then can publish the summon in a legal newspaper (see p. 30). ii. Everyone knows that this doesn’t really give notice to the D, but Where can I the compromise is available so that service may be made in some way. find this iii. If you serve this way you will probably get a default judgment in info? your favor iv. If the D was actually out of the country etc., and a) D can say really didn’t get notice b) Strict time limits on publication (1 year from default judgment)

I. Proof of service: 1. D has 30 days from service to respond – date of service is important a. personal svc is complete = on date the process server gives it to D b. 415.20 substituted svc -- Service deemed complete on the 10th day after the mailing i. proof of mailing form is used ii. whenever S/C is actually mailed – 10 days after that is when the service is deemed complete iii. 40 days after copies were MAILED to the D is when the responsive pleading is due. iv. Must always attach a proof mailing to the copy of the summons and complaint served to the D under 415.20 v. Date on proof of mailing is important, not the postmark on the envelope c. 415.50 Service by publication i. service deemed complete 28 days after the first publication (per GC 6064) ii. (usually published once a week for 4 weeks) iii. response due 58 days after the first publication (28 + 30 days) iv. prove this by filing affidavit J. Serving a Corporation 1. Person on whom summons may be served CCP 416.10 – 415.90 a. The Defendant is the corporation b. CCP 416.10 = Serving a Corporation, service to: i. (a) the person designated as agent for service of process; ii. (b) to the president or other head of the corp, VP, secy or asst secy, treasurer or asst treasurer, GM, or a person authorized by the corp to receive service of process; iii. (c) if the corp is a band, to a cashier or asst cashier or to person specified in (a) or (b) or iv. (d) when auth by ___ sections of the Corp code ... serve as provided by such provision. 2. Difference between serving individual and corp: a. Service on a corp. is much easier –

Page 20 of 73 Civ Pro II Outline Roberts/Spring 2002 b. YOU DON’T HAVE TO TRY PERSONAL SERVICE FIRST ON A CORP.! c. Use form 2b ?? d. 416.10 Corporations – Generally serve on those listed in 416.10 but if not, e. 415.20(a) – leave with person in charge during office hours and mail copies to the place where you left the service and address the copy to the D. Service is complete on the 10th day after you mail the copies. f. Note: If you catch the D at the office you can serve them personally – then you don’t need to send a copy. That is only for Substituted Service. g. Note: Don’t let the word “may” confuse – even though it says that service may be served on corporation or minor in a certain way, that is the way that it is to be served. Much like “shall” K. Proof of Service 1. If a D appears (makes general appearance) in an action, they do not have to be served. 2. If D files an answer, don’t have to file proof of service b/c has already appeared 3. B/f fast track rules, the person almost always appeared b/f proof of service was filed but now proof of service must usually be filed w/in 90 days of when the complaint was filed. a. If you serve quickly -- D has 30 days to respond if served personally/quickly – thus the D will have to appear b/f POS is due b. If you serve late – you will have to file proof of service form b/c will be due b/f the D appears c. If you don’t – you will be ordered to file an order to show cause as to why you did not file POS 4. When the D challenges Service of Process a. To challenge service, the D files a motion to quash CRC 418.10 b. Strategy for challenging service i. only if the D really needs to delay, is challenging service worthwhile ii. usually D is merely delaying the inevitable b/c iii. you can always serve  by publication! iv. The ability to serve is absolute -- even if D resides out of state -- b/c can always serve by publication 5. If D really wasn’t available and default is entered against him, then D can file a § 473.5 – Motion to be relieved from default 6. If you are SURE that service was improper: a. wait till default judgment is entered b. WHAT? D appeals (ex: saying personal service was not attempted) c. if you are wrong, however, you waive your right to have the trial on the merits

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VII. Drafting the complaint; Who to sue – Who to join? A. Choosing the PARTIES: 1. P must be someone who is actually an existing natural person or an artificial person (corp.) [can’t sue on behalf of a tree or a dog] 2. P must be the real party in interest / someone who has an interest – must be the person that is actually injured [ex: I can’t sue on behalf of my neighbor] 3. Capacity is never waived: If D receives complaint from someone who doesn’t have the capacity to sue, you can raise this at any time (demurrer, answer, summary judgment). It is NOT waivable. 4. Minors, incompetents, etc: must appear through guardian ad litem (guardian for purpose of this particular litigation) CCP 373 a. first must get GAL appointed b. usually GAL is the parent c. can’t sue Minor individually – must get a GAL d. judgment against a minor is voidable – can’t collect on it until the individual reaches 18. Once reaches 18 the child can void the judgment if you try to collect. VIII. JOINDER A. COMPULSORY JOINDER – 389 1. Court must decide if there is an “indispensable party” – ie, someone that is missing from the suit w/o whom complete relief cannot be given in their absence a. someone may not be able to be made a party if they are beyond the power of the court – ie., court doesn’t have personal jurisdiction b. court decides whether the person is needed and whether to give jurisdiction 2. 1. Person is declared an “Indispensible Party” – 389(a)(1) a. Test 1: If the court feels that the case cannot be adjudicated / complete relief cannot be given without that person a) (ex: common fund case or dissolving of a partnership – missing party might be necessary to divide the assets of a partnership fairly) b. Test 2: If judgment is given w/o person there -- might give the parties to the action a risk of if double, multiple, or otherwise inconsistent obligations by reason of his claimed interest a) ins co beneficiary/wife example. [need explanation] c. The Code gives a list of FACTORS for deciding whether w/o an indispensable party, the action should proceed or should be dismissed w/o prejudice 389(b) a) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties b) the extent which by protective provisions...the shaping of relief or other measures the prejudice can be lessened or avoided c) whether judgment in persons’ absence will be adequate d) whether the P or CC will have an adequate remedy is actions is dismissed for non-joinder d. If D thinks party should have been joined it should be raised in an objection (by demurrer or answer)

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3. Real Property or Personal Property a. CCP 389.5 Application to be made a party. In an action for recovery of real property or personal property – if a person not a party but having an interest in the subject of the action makes an application to the court to be made a party – the court may order him to be brought in by proper amendment B. Permissive Joinder CCP § 378 – [when you can join Ps if you want or bring in more Ds in the same lawsuit] 1. Except for compulsory joinder, everything else is optional. a. ex: accident and want to sue 2 defendants. Can choose to have 2 separate lawsuits or join. 2. CCP § 378 Plaintiffs; joinder a. 378(a) Ps can join together if i. (1) they have a claim that arises out of the same transaction or occurrence (ex: auto accident) AND ii. there is at least one question of law or fact common to all of them OR a) (ex: what happened? or who is negligent?) b) ex w/ no common question: accident and truck driver punching passenger in nose – no common question b/c driver is suing over personal injuries and the passenger is dealing with battery charges. iii. (2) all Ps claim right or interest adverse to the D in property or controversy iv. The joined Ps Don’t have to be interested in every cause of action or all reliefs prayed for in the complaint 378(b) (1) ex: one P could be suing for personal injury and another P suing for property damage 3. CCP § 379 Defendants; joinder a. All persons may be joined in one action as defendants if there is asserted against them (2) any right to relief jointly, severally, or in the alternative in respect of or arising out of b. the same transaction or occurrence the same transaction , occurrence, or series of transactions or occurrences AND i. there is at least one question of law or fact common to all of them OR c. (2) a claim right or interest adverse to them in property or controversy which is the subject of the action d. caveat: (b) it is not necessary that each D be interested as to every cause of action or all reliefs prayed for. Judgment may be given against one or more of Ds according to their respective liabilities i. NOTE: If P doesn’t know who harmed them and may want to sue all possible Ds (med malpractice – pleading in the alternative) those people can be joined as Ds e. When deciding who to sue - look at: i. Permissive joinder rules– THEN you can... ii. once parties properly joined, they can assert unrelated claims.

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C. PROBLEM B: JOINDER OF PARTIES – Sally is on her friend Penny’s bike and is hit by Bob (19) driving new Mustang and injured her. He was swerving to miss a big pothole and the car went out of control. Bob was making a delivery for his father’s drug store business, a partnership. The car is owned by Bob’s older brother Flash (25). Sally’s parents want to sue and protect all of their rights. 1. First considerations: a. Must decide whether to sue in one cause of action or separately b. How many Ds to sue c. Ps outside of the family that might want to be a party 2. Potential Plaintiffs: a. Sally – personal injury b. Sally’s Mother –personal injury and emotional distress i. proper joinder here b/c under 378 – this is the SAME OCCURRENCE, the auto accident, and the SAME QUESTION OF FACT, who or what caused the auto accident c. Penny – property damage to her bike i. proper joinder b/c SAME OCCURRENCE (at the accident) and same common question (who was negligent) d. Norman – property damage to his car (would be suing his brother, the driver, so may not want to sue) i. proper joinder b/c SAME OCCURRENCE his care was in the same accident and common question a) 378(2) have claim right or interest adverse to the D in property or controversy e. Bob – if injured (may want to sue the highway patrol, city, ford, etc) a) Could be joined if he wanted to f. Flash’s Drug Store – if suffered damage b/c delivery was not made g. Dad – loss of consortium due to wife’s injury i. proper joinder b/c arise out of SAME OCCURRENCE his care was in the same accident and COMMON QUESTION a) NOTE: the claims against Ds don’t have to be the same b) whether we want to have these persons as Ps is another question c) You can’t force these people to be Ps. Would call them and ask if want to join. 3. Potential Defendants a. Bob – the driver of the car that hit Sally – negligence b. Employer can be sued for negligence in ADDITION to Bob – Fred and Oscar under Respondeat Superior if Bob was indeed acting w/in scope of employment i. (all partners can be sued) c. Norman – the owner of the car i. NOTE: In Cal, you are negligent in lending a car to someone else w/o proving that you had reason to know that the person may be negligent person (you don’t need negligent entrustment to sue in Cal!!) d. State of California – (HW patrol) – negligence i. [and HP man personally]

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a) here, first must file the claim form and wait 6 months and see if rejected b) may want to join them later and see if they deny them e. Ford or General Motors – products liability (defect in design or manufacture) i. properly joined b/c brakes failed arises out of SAME OCCURRENCE or series of occurrences and COMMON QUESTON of causation. f. City of Bakersfield – pothole – negligence i. can claim COMPARATIVE NEGLIGENCE in Cal g. Ford or Mechanic – if brakes had been serviced somewhere. 4. Sally and Mom suing all Ds: a. Can Mom sue Ford for her Pinto also in this same action? i. YES – once parties joined for same occurrence and common question, then you don’t need same test of whether can arise out of similar action – the claims can later bootstrap unrelated claims BUT ii. Can’t bootstrap new parties as Ds to sue on those unrelated claims. iii. RULE: You can bring in a new claim against a party already joined but you cannot then bootstrap extra parties to the UNRELATED claim. a) Ex: can’t then sue the dealer of the Pinto D. STRATEGY -- Who SHOULD you join as Ds to the action? 1. Potential Plaintiffs: a. Sally b. Mom c. Penny (bike) d. Dad (loss of consortium) e. Bob f. Norman 2. Plaintiffs that we should join: a. Sally 3. Strategy: a. Joining Plaintiffs in One Suit: Consider that you could put Mom and Sally in same lawsuit -- or the lawsuits could be separate -- There is no compulsory joinder on these claims. i. Reasons to join the parties: a) If join Mom and Sally (and even Dad) together it Saves Attorney Fees: want to save the client attorney fees / money to have them both sue in the same suit. ii. Reasons not to join parties: a) Must be completely sure that there are no conflicts between the clients that are joining together in the same suit. (Ex: Penny and Sally may have a conflict).

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b) Must make the determination as to whether it is advantageous to add all of these people. Don’t want to muddy the issue of Sally’s injuries. (1) The parties have different claims for damages. Sally has PI claim, Mom has NEID, Dad has loss of consortium. It might be more advantageous just to concentrate on Sally’s injuries. (2) Jury might be confused by bringing in the Dad and the Mom. It might hurt Sally’s claim. (3) Penny’s claim can be handled in small claims court – shouldn’t bring in her claim for the bicycle. (4) Bob and Norman – would not be the best idea to have them as Ps. To have them testify as P’s might be good but you would be waiving a claim against them and their insurance coverage at the outset. 4. Potential Defendants: a. Bob b. State Highway Patrol c. City (pothole) d. Ford (products liability) e. Fred and Oscar (respondeat superior) f. Norman (owner of car) 5. Defendant Strategy / Joinder considerations: a. Who do you want to make as the Ds? b. When decide who to sue, should you sue in same or separate lawsuits? There is no compulsory joinder in these complaints. c. Substantive Law Considerations: i. You sue more people to make sure you collect! Not to get more money. Given all Ds have money (solvent) – you don’t get more money from more people. Unless you have punitive damages besides the $ damages. a) Some defendants may be judgment proof. b) Joint and several liability for Economic Losses – P can collect the entire judgment or any percentage from either D. Ds then apportion the loss between themselves between separate lawsuits between the Ds. Equitable indemnity will be sought by the State (1) Ex: Sally injuries worth $100,000. If she sues 1 D she gets $100k. IF she sues 2 or even 10 she still gets $100k. c) Exception for JS liability is Pain and Suffering Damages – (1) You can get Several Liability Only for Pain and Suffering Damages. This means that if the city is only 1% liable then they only pay 1%. Thus it would be worthwhile to join more defendants in these types of suits. (this is to protect the City or State from having to pay such large damages. Once you have part liability from the city w/ comparative negligence, add JSL and the city would be liable for all damages).

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d) Note: Punitive Damages are personal to the particular D. d. Reasons NOT to sue a potential D (either in same or separate lawsuits): i. If you don’t have a strong enough claim and you may have to pay costs ii. You may better use the D as a Witness – Depending on the facts of the case, you may not want to sue someone b/c they might make a very good witness for your case. Having them as a W may outweigh the amount that you could get from them if suing them as a D. Also that person may be more forthcoming as a W if they know they are not going to be sued. a) Ex: didn’t sue hospital technician but joined him as a P against the Hospital. Might be more forthcoming as a W, etc. iii. Ds can pool together and save money and get together and beat your case. If you don’t have a good case against a deep pocket D, that D can hire a good lawyer and paper you to death! e. Advantages to join Ds in the same lawsuit. i. Saves Money ii. Ds all point the finger at each other; cross complain to each other. If all the Ds are there the jury can see what happened, they tend to blame each other. If the Ds are not there the Ds that are present will claim that it is the fault of the D that is absent. a) EX: all will say it is the fault of the pothole! Then the jury might say it is the fault of the pothole and Ford and Highway Patrol are not liable. Then the next jury might find just the opposite b/c of absent Defendants. f. Disadvantages to joining Ds in the same lawsuit. i. Confusing the Jury. If the claims are technical that may confuse the jury and hurt your case. Products liability is a highly technical case. Adding that defective brakes case to the relatively simple case against Bob may confuse the jury and they may find that none of the Ds are liable. ii. Confusing the Lawyer. Products liability claim might not be necessary to obtain recovery for the P. Some lawyers sue everyone and then dismiss the claims later. Just be sure not to sue people that are not liable b/c then the D will be able to get attorney’s fees from you. iii. There may be many attorneys against you on the other side. If the claims are unrelated then the Ds may all have different lawyers. iv. Deep pocket Ds may never give up. Some deep pocket defendants will not settle b/c they don’t want to be a target for other Ps in the future. v. One good Defendant can sway the jury with respect to ALL the Ds. ex: Bob may be so sympathetic a D it may hurt your case to go after him. g. P has the initial control over who the parties are. h. But If Sally sues only the City they can bring in the other Ds as cross – Ds. i. The court maintains the right to SEVER certain claims. The court may decide to do the products liability and the personal injury suits separately. i. 379.5 When parties have been joined (Ps and/or Ds) the court may make such orders as may appear just to prevent any party from being

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embarrassed, delayed, or put to undue expense, and may order separate trials or make such other order as the interests of justice may require. ii. CCP 379.5 – the test is if the court thinks that joining will confuse the issues. j. Beware of the Statute of Limitations. If in doubt about the statute of limitations, sue the D. IX. Pleadings: How to Draft a Complaint  425.10 complaint – complaint must state facts constituting the cause of action in ordinary and concise language, and a demand for judgment for the relief the pleader claims to be entitled. If money damages, the amount must be stated – unless to recover actual or punitive damages for personal injury or wrongful death, the amount shall not be stated.  430.10 (e) demurrer -- A. Complaint in general: 1. you have 60 days to serve the complaint from the time you file; 2. the 30 days to answer starts from the time you serve the complaint. 3. Amending Pleadings. Cal has liberal AMENDMENT rules. 4. Cal is a CODE PLEADING STATE. This is a compromise between old common law rigid pleading rules and the broad notice pleading rules for Federal Pleadings. 5. Complaints are difficult to draft. If you allege things they are difficult to remove and if you leave things out they are difficult to add. a. COMPLAINTS: i. CCP 425.10 (a)(1) A complaint should contain – a statement of the facts constituting cause of action in ordinary and concise language b. DEMURRER – the claim doesn’t state a cause of action even if true. i. General Demurrer is 430.10(e) states the pleading does not state facts sufficient to constitute a cause of action. B. Contents of a complaint (425.10): 1. statement of facts = how you choose to draft the pleading 2. cause of action = the legal theory that you are suing for (intentional tort; negligence, etc) 3. demand for judgment C. GENERAL DEMURRER: If you don’t draft a COMPLAINT stating facts sufficient to constitute a cause of action -- you will get back a GENERAL DEMURRER. 1. it may be that no matter how you plead something, there may be no cause of action to be had (ex: Sally’s mother’s claim for NEID) D. CAUSES OF ACTION – a cause of action is not a legal theory. 1. Definition: Cause of action is -- an invasion of a primary right of the plaintiff regardless of the legal theories involved. a. What is Personal Injury meant b. Property Damage by c. splitting Economic Loss (breach of K; lost profits, etc.) 2. causes Rule: You may not split causes of action. If you split cause of action ofthe 2nd suit is dismissed. action?

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E. Problem C p. 111 – causes of action and legal theories. Sam the client wanted to buy the house. Broker sold house to him for $200k. After the sale the seller moved to Argentina. One month later the house began to sink. Discovered it was built on a swamp and was worthless and that most brokers in the area knew this and that seller is Broker’s brother-in-law. Sam wants the $200k back. Seller is gone so you sue the broker. 1. Question: How many causes of action are there? a. ONE – economic harm. i. Examples of causes of action: a) economic harm b) personal injury c) property damage d) wrongful death 2. What legal theories (counts) can you assert? a. You can sue the broker for i. Fraud – the broker lied ii. Misrepresentation or Negligent Misrepresentation iii. Negligence – broker breached standard of care of ordinary broker iv. Breach of Fiduciary Duty from broker to client v. Breach of Contract -- if it is in the contract or implied contract 3. Since there is only one cause of action you must bring any legal theories comprising one cause of action in the same lawsuit. 4. But you may bring separate lawsuits on separate causes of action. a. ex: If you have both personal injury and property damage – these are 2 different invasions of primary rights and you can bring 2 separate lawsuits for these. 5. Technically, a cause of action is primary action being invaded. a. Legal theories such as fraud and misrepresentation are “counts”. b. However counts are called Causes of Action! F. How to plead a “cause of action” (ex: negligence) 1. Ascertain the elements of the cause of action a. duty b. breach of duty c. causation (prox and CIF) d. damages 2. Research the substantive law to be sure you have the elements for the cause of action 3. Give a statement of facts constituting the cause of action in ordinary and concise language CCP 425.10(c) 4. Plead the ULTIMATE FACTS – you must plead the ultimate facts. a. Do not plead i. evidentiary facts (facts that are too specific), or ii. conclusions of law (things that are mere conclusions and don’t give enough facts).

Page 29 of 73 Civ Pro II Outline Roberts/Spring 2002 b. Example of ultimate facts for pleading for an auto accident where the D was driving drunk. i. evidentiary fact = D drove his car after consuming a fifth of vodka (TMI) ii. conclusion of law = D drove in violation of Cal Vehicle Code __. iii. ULTIMATE FACT = D drove while under the influence of alcohol G. Differences between Good pleading and Bad pleading don’t necessarily make sense. 1. You must figure out how to plead the ultimate facts by going to reliable source (a treatise; form book). a. Ordinary and concise language = pleading the ultimate facts. 2. Examples of conclusions of law a. D did an illegal, unlawful, unauthorized, fraudulent thing 3. Examples of good pleading a. D was negligent. b. D was an invitee on the land c. D was doing an act w/in the scope of his employment (but can’t allege that the D did a wrongful act) 4. You only want to plead sufficiently enough to avoid a general demurrer 5. You can usually amend a bad pleading but better to get it right the first time. H. Prof. Roberts’ 2-step approach to drafting the complaint. 1. Research Substantive Law -- Figure out if you have a good claim (legal theories and remedies) 2. Figure out how to plead it – if you have trouble stating your cause of action, then you may have a weak case. I. How to plead in the Complaint – 1. CRC § 201 – gives details of the form of the pleading/complaint as to what lines certain things go on; paper; etc. (Local Rules also should be looked at but we don’t deal with that now.) 2. Complaints Incorporate by Reference. 3. Complaint knows to plead conversion on p. 35 b/c of Witkin Cal Procedure TREATISE p. 46 of the syllabus. a. see also, Bankroft Whitney on Cal Pleading; form books b. Most judges rely on Witkin. If you plead according to Witkin and other side demurrers, just tell the judge you used Witkin. J. Doe defendants 1. Doe Defendants are a way to add in a defendant later and then amend later. However, you may be challenged later upon amendment on other side. 2. Cal is the only state where you can sue individuals under fictitous name “Doe(s)” and then you must fill in the names later. 3. These allegations are important when the SOL has run. Even after SOL has run, you can rename

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4. Note: P must genuinely be ignorant of the name of the D to name them as a Doe in the complaint. a. P’s Ignorance must be of i. the IDENTITY of the person or ii. their INVOLVEMENT (ex: didn’t know nurse was involved) 5. In Cal, not naming “DOES” is MALPRACTICE! K. Naming “Does” in the complaint: 1. “add DOES one through 100” 2. USE THE PLURAL for Defendants. Make everything plural or say “and defendants 1 – 100. The allegations in the complaint must charge all the DOES “CAUSE OF ACTION AGAINST ALL DEFENDANTS FOR FRAUD” OR “FIRST CAUSE OF ACTIONAGAINST ALL DEFENDANTS FOR FRAUD” (can amend later) 3. Can Put in allegations of where the Ds live L. THE EXAMPLE COMPLAINT 1. Put in BOILERPLATE DOE paragraph (example below) a. Plaintiff is ignorant of the true names and capacities of defendants sued herein and DOES 1 through 100 and therefore sues these defendants by such fictitious names. Plaintiff will amend this complaint to allege their true names and capacities when ascertained. Plaintiff is informed and believes and on that basis alleges that each of the fictitiously named defendants is responsible in some manner for the occurrences alleged in the complaint and that plaintiff’s injuries as alleged were proximately caused by the acts or omissions of each of them 2. Pleading Generally a. only plead sufficiently to set forth the cause of action. b. Find an authority, WITKIN, case, formbook, and go by the form in there. 3. Ex: ELEMENTS of FRAUD – Must Plead w/ particularity a. representation b. falsity c. knowledge of falsity d. intent to deceive e. reliance and damages i. Witkin 675 – plead the misrepresentation VERBATIM. a) Say exactly what the D said to P. Don’t say that “D lied” or told a falsehood” b) Witkin 680 – plead falsity – Allege falsity by saying what the truth was. c) CAUSATION IS THE PROBLEM HERE. There were 3 months that she was living there. d) Pecuinary loss is a problem here 4. In California –INCONSISTENT PLEADING is okay a. ex: can plead both intentional misrepresentation and negligent misrepresentation b. You might plead inconsistent facts b/c don’t know what you will be able to prove at trial.

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5. In California – P CANNOT pray for INCONSISTENT REMEDIES a. P cannot seek to rescind the contract and perform the contract in the pleading 6. Can allege “ON INFORMATION AND BELIEF” a. use this language when you want to allege facts that the client may not want to swear to. b. Ex: “P is informed and believe and on that basis alleges that ...” M. Alleging DAMAGES: 1. “wherefore” has been used forever 2. can AMEND if you leave one out a. Can plead exemplary damages for fraud, oppression or malice only by CC evidence. Employers not liable for such acts of employees unless had advance knowledge of the character of the employee to do such a thing. If corporate employer, then must be advance knowledge of a officer, director, or managing agent. b. exemplary damages also for death by homicide for which D has been convicted of felony c. cannot plead exemplary damages for BOK CC § 3294 d. court may for good cause grant a defendant a protective order requiring P to produce prima facie case of liability for damages per 3294 (§ 3295) N. VERIFICATION: P. 38 1. if complaint is not verified then the D can fill out GENERAL DENIAL, a one- sentence denial in order to deny the complaint. 2. Thus, verification is not absolutely necessary but you should get it from the client. O. FORM COMPLAINTS: 1. Shell + Causes of Action 2. Sometimes more difficult than filing a regular complaint!! a. can be confusing – not sure whether to use cause of action for contract or personal injury b. ex: of Fraud Cause of Action p. 71 – attachments can be a lot of trouble; easier to use paragraph numbers in the complaint

X. Responding to complaints – Demurrers; Motion to Strike; Answer A. Other ways to respond: 1. NEGOTIATE (but the fast track rules have made this more difficult b/c used to be able to get an unlimited extension – but now you must respond w/in 30 days w/ only ONE extension) i. 7.7(a) (3) Pleadings and Motions. All Responses to complaint or cross complaint shall be filed and served within 30 days of service. Parties may stipulate without leave of court to one extension of up to 15 days for the response. (you only have this one extension – thus the most you have is 45 days to give some sort of response.) 2. Move to quash for lack of personal jurisdiction or improper service

Page 32 of 73 Civ Pro II Outline Roberts/Spring 2002 a. Motion to quash must be done b/f anything else b/c a general appearance waives the right to do motion to quash b. CCP § 418.10 says that D on or before the last day of her time to plead may file notice of motion to quash service of summons on the ground of lack of jurisdiction of the court over her (other motions = dismiss on ground of inconvenient forum). i. Notice has to designate a date not more than 30 days after filing the notice as time for making the motion. ii. Notice shall be served in the same manner and the same times as per 1005(b) a) 1005(b) says that all moving and supporting papers shall be served and filed at least 21 calendar days b/f the hearing. These served papers are copies of the papers filed w/ the court. If by mail add 5 calendar days if w/in Cal. If oos but in US add 10 cal days. If ooc 20 days. If fax or overnight mail, add 2 cal days. b) All papers opposing a motion must be filed and served on each party at least 10 cal days and all reply papers at least 5 days b/f a hearing. Reply papers all filed quickly (personal delivery, fax or express mail...) iii. By filing this motion, the D has extended the time to plead until 15 days after service on her of a written notice of entry of an order denying her motion, except for good cause shown the court may extend the D’s time to plead for an additional period not exceeding 20 days. a) if the motion is denied, D has 10 (or perhaps 20) days from service of written notice of the order to and before pleading to petition a reviewing court for a writ of mandate to require the trial court to enter its order quashing service or staying or dismissing the action. b) If the writ of mandate is denied the D has 10 days after service of written notice of the final judgment in the mandate proceeding (or not more than 20 days) iv. No default may be entered against the D b/f the expiration of her time to plead, and v. the motion to quash service of summons or motion to stay or Is this dismiss on ground of inconvenient forum or amendments or motions to set right? aside defaults are not deemed to be a general appearance by the D. 3. Move to change venue a. Motion to stay of dismiss the action on ground of inconvenient forum? B. Demurrers CCP 430.10 (may object by demurrer or answer) 1. Demurer is like a motion 2. It says that the complaint is not good for the following reasons: __. 3. You appear b/f the judge and she rules on the demurrer. 4. The Judge grants or overrules the demurrer. 5. When you file an answer it doesn’t get a hearing b/f the judge; it only preserves the objection. 6. Grounds for demurrer. a. General Demurrer = 430.10(e) pleading is not sufficient to state a cause of action. This is the most popular demurrer. b. Special Demurrer = no lgl capacity to sue; defect in joinder; etc.

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i. Note: can only demurrer to causes of action, cannot demurrer to damages 7. Key requirement for Demurrer = a. the defect of the complaint, CC or answer must appear on the face of What does it mean when thethe court complaint ; it must be ascertainable just by reading the complaint only. Other evidence is not takes judicialallowed. notice?b. The Only Exception: matters that the court can take judicial notice of ie. records in other cases c. Ex: person filed did not have legal capacity to sue (430.10(b)) i. If the P is only 13 years old, you can only demurrer if her age appears on the face of the complaint. If it doesn’t you have to put it in your answer and then perhaps move for summary judgment. d. Other problems that do not usually appear on the face of the complaint are: i. lack of capacity; ii. defect of joinder 8. General Demurrer = defect must also appear on the face of the complaint. a. ex: if pleading Fraud and an element of the cause of action is missing then you can demurrer. i. But if your client is sued under an “agency” allegation and you want to deny the agency allegation you cannot demurrer b/c that defect doesn’t appear on the face. ii. If P is lying in the complaint that doesn’t give grounds for demurrer either b/c cannot be ascertained on the face. 9. General Demurrer = 430.10(e) pleading is not sufficient to state a cause of action. (on face) a. Insufficient Pleading. P Pleads fraud and doesn’t allege intent to deceive b. New Cause of action. P is attempting a new cause of action that hasn’t been upheld b/f. i. Ex: O’Hara case. Demurrer was sustained at tr ct level. The law may be changed at the appellate level. (ex: Marvin, loss of consortium cases). c. Face of the complaint reveals a defense such as SOL. usually comes up on SOL defense. i. If P has alleged dates in the complaint and the complaint was filed o/s the SOL you can tell by face that the complaint is barred by SOL. ii. However, if the P does not allege dates (b/c doesn’t have to) then the D may not generally demurrer b/c defect is not on the face. 10. WAIVER: a. 430.10 (e) The General Demurrer (NOT SUFFICIENT TO STATE CAUSE OF ACTION )and 430.10(a) SMJ are NEVER WAIVED!! b. the other grounds are waived if not raised on demurrer. C. FILING A DEMURRER -- CRC 325 Pleading Motions 1. Must be stated separately. list causes of action and list demurrers

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2. Must file Memoranda of points and authorities w/ demurrer. a. Bring in legal authority as to why the complaint is defective. b. Ex: if element of the complaint has not been alleged. 3. Must set for hearing not more than 35 days following the filing of the demurrer of the first date available to the court thereafter. CRC 325(b) a. local rules say 25 days but CRC prevails b/c higher. b. Can be earlier or later date for good cause shown. D. The Other Objections of 430.10: 1. Lack of Capacity to Sue [430.10 (d)] a. Here the P is minor or corporation w/o standing (hasn’t paid dues); b. P under guardianship or conservator; c. something the court could take judicial notice of (if P is under guardianship can ask court to take notice of the guardianship file) i. If not on the face of the complaint must raise the defect in your answer. ii. Even if defect is one the face you may raise it in the answer and not demurrer so that the objection is preserved and is not waived. iii. REMEMBER: you either DEMURRER or raise objection in the answer as an AFFIRMATIVE DEFENSE. 2. Another action is pending between the same parties on the same cause of action 430.10 (c) a. should demurrer b/c can also have the court take judicial notice of this also 3. 430.10 (d) Defect in misjoinder of parties a. rarely on face of complaint b. raise it in the answer usually 4. 430.10 (f) pleading is uncertain. a. This one is disfavored. b. The courts hate these and if you demurrer the court will ask you to just answer usually c. Can use this one if the complaint is totally unintelligible (pro se P) 5. 430.10 (g) Cannot tell whether contract is oral or written or implied a. Disfavored also. b. Ct will say answer and ask in interrogatory c. Ct may allow this if this raises SOL problem. ex: if sue 3 years later there is SOL problem on oral K. 6. Remember: The grounds for Demurrer that are not on face of complaint and are not General Demurrer are waived if you don’t raise them in your answer. E. Time for Demurrer: Must file the demurrer w/in the time given to plead (30 days) and must set the hearing w/in 35 days CRC § 325 1. File the actual Demurrer w/in 30 days of service of the pleading. 2. Then pick hearing date w/in 35 days of the date that you actually file the demurrer.

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3. Always call the clerk at the outset to find out the particular practice at that court F. Strategy/Consequences of Demurrer (It usually only delays the process) 1. Ct usually grants the demurrer w/ 30 days leave to amend. 2. Rarely will the court dismiss the case on a demurrer. a. P files amended complaint (re-do the whole complaint). b. The first Amended Complaint can be served by mail. c. The Judge will most likely let the P amend a few times b/f throwing the case out. 3. STRATEGY i. it is good to demurrer if it helps you understand the complaint (unintelligible) ii. however, the demurrer may just educate the P’s attorney in what to plead and how to plead it. iii. Therefore, you may not want to say anything. If a cause of action is just pleaded incorrectly (such as fraud) you may just want to not demurrer. Later may take deposition. iv. Ex: fraud case – P may talk about what an idiot the D was and how he didn’t know what he was doing. Thus, there was no intentional misrepresentation! 4. If Ps lawyer is served w/ a Demurrer – don’t get angry! a. Calm down. b. Just file an amended complaint if you have made a pleading error – i. If you have made an error in pleading, you should just file an amended pleading/complaint. Don’t respond to the demurrer in that case. Don’t waste your money opposing a demurrer that is good. Send a thank you to the D for doing all your legal research for you! 5. What did Deciding whether to demurrer a. we mean If there are problems that the P can’t fix, file a Demurrer. If P can’tby this? properly plead a cause of action then file demurrer to get those causes of action thrown out. b. If it is something that the P can easily fix, don’t demurrer.

what do G. Motion for Judgment on the Pleadings CCP 438 we need 1. gets it on the calendar to know re MJOP? H. Motion to Strike (CCP 436, 437) 1. File and serve motion to strike whole or any part of the complaint w/in 30 days of service of the complaint/pleading that specifies a hearing date per 1005. 2. Notice of motion to strike a demurrer shall set the hearing on the same day as the hearing on the demurrer 3. If filing a motion to strike w/o demurring to the complaint, the time to answer is extended and no default may be entered against that D... 4. The filing notice of motion to strike an answer or complaint does not extend the time w/in which to demurrer § 435

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5. In general a. motion to strike can be done in conjunction w/ demurrer b. do at same time as demurrer (w/in 30 days) c. judges want them at the same time for convenience d. must be filed w/in the time to answer e. Motion to Strike = general appearance (don’t do this if you want to waive jurisdiction) 6. When to use a motion to strike a. [First, the problem must appear on face of the complaint] b. 436 (a) if there are irrelevant faults or improper matter – Must be something that matters or the judge will throw you out of court (ex: insult to your client would not use strike unless high profile client) c. 436(b) To strike unsupportable damages claims such as punitive damages for a contract claim. i. Proper response to use Motion to Strike for showing improper damages allegations. ex: can’t get punitives for BOK etc. a) Not able to demurrer to this b/c the facts are sufficient to state a cause of action. b) File motion to strike instead. ii. Damages are important to the D! iii. Defect must appear on the face of the complaint. May not strike and bring in declarations to show falsity. Ex: can’t move to strike to prove that D is not the owner of the car. Would use motion for Summary Judgment. iv. May want to use motion to strike to if P improperly asks for damages for attorneys fees. (BOK) [when can you ask for atty fees?] d. Use MTS to strike any irrelevant, false, or improper matter inserted in any pleading CCP § 436(a) e. Use MTS to strike an entire pleading that hasn’t been filed in accordance with the law or court order. (not in accordance to time or court order made) CCP § 436(b) i. Ex1: if there is an amended pleading filed in 35 days instead of 30. ii. Ex2: D files unverified answer to verified complaint  can use motion to strike iii. NOTE: only use MTS if there is something offensive or a complaint makes an issue of something that is not really an issue. I. ANSWERS -- CCP 431.30 1. Answer is the usual response given to a complaint. Even after amendments, D will have to answer. Answers are easy, comparable to complaints and demurrers. Must always answer correctly though. a. Definition of Answer: D concedes that the complaint is okay or objects. b. Answer = general appearance. c. After answer -- D can no longer demurrer or motion to strike. d. Must answer w/in 30 days after the complaint is served.

Page 37 of 73 Civ Pro II Outline Roberts/Spring 2002 e. If don’t answer you lose the case by default and default judgment. f. No answer = malpractice. i. Only time you wouldn’t answer is if you know that the court has no jurisdiction -- but the prof wouldn’t ever recommend this! a) Answer + Complaint delineate the issues for trial. Shows what the D is contesting at trial. b) Affirmative Defenses are listed in the answer. ex: negligence and D raises comparative negligence in the answer as aff defense. c) Raise objections in the answer that you cannot demurrer to (or strike) d) 431.30 – The answer is not place to raise Affirmative Relief. Must put that in cross-complaint. 2. How to file an Answer a. General Denial. Only if P has filed unverified complaint, D can file a GENERAL DENIAL. p. 74 i. You may not want to use general denial. Instead, you may want Is this right? to admit to some things so that they will not be an issue at trial. a) ex: if the D was on cell phone and ran over a kid. May want to admit to the negligence and contest the damages only so that the jury will not hear the evidence on D’s conduct. b) If you admit something it becomes an uncontested issue and jury does not hear evidence on that. b. 431.30(f) = how to respond. if verified, complaint must respond per 431.30 (f). i. Deny by reference to specific ¶s of the complaint. ii. Denial of certain allegations on information and belief, etc. c. Remember: Saying nothing about an allegation is the same as admitting the allegation d. Usually the lawyer goes through complaint ¶ by ¶ and respond to each ¶ of the complaint. i. You may say D admits ¶¶ 3, 6, 8 and 12 ...etc but usually lawyer wants to respond to each allegation separately as a sort of “checklist” e. Denials: 431.30 (f) i. refer to specific ¶¶, ii. expressly admit and deny; iii. on info and belief; iv. specifically deny certain things v. Sample Answer Allegations p. 76 a) Regular Denial – D denies each and every allegation of ¶ 5 of the complaint. This puts everything in the ¶ in dispute. J. Answer Exercise p. 113 1. You represent Harry Disco. Events in the complaint occurred on January 10, 1999 and the complaint was filed on February 17, 2002. a. Must verify the pleading

Page 38 of 73 Civ Pro II Outline Roberts/Spring 2002 b. D may deny on info and belief OR lack of info and belief. Use this when the d has been told facts by hearsay, etc. but thinks that he has some basis to deny. c. 6. D denies on info and belief every allegation of ¶ 6. d. Lack of info and belief is used if you want to bring this into issue at trial.

XI. Answer to Ps complaint for BOK A. In general: It is possible to amend an answer but best not to make mistake B. Denial of allegations: 1. Denial by alleging contrary facts -- permissible but can get you into trouble b/c of Negative Pregnant a. ex: P alleges D was drunk. i. Can say D denies he was drunk, or D was sober – but it is BETTER to say D denies D denies each an every allegation of ¶ 5 of the complaint b. Beware the Negative Pregnant – allegation in the complaint says “D did this and that” and you try to deny it factually. Some say the denial is pregnant w/ an admission. i. Ex: Claim that “D defamed P orally and in writing.” If say D denies he defamed P orally & in writing, that is pregnant w/ the admission that P did either or. Must add “...or at all.” Thus, it is best to just do the general denial. ii. Damage allegation. Also, damages is a problem w/ Neg Preg. If say D denies he owes P $1000. This is pregnant w/ the admission that D owes P some other amount. iii. Thus -- lawyers may deny damages w/ answer #1(regular denial) + #5 (damages); or may just use #1. 2. Raising affirmative defense or appeasing by abatement a. Difference between affirmative defense and allegation denial i. If P alleges BOK -- deny BOK ii. go to substantive law and see those things which the D has the burden of proof (ex duress). These things must be raised as an affirmative defense. iii. If you fail to allege these things as affirmative defenses you can only raise them by amending the answer w/ permission of the court a) Find the affirmative defenses in Witkin and jury instructions XII. D answers the allegations of the complaint as follows: A. First Cause of Action 1. D admits the allegations of ¶ 1 of the complaint. of deny b/c of lack of info or belief. 2. admit or deny 3. admit or deny 4. admit or deny 5. always deny the DOE allegations! ex 1. D denies each an every allegation of ¶ 5 of the complaint.

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6. always deny AGENCY allegations. D denies each an every allegation of ¶ 6 of the complaint. 7. simply deny this one on information and belief. #3 D lacks sufficient information and belief (or lack of information or belief) ... and ... denies each an every allegation of ¶ 7 of the complaint. (don’t deny by controverting the allegations of the complaint. (ex: the value of the coat is not $12,000) This is allowed but it is a problem b/c of negative pregnant. 8. #6. Admit Some, Deny some. Split this up. don’t admit this but cannot deny all of it. Answering the allegations of ¶ 8, D admits that there is a sign above the coat check counter which reads, “Check all personal items here – one dollar.” Except as specifically admitted here, D denies each and every allegation of ¶ 8. 9. deny per general denial 10. deny per general denial 11. deny per general denial 12. deny per general denial 13. deny per general denial 14. deny per general denial 15. deny per general denial 16. deny per general denial OR use #5 damages denial (... and further denies D was damaged in the amount of $12,000 or at all. B. Affirmative defenses to first cause of action. can raise affirmative defense or pleading in abatement here or at the end of the complaint. 1. raise SOL as affirmative defense a. #7 -- sol defense raised in an answer. (p. 113) b. CCP 335 begins list of SOL. c. this case uses SOL for K not founded on written instrument 2. fact that D is under 18 is a plea in abatement a. to assert plea in abatement, you write “P lacks capacity to sue.” C. Second Cause of action ... 1. use ex #4 ... D incorporates by reference .... 2. deny 3. deny 4. deny 5. deny 6. Affirmative defense and 7. CCP 338(c) raise SOL defense (2nd cause of action is barred by CCP 338(c)). 8. also raise lack of capacity to sue here D. Third Cause of Action .... same 1. deny 2. deny 3. deny a. May raise comparative negligence as affirmative defense here

Page 40 of 73 Civ Pro II Outline Roberts/Spring 2002 b. As a first affirmative D to the c. allege SOL defense d. allege P lacks capacity to sue e. [remember must list each affirmative defense w/ each cause action. Even if alleging fraud to each cause of action, should list it every single time]

WHEREFORE, D prays that P takes nothing by his/her complaint ... and that D be awarded __ and costs of suit. Sign the answer Must verify if the complaint was verified. If don’t file verified answer if complaint was answered then it is like not answering. E. Form Answers p. 77 1. (not as bad as form Complaints) 2. Check that you are denying everything that you want to deny

F. HYPO TIME: Choices: demurrer answer motion to strike M JOP Summary Judgment Motion to Quash Motion to Transfer (P or D, after answer, test sufficiency of the facts by trying to convince the court that there is no triable issue of material fact. Ex: P sues D driver and employer of the driver but there is no evid that the driver was acting w/in scope of his employment while driving. Emp would answer and then make MSJ saying that there are no facts showing that the guy was acting w/in scope of his employment)

1. D counsel. You get a complaint and think ct doesn’t have PJ over our client: a. Ans: file motion to quash. Anything else is a general appearance and you waive PJ (don’t demurrer – it is like a general appearance and you waive PJ) 2. D counsel. You get a complaint and you want to say that service is improper. a. Ans: file motion to quash. 3. D counsel. Complaint for fraud and P has left out an essential element of the cause of action: a. Ans: i. answer. you can answer and later do motion for summary judgment (you will win only if they can’t fill in the gap) If you do ii. you can also answer and “lie in the weeds” – in discovery they nothing? might admit something contrary How does iii. demurrer. you may do general demurrer but that is just doing that work? their work for them

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iv. do nothing. this is as good as answering v. you can raise it in the answer vi. later, M JOP 4. P counsel. P files verified complaint and D files unverified answer. a. Ans: move to strike the answer i. you should do this b/c it is good to have a verified answer, you don’t want a general denial 5. D counsel. Realize the P is incompetent and is under guardianship a. Ans: Answer and raise the affirmative defense of “lack of capacity” i. if you don’t raise this affirmative defense you waive the right b. Ans: do a special demurrer and ask court to take judicial notice. i. must be defective on the face of the complaint, or ii. in certain situations you can have the court take judicial notice. You can ask the court to take judicial notice of the guardian files. 6. D counsel. Complaint doesn’t mention dates that certain things occurs. You think there is SOL defense lurking. What are your choices? a. Ans: answer and allege SOL as affirmative defense in your answer. i. After discovery, if there is SOL problem you follow w/ MSJ b. some courts will allow you to amend for uncertainty – after amendment if SOL problem is on the face of the complaint then you demurrer. i. Must raise the SOL problem in the answer or you waive the objection 7. D counsel. Court gives 30 days to amend the complaint. P amends in 40 days. What does the D do to get rid of the complaint? a. Ans: motion to strike b/c document filed in violation of a court order 8. D counsel. Complaint fails to allege proper venue a. Ans: You do nothing. COMPLAINT DOESN’T NEED TO ALLEGE VENUE. If venue is right, great. If the complaint is filed in the wrong venue then do motion to transfer 9. BOK. P seeks punitive damages in amt to be determined later. Punitive damages BOK a. Ans: File Motion to Strike b. Improper to file for punitive damages on BOK claim c. can’t demurrer to damages, only to causes of action. 10. P files garbage complaint. All statements are false. a. Ans: Must Answer, deny them, and then follow w/ Motion for Summary Judgment i. don’t demurrer -- b/c demurrer takes everything in the complaint as “true” ii. can even get sanctions much like Rule 11 FRCP for a completely garbage, frivolous complaint XIII. Cross Complaints A. Substantive law v. Procedural Rules of cross-complaints 1. (we deal mostly w/ procedural rules)

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B. Procedural Rules of Cross-Complaints 1. Compulsory Cross Complaint. a. CCP § 426.30 – if party against whom a complaint ahs been filed and served fails to allege in a CC any RELATED CAUSE OF ACTION at the time of serving his answer to the complaint against the P, he may not later assert the related cause of action in any other action against the P. i. Definition of Related Cause of Action (426.10(c)) means a COA which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the P alleges in his complaint. ii. Policy – Compulsory CCs save court time on the cause of action. iii. NOTE TIME LIMITS: once the D has CC’d in response to the P’s complaint, the P has a compulsory CC to the CC. 2. Permissive CCs – if you want to can file in separate suit a. 428.10(a) D can sue P for ANYTHING unrelated to the action; doesn’t have to be related. (can also raise independent action) b. 428.10(b) – D can bring 3rd party into same lawsuit through cross complaint. May file CC for “any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, i. TEST -- if the COA asserted in CC a) (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or b) (2) asserts a claim, right or interest in the property or controversy which is the subject of the cause brought against him. C. CC Time Limits 428.50 1. 428.50 (a) D can file CC against a P at any time b/f the answer is due. If missed must get permission of court to file the CC 2. 428.50(b) D can file against another party any time before trial D. Problem F – Cross Complaints (p. 114) 1. P and D don’t get along, fist fights in past, both backing out of driveways and collide into each other. Both suffer car damage and personal injury. 2. Assume P sues D for property damages and personal injuries in one lawsuit. a. (Remember, he doesn’t have to sue all in one but it would be dumb for him to do so – don’t want to pay twice to do this. )

3. Question (c) -- Can D C-C against P for damages suffered in a fight they had 2 months earlier? a. Ans: Yes. Permissive CC. 428.10(a) D can sue P for ANYTHING unrelated to the action; doesn’t have to be related. (can also raise independent action) b. Not compulsory cross-complaint b/c can sue for that in separate action b/c SOL has not run

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4. Question (b) -- May D sue for the auto accident in an independent action? a. ANS: no. Compulsory Cross Complaint. CCP § 426.30 – if party fails to allege in CC any RELATED CAUSE OF ACTION against P, he may not sue in another action. i. Definition of Related Cause of Action (426.10(c)) means a COA which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the P alleges in his complaint. ii. Policy – Compulsory CCs save court time on the cause of action.

5. HYPO: P sues for personal injury but not property damage. Could have brought both actions at the outset. D does compulsory CC back. P then says that he wants to bring separate property damage lawsuit. Can he? a. Ans: NO. You must do it in this same lawsuit now. You have lost the ability to file personal injury in separate lawsuit b/c once the D has CC’d, the P has a compulsory CC to the CC.

6. HYPO: BOK claim w/ possible SOL. P waits till day before SOL runs to file the complaint. By the time D is served the SOL has run, but the D has a claim against the P. Is D out of luck now? a. No. By case law, it has been held that (subject matter related) Compulsory CCs are deemed to RELATE BACK to the date the Complaint is filed. b. Need this rule to make things fair. c. If parties have claims against e/o and there is danger of cross- complaint, discuss the situation w/ the client and advise them of the possibility of the cross- complaint.

7. HYPO: D has cc’d on the auto accident. But D says that the brakes on D’s car didn’t work. a. Can the D bring Ford into the suit? i. Yes. Under American Motorcycle. b. HOW do we get Ford involved in this? i. There is no such thing as compulsory CC against a third party. You never have to bring it in the same suit; Can assert affirmative relief against Ford in separate lawsuit. c. If you desire, can you sue them in the same action? a) 428.10(b) – When you may bring 3rd party D in to same lawsuit. (1) TEST is -- if the COA (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right or interest in the property or controversy which is the subject of the cause brought against him.

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ii. Ford, if brought into the action becomes a 3rd Party D and the D becomes the 3rd party P. 8. Question (f). Can he also sue Ford in the same action b/c his car gets poor mileage (breach of warranty claim)? a. Ans: YES. 428.30 once we get some in the lawsuit by CC, you can unite that with any other cause of action you have, whether related or not – except eminent domain complaint. b. Also, Ford could bring in someone else in response to that cause of action re the brakes. Ford can then CC against the dealer. c. If this gets too confusing, the court has the power to sever per CCP 1048(b)

XIV. Amended Pleadings A. How to amend 1. Ex parte motion – send the papers into the clerk, other side doesn’t need to be there or need notice, and judge signs it. 2. Notice motion – ask the court to give you leave to amend B. Amending a Pleading 1. P and D have absolute to amend the complaint or answer ONCE as a matter of right w/o asking for permission – can just send in the amendment (CCP 471.5) a. Time. either (i) before the D answers, or (ii) if the other side demurrers instead of answering, you can amend b/f the hearing on the demurrer. (Call defense counsel and clerk a few days in advance and let them know that you will be amending and don’t need to have a hearing.) b. If D makes mistake in the Answer. Can amend answer once during the time that P could have demurrered to the answer (P has 10 days to demurrer to the answer w/o asking for permission). c. If time has passed then you have to get leave of court. Sometimes you have to appear and sometimes ex parte. d. AMEND ex parte -- If you want to substitute a real name for a Doe D. Form is used. Merely substitute the named D for the Doe D w/o giving notice by amending as a matter of course. The court stamps the paper. Serve the D and tell him he is being served as Doe 1. e. AMEND ex parte– if correcting spelling in name, etc. routinely granted ex parte. No need to appear at a hearing. f. FULL NOTICE MOTION. When making more substantive change – adding causes of action or changing relief sought. i. Court’s policy is to allow amendments b/c want claims to be pursued. ii. (CCP § 473) – An amendment is in the judge’s discretion. Can grant amendment on such terms as justice requires. Thus, courts almost allow you to amend but may impose CONDITIONS on allowing one to amend. a) Ex: P sued for BOK and wants to add intentional tort. D must think about how will be prejudiced by the amendment and ask the court to set CONDITIONS. How will the D be harmed by this amendment? Prejudice = trial is in a month and D will need more

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time, needs more witnesses, may even be able to get the other side to pay for the additional costs to the party not amending. Court can impose anything as may be just. Must allow amendments -- even on the fast track! g. Statutes of Limitations. If SOL has run there can be problems. i. Ex: personal injury action for negligence. 1 year SOL on personal injury. 6 months later they want to amend but they waited till almost SOL has run to file. Does the amendment relate back to the date the complaint was filed? ii. Amending/SOL TEST: you MAY AMEND after the SOL a) if the amended complaint is based on the same general set of facts as the original complaint. (1) ex: widow sued city for wrongful death b/c H shot by PO. Original suit on intentional tort. Wanted to amend to sue city for negligence in hiring the PO. Ok b/c arose under the same general set of facts, the same shooting. b) if recovery is for the same injuries. (1) ex 1: PO example is ex of same injury. (2) ex 2: parents sue dr for ED for not detecting down syndrome w/o SOL. After SOL M wanted to add cause of action for bodily injury for during prenatal care. Court did not allow b/c this is bodily injury and not ED. c) if caused by the same instrumentality (1) ex: injury in bathroom. Sued manu of lamp for electricity. SOL ran. Want to sue hairdryer company. Court said NO – must be same instrumentality. iii. DOE Ds and SOL. By statute – DOE Ds can be added after the SOL has ran. Ex parte. By farm. After the person is served that is when they may object to be substituted as Doe. a) P has to be genuinely ignorant of the Doe D. If P knew of the Doe or his involvement then the amendment would be overturned b/c SOL has run. b) Can add Ds anytime b/f SOL runs c) Only need to use DOES after SOL has run. d) Must be GENUINELY IGNORANT of the identity of someone or of their involvement in the claim to add D as a DOE. (1) EX: Sue Dr. X for birthing the baby. You then find that Dr. Y was there w/ Dr. X when he was birthing your baby. (2) If you know about a D then you have to name them to begin with and then perhaps dismiss them later. 2. Filing an Amended Pleading. Must retype/resubmit the whole pleading so that the Amended Pleading substitutes for the original pleading. (Courts do not like it when parties hand in an amendment to the pleading.)

XV. Defaults and Default Judgments A. In general 1. What to do when adverse party doesn’t answer 2. usually gets set aside

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3. is as good as other judgment b/c you can collect on it B. 3 Levels of Default 1. Being in Default – D is in default when has not filed response and time w/in which to respond to the complaint has passed. If D shows up the next day w/ answer the clerk has to take it. a. Note: If answer has been filed too late you can move to strike – court usually will not strike but may enforce some sanctions. 2. Entry of Default – get D entered by the clerk. Clerk makes formal entry in registered. Then the D may no longer appear in the action. (Thus if answer is filed after entry of default then the answer will be bounced). 3. Default Judgment – is a judgment like a trial judgment and can be executed by the P. a. To get default judgment ask 2 questions (CCP 585) i. what kind of lawsuit is this? ii. how was service accomplished (this only matter if you serve by publication b/c could not serve them any other way) b. Explanation of CCP 585 – Judgment on Default i. 585(a) -- If suing on CONTRACT for recovery of $ or damages (not specific performance) and served not by publication (personal or substituted service), a) get clerk to enter the default -- and b) get clerk to enter the default judgment. (1) No judge needed. 585(a) says that the clerk must enter default and immediately enter the default judgment (2) RULE: Clerk can enter the default judgment if it is a suit on a contract and doesn’t require discretion on the part of the court. (3) RULE and POLICY: Clerk can only enter the default judgment when it doesn’t involve discretion is only a min (4) Ex: if asking for lost profits on contract this involves discretion, thus no appropriate for default judgment by the clerk. But routine stuff like promissory note or accounts receivable cases may be entered default judgment by the clerk. (5) ex: asks for attorney fees also – debate whether this takes it out of the realm of judgments that can be entered by the clerk. BUT if you are willing to take attorney fees as set out in a court schedule of fees (p. 119 per 3.2) then the clerk can give the default judgment. ii. 585(b) -- If suing in any other action and served not by publication, a) clerk enters the default BUT b) JUDGE/Court must enter the default judgment. (1) Must go through prove up hearing – show that you meet your prima facie case and show the judge that you are entitled to that. (2) p 133. LA SC Rules DEFAULT JUDGMENT

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(a) even though it says that you must have the court enter the judgment – the court does not want to see you, instead... (b) you submit the judicial form and maybe the declarations of the plaintiff. have client fill out declaration as to amount of damages and fill out under penalty of perjury. [?? declarations also) iii. 585(c) – If served by publication, you bypass getting entry of default. Just go straight to the JUDGE for a default judgment. a) check the box 5d on the form b) judge will see form, affidavits and declarations. Wants to make sure that the P has at least a prima facie case.

4. Default Judgments a. Give Warning. When an opposing party is in Default, before you ask for the default/judgment you must call or write to defendant’s counsel and let them know that they are in default and that you are going to enter default. Unless, of course, you served by publication, etc. and do not know D then you cannot call, etc. i. Must give enough time for D to answer. (few days to week) but then if they don’t answer get the default in . a) Strong public policy to get trial on the merits. Court does not want to enter default and then have to go through hearing. b) Courts will almost always set aside secret defaults (when people do not give notice to other side. c) Should always give written notice of warning of default to the other side. ii. Mandatory Court Form for Default p. 86 a) must be filed. b) clerk answers the default c) Default judgment is limited to the amount prayed for in the complaint. d) If have not specified damages (personal injury/medical malpractice) must send STATEMENT OF DAMAGES to the D after filing the complaint p. 88. If you seek a Default judgment then you have to file this complaint b. Once Default judgment is entered: i. SEND NOTICE to D – as soon as you get default judgment and also as soon as you get the default entered (usually done on the same day). ii. 473.5 used only if D did not get notice – usually if service by publication or substituted service a) Must be served and filed w/in reasonable time but not exceeding earlier of (1) 2 years after default/judgment or (2) 180 days (6 months) after service on D of written notice of default/judgment 2 year period or (a) b/c says “reasonable time” reasonable time might be less than 6 months iii. 473.5 Relief from Default Judgments AND MORE!!! a) 473.5(b) = CATCH ALL – Save attorney from their mistakes. It relieves any party from any judgment

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b) 473.5 (b) Court may upon any terms as may be just relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. c) 473.5 MOTION can be used to relieve attorney from (1) not filing deposition in time (2) not filing reply papers to motion in time (3) if car breaks down and need more time (4) 473 does not relieve SOL d) 473 Motion must be made w/ in the shorter of (i) reasonable time or (ii) w/in 6 months from entry of default this iv. 2 choices if default judgment against you: a) Claim that Default was result of mistake, inadvertence, surprise, or excusable neglect – if so, relieved and nothing financially bad happens (1) Excusable: have stuff ready but have stroke and in hospital. This is excusable neglect. Too busy b/c one of the partners left and workload was doubled. “the blame it on your secretary defense” -- Attorney relied on system or person in your office that breaks down or clerk made a mistake. If you do not get excusable from judge, then court has discretion whether or not to let you file affidavit of fault. (2) Not excusable: Too busy, too many cases, didn’t have time. b) File Affidavit Of Fault and pay sanctions – this is like admitting fault. Court must give you relief from your mistake but make you pay SANCTIONS: (1) other parties costs but limited by $1000, or (2) pay $1000 to State Bar Client Security (3) Other relief as court deems just (conditions, etc)

XVI. Law and Motion A. Definition of Law and Motion. Term for court proceedings where courts hear MOTIONS. B. Motions are used when a party/attorney wants to ask the court to ORDER something. 1. notice is given to other side 2. court date is given 3. other side can dispute. C. Standard motions 1. quash 2. change venue 3. strike 4. amend pleadings 5. relief of default 6. summary judgments

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7. Demurrers (are pleadings that are like motions) D. Motions you make up – if having any sort of problem or request you can make up a motion to deal w/ it. 1. Ex: Motion that D not contact Harry Smith. 2. Discovery motions are filed to compel answers to interrogs, to add someone as expert witness, etc. 3. Motions take time and cost money. Do not file frivolous motions. Motions do not always help. Other options include calling opposing counsel and ask them to stipulate. 4. See 128.7 – General Sanctions Provisions. Court can impose sanctions for improper actions. Do not use motions to harass, etc. E. Motion = 3 documents filed simultaneously 1. Notice of Motion – one page or 1 ½ that tells the other side, what the motion is, date, and place3 2. Memorandum of Points and Authorities – persuasive document much like brief saying what you want and why you should get it. 3. Declarations Under Penalty of Perjury – Sworn declarations of the D needed b/c motions are made w/o witnesses F. CCP 1005 – Written Notice for motions: 1. 21 calendar days b/f hearing must have all moving and supporting papers at the court and have them personally taken to the opposing lawyers office. 2. Served papers = copies of the papers filed at the court 3. If the serving papers are mailed, then extra time is given a. (5 calendar days if w/in California) b. 10 calendar days o/s Cal but in US c. 20 calendar days o/s US d. 2 calendar days for fax or overnight 4. If you do not file in time, you will have to file again a. ex: If using personal service and filed today – earliest time you can have motion heard is: i. If today is the 7th. 8th = day 1. ii. Count 21 days. Weekends and court holidays count. iii. March 29th would be the last day that the motion can be heard unless it’s a court holiday. iv. Note: Call and find out when the Judge hears the matters. a) Pick a date 21 days from the date that you are going to file, and b) Give yourself enough time to file! G. LAW AND MOTION 1. Reply Papers: Due 10 calendar days before the hearing on the motion. Is a Memorandum of Points and Auth. in response to the motion. Can object, 1 ground is that movant has not complied with procedure. Not followed ct. or statutory rule. If do that should not go in and argue on the merits. If don’t object in writing have waived. Can also object on evidentiary grounds. Or argue on the merits, movant not entitled to have motion granted.

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2. Sanctions: CCP 128.7 – Blanket sanction provision. Available to either party when other party makes frivolous motion. Need to ask for in moving papers or responding papers. 3. Motion papers can be served by fax if parties stipulated. Some cts. even allow filing by fax. a. Most cts. make you use a 3rd party fax service designated by the ct. b. LA ct. has own fax number that can use. Cannot do fax with complaint and answer. Some pilot programs where can file by e-mail. 4. Law and Motion Calendar: Judge tentatively rules and then have law and motion day. a. Usually judge hears all law and motion calendar on same day. b. Attys. argue for short time, couple of minutes. Judge not usually change tentative rulings. c. Mostly on papers so P&A needs to be really good. Sometimes not make a tentative and will make a ruling from the bench or judge will take it under submission. The judge then signs the order and need to send to the other side. After motion winning party will draft an order.

XVII. DISCOVERY A. In general: 1. Most cases do not go to trial, settle but never settle before discovery. 2. Discover is proportionate to the length of the trial and the complexity of the matter. 3. Usually 2-4x the amount of effort that goes into the trial. 4. Can begin right after complaint filed and until approx. 15 days b/f trial. Most cases settle b/c can evaluate them after discovery. 5. Civil litigators not usually go to trial, do discovery. If want to be a trial lawyer should go into Criminal. B. History: Important to see where cts. coming from. 1. B/f discovery rules (in CA got in late 1950’s, fed in 40’s) trials were based on surprise. Would have secret witnesses. Would not know what witnesses would say. Could not look at other side’s documents. Good trial lawyer could think on feet b/c would not know what witness would say and would need to come up with good cross immediately. Not necessarily lead to justice. Many lawyers not think on feet. Cases not settle b/f trial. Method was criticized and better way developed that is discovery. Full and thorough discovery of everything that will happen in the trial. 2. Now the mark of a good lawyer is thorough preparation. Now if go to trial and are surprised have not done a good job at discovery (absent somebody changing story or lying). Good b/c justice better served. Trials shorter b/c not have to do lots of fishing around while witness on the stand. If looking for ways to impeach somebody would do in discovery and not have to ask lot of irrelevant questions at trial. But started getting into system of discovery abuse. (70s and 80s) Wealthier client try to bury poorer client with massive discovery requests. Really became a problem when got word processors and not have to retype every interrog. Not give much thought as to whether need interrog. or not or not answer properly. Now have limits on discovery, limit on # of interrogs. can send. Have sanction sections where use the word

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shall. Have meet and confer rules. B/f can make a motion, must try to resolve the issue informally, call the other side, if not do will get motion denied and sanctions. C. Discovery serves great purposes: 1. each side has access to information 2. promotes settlement 3. get to truth of the matter 4. helps decide how to conduct the trial b/f get there 5. narrows issues, goes beyond the pleadings 6. preserve evidence that might otherwise disappear. if have a party outside the jdx. or might be ill at time of trial, if take depo. in advance will have that testimony 7. some people say should be a purpose some say not – equalizing the proceeding b/c have to give access to your witnesses that have found – might be bad b/c gives one side unfair access to other sides diligent.

D. Cost of Discovery: 1. Can be very expensive especially if other side using in an abusive manner. Most cts. probably not give sanctions sufficient to prevent discovery abuse. Hard to keep cost down. 2. Most attys. not want to leave any stone unturned. Not sure how important a witness is if don’t depose them. Hard if the client wants to keep the cost down. Might have to tell them not possible to keep cost down.

E. Discovery Is a statutory method that allows one party to obtain information from adverse parties and witnesses. 1. Within the statutory framework can obtain info. in certain ways, cannot go outside the statutory framework. Within the rules can get a lot of information. Basic devices in CA (same as fed.) F. Depositions. Q&A between attys. and witnesses, typed up and in a booklet. Can get present knowledge of parties and tie them down to their version of the facts. Only device can use against non-parties. G. Written Interrogatories: Questions from one side to another. Get different sorts of info. than depos. 1. Look at documents. Ask other side to produce something. 2. Look at, inspect or test physical evidence. Ask other side to produce something. 3. Can take physical or mental exam of other party only if relevant. Usually just in personal injury. 4. Request for admissions. Used to narrow issues. Ask is they admit or deny certain things. 5. Expert witnesses. Have special rules. 6. Outside rules cannot get info. any other way unless other side stipulates

7. Discovery is supposed to be self-executing. Should not have to ask the ct. for anything. Party seeking reads the statute and sends request in conformance with the statute

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and hope that the other side complies in good faith. Statutes very long and detailed. Not always happen like this. Other side can object or comply but propounding party will not think is sufficient, left out something, were vague, etc. Then have to go to ct. Judges hate them, sometimes send out to judge pro tem. H. Time Limits: 1. start immediately, defense gets a head start. as soon as they are served can start sending notices for interrogs. and depos. usually only happens in personal injury, business usually wait. 2. π has to wait 20 days after serve complaint. not usually start this early. 3. CCP 2024 (a) as a matter of right can do discovery up until the 30th day before trial supposed to start. Complete discovery then. a. Deemed complete when the depo begins so can go beyond the 30 days. b. Re: interrogs. is deemed completed the date the responses are due. Can have discovery motions heard on or before the 15th day b/f trial. Have to plan backwards. Should not have due on the 30th day b/c party might not comply and will need to make a motion. Need to notice a motion 21 days before or 26 if want to mail the motion. So need interrogs. due at a minimum 26 days before trial so have time to notice motion. Also need time to read the responses and prepare the motion. When send interrogs. the other side has 30 days to respond. i. Timing: a) 30 days to respond b) will mail – 3 days c) need to read and prepare motion if necessary – 7 days d) notice, serve by mail – 26 days e) latest can have motion heard is 15 days before the trial f) about 81 days before the trial – about 3 mos. b/f trial that have to send out interrogs. g) if not do with enough time, have to go to the ct. to ask for time to shorten notice to the other side or for the ct. to hear the motion after 15 days b/f the trial. need a good reason, like were dying or have newly discovered evidence that need to ask about. I. Scope of Discovery: What can discover and what can’t. 1. Rules apply to all discovery devices. CCP 2017 at beginning of Discovery section. Has nothing to do with what is admissible at trial. Totally different standard that what is admissible. Some lawyers not know this or pretend not know. 2. At a depo cannot object on grounds of hearsay, etc. Long line of CA cases that discovery is to be encouraged and when in doubt allow the discovery. Can get anything: a. not privileged b. relevant to the subject matter of the action. not relevancy to the issues. needs to be relevant to the subject matter, very broad, if is a K action is about the entire K and business dealings, not what is in issue in the pleadings. c. relevant to any motion made such as personal jdx. d. ask for information that is itself admissible or would reasonably lead to the discovery of admissible evidence. hearsay not admissible in evi. but clearly discoverable.

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could lead to the discovery of admissible evidence. rumors not admissible in evidence but can ask about in discovery. 3. other improper objection (besides hearsay, etc. which is improper) a. some lawyers might make, “irrelevant, on a fishing expedition” is a bad objection. leading CA sup. ct. case Greyhound says is OK, are supposed to go on fishing expeditions. should ask about issues not thought about yet and not sure about. after find stuff out can amend pleadings based on newly discovered evidence. b. Also have to think about whether the request is oppressive or burdensome. Ct. can limit the scope if is. J. Have some examples at end of 2017 of what can get. K. E.g. Ima Winner says is owner of albino mink coat. 1. Can ask to state all facts upon which base the ownership of the coat. 2. Then at trial if Ima puts on a witness that says she is the owner and did not provide that witness in discovery can object and Ima will not be able to get that evidence admitted. 3. Can ask for contentions about legal conclusion, do you contend that the statute of limitation was violated. 4. Cannot ask for legal reasoning, 5. cannot ask for case names upon which base the legal conclusion. 6. People with personal knowledge: can get names, information about them, bias, etc. a. Can’t ask for names of witnesses other side will call at trial through discovery. b. Can get at pre-trial conference where judge tells each side to exchange witness lists. c. Can get description of physical evidence. d. Can get existence and amount of insurance money, not admissible at trial. L. Privileges: 1. Evidentiary privileges coincide exactly with the discovery privileges. If is privileged under rules of evi. then privileged for discovery. E.g. atty/client, spousal, etc. Same rationale, encourage communication between atty/client, etc. 5th A privilege, privacy matters. 2. Atty/client: comes up in discovery a lot. a. Can be waived for discovery in the same way as in evidence. e.g., disclosure when 3rd party there not necessary. relevant information might be protected here. what really is a communication between an atty. and client. stuff in client’s possession first and then turned over to the atty for purposes of litigation not privileged. b. can’t turn something into a privileged document by giving it to your atty. lot of fights about this. c. underlying things – facts - not privileged. ask client for a memo giving all facts re: some issue. memo itself is privileged but underlying facts not privileged. can still ask about the facts in depos. writing something down for the atty. will not turn the info. into privileged info. d. other common ground for atty/client privilege is when have a corporate atty. involved in the business decisions of the corporation. if atty. at a meeting is the

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content of the meeting privileged. depends on if the atty. there to give legal advice or just as a management person or to use his legal knowledge to evaluate the financial situation of a decision. have to be careful not to waive b/c once is waived have waived for all purposes. if accidentially give other side privileged document have waived and is admissible at trial. e. also in depo. make sure client not blurt out contents of a conversation. f. If a doubt ct. will err on the side of saying is not privileged. Not want to expand the privilege. XVIII. Attorney Work Product (applicable to discovery only) CCP 2018

1. Definition: written preparation of an attorney that is related to the particular lawsuit. It is relevant to the subject matter. Issue: is it discoverable? (ex: atty interviews witness and takes notes on what is said. It is relevant. Can the other side ask for it? Other examples are memos done per atty legal research; client keeps business records in certain way and attorney may go through the documents and summarizes them in a certain way in preparation for trial). 2. A “Writing” – contains anything that is a “writing” under the evidence code including computer records, audio and video tapes also. B. HYPO: atty has clerk prepare chart from business records to get them in meaningful order in preparation for a lawsuit. Issue: is the information privileged under atty work product rule? a. Public policy behind protecting atty work product (AWP) is that we want the attorney to feel free during discovery and not to be afraid to prepare and take notes for trial. The purpose of discovery is full disclosure – both good and bad facts – in order to facilitate settlement. No attorney would write down things that are harmful to their side if they thought they would have to give it to the other side. Also, atty time is valuable. Don’t want to do all the work and have to give all of it to the other side. However, there are some situations where the attorney must give the work product to other side. Code came up w/ a compromise: 2. CCP § 2018(c) says that any writing that reflects any atty’s impressions, conclusions, opinions, or legal research or theories is NOT discoverable under any circumstances. Ie. you can’t just ask for the attorney’s memo. a. ex: if attorney or clerk interviewed a witness and makes notes to self reflecting their conclusions, impressions, opinions, etc. This witness report or portion of it would not have to be given up b/c of subsection (c) 3. CCP § 2018 (b) the other side cannot get work product unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice. a. Attorney work product other than opinions, etc. is CONDITIONALLY PRIVILEGED. Start w/ presumtion that can’t get it. But if go into court and show that the other side would be unfairly prejudiced etc. then the court may make you give it up. 4. classic example: atty interviewed the key witness and then the witness dies. The court may let the other side have the document b/c of unfair prejudice or hardship. However, the court will allow the attorney redact any of the attorney’s impressions, conclusions, etc. from the document. 5. ex 2: if prepared summary of business records, the other side would only have access to the records. But if the warehouse burned down, then the court may let the other side have access to the summary.

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6. Something doesn’t become AWP b/c it is used by atty. The underlying facts are discoverable. for example, the witness you found is not work product. The records that were found from which you did your summary are still discoverable. 7. How to find the other side’s legal mechanisms and strategy: [???] C. Privacy – Under Cal Constitution. 1. Info may be protected under inalienable right to privacy under Cal Const. 2. Balancing Test -- Interest of Disclosure v. Right of privacy. a. Things that are W/in Zones of Privacy (interp by courts) i. medical or psychological history ii. personnel records iii. prior sexual relations iv. memberships and associations v. personal finances vi. trade secrets 3. Note: Zones of Privacy are not absolute but any invasion must be relevant to issues in the case. a. Ex: atty cannot ask re personal finances unless relevant such as in embezzlement or punitive damages claims. Also, sexual relationships are protected unless relevant such as in loss of consortium cases where court allowed investigation into his extra marital affairs to find out how much he was “suffering” 4. Discoverable: anything relevant to action or likely to lead is not private, is protected under atty work privilege or under right to privacy D. Protective Orders: 1. Limit discovery. You may want to get a PO if you think an objection will not be enough protection. 2. 2017(c) Gives the Limitation of Discovery Test a. Does the burden and expense outweigh the likelihood that the discovery will lead to the discovery of admissible evidence? 3. 2019(b) says the court may reject extent of certain discovery methods if it determines: a. (1) that the discovery is repetitious, overly burdensome and could be gotten in some other way. ex: you want business records but instead you ask for the witness to read you the business records in a deposition b. (2) method of disc is unduly burdensome or expensive in relation to amount and issues involved in the case. ex: if case is worth $100k – we don’t want to conduct hundreds of thousands of dollars on discovery 4. Note: § 2025 on depositions has protective order sections as does interrogatory sections of the code. a. In general, to get protective order, you go to court and demonstrate that there are grounds for the PO -- burden must outweighs the need for information -- information sought is unreasonable. 5. Can almost always get a PO for: 6. trade secret cases  get PO.

Page 56 of 73 Civ Pro II Outline Roberts/Spring 2002 a. May mean that you don’t have to disclose or may cover/limit what the other side can do when they get the information. (ex: other side asks for coca cola’s recipe! also, client lists may be protected by PO b. depositions of high ranking officers of corporations unless other side can show that the person has unique information. This is to protect the company from harassment. c. duplicative document requests 7. NOTE: You must move quickly when discovery is sought. Get protective order under 2017 or 2019! XIX. Depositions (most interesting discovery device):

A. Definition of Deposition -- the attorney questions a witness orally. B. Persons present at deposition: 1. Any party has the right to be present during the deposition. 2. If atty does not want a certain party there – ask for PO. 3. Attys may be present 4. other witnesses may be present. 5. Court reporter is present at deposition to transcribe. Audio/Video taping is now allowed but typing is still done. C. Why do attorneys take depositions? 1. Attorneys take depositions to pin down a version of the facts / testimony of a witness for use at trial. This way you have a recorded transcript. a. If the witness changes the story on trial the attorney can read into the record the deposition to impeach the witness. 2. It also aids w/ trial preparation so that you will know what the witness will say at trial. 3. Deposition also serves the function of getting a witness to talk to you who would most likely refuse. 4. Helps the attorney to see the strengths and weaknesses of certain witnesses – what kind of impression would the other side’s witnesses make at trial. This helps you evaluate your case for settlement. 5. Different than interrogatories: a. interrogatories are well-crafted, whereas in deposition, the witness or party can answer b. FOLLOW UP QUESTIONS are allowed in depositions 6. Impeachment 7. to get down the story of a very favorable testimony of a witness who may get sick at trial or may leave 8. ALSO: You can get testimony of non-party witnesses in depositions – this is the only way to get testimony of non-party witness.

D. Disadvantages of Depositions: 1. expensive

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2. you are paying for everyone else’s deposition!!! (sometimes lawyer’s split the costs) 3. no control over length of the depositions -- objections, etc, may turn into several days 4. A witness has no obligation to prepare for depositions -- depositions only test the knowledge of the person sitting in the room. Many technical questions may remain unanswered. a. (ex: ask corporate officer questions re $ schedules or about particular employees and the officer may say “I don’t know.” However, they would have to answer these things in interrogatories though.) b. On the other hand, having a witness say “I don’t remember” can be good. ex: traffic accident and witness says he doesn’t know what color the light was and later at trial says it was red – you can impeach him w/ the deposition at trial!!!)

E. Procedure for Depositions: 1. Preparation of witness for deposition (watched video): 2. When favorable witness is going to be deposed you must meet with the deponent and prepare them for trial. The person doesn’t not know what to expect. Must warn them of certain things. a. deponent will be under oath b. answers must be well thought out -- if change answer in deposition or at trial that may be used to impeach them. F. Prepare the witness by telling them the following: 1. you will be under oath 2. must tell the truth 3. don’t lose your temper or get into a fight with the lawyer taking the deposition 4. don’t be sarcastic (will not come out in the record) 5. do not guess at an answer (ex: witness to accident must insist on not guessing or giving an estimate during a deposition) 6. if you don’t understand the question, ask to have it rephrased 7. Mock Deposition -- attorney should ask the witness questions that may be asked by other side. Do a “mock deposition” and see what the witness is going to say. This can be very helpful. Find out if witness recollection is clear. Must be sure not to commit perjury but can help the witness/client in phrasing answers. Help the client get used to answering questions that may be embarrassing, etc. Client must look self assured – look like good trial witness during deposition. 8. Don’t volunteer information!! This is an area where deponents get themselves into trouble. Try to make them stick to YES or NO answers. Do not help the other side information. The witness must not volunteer information – just answer the questions. 9. Listen very carefully if you, the lawyer, speaks/objects during the deposition. a. ex: if you object b/c question is ambiguous the witness should take notice. b. ex: if you tell the witness not to answer – the client must not answer! c. ex: if you say to the witness “You look tired. Do you need a break?” They should answer YES!

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10. Don’t guess 11. Don’t rephrase questions 12. Don’t be nice to the attorney – even if the attorney is being nice and friendly. The lawyer is not your buddy. Just answer the questions! 13. Tell them what to wear – be presentable and wear business attire. 14. If they have questions or concerns during the deposition, they can ask questions – ask to speak to you outside the room, etc.

G. At the deposition: (video of tough attorney questioning your witness) 1. Lawyer taking the deposition a. advises the deponent of what a deposition is like b. they are under oath c. must tell the truth d. protect your record!! a) asks if there is any reason why you should not be taking deposition today -- are you healthy, on medication, on drugs or alcohol today. This protects the attorney’s record b) ask if you need me to rephrase a question c) ask if you need a break e. Never stipulate to anything if you don’t know what it is. f. The code is very specific now. g. There is usually no need to stipulate. H. 2 depositions styles: 1. nice, chatty approach 2. hostile approach (on video) – a. try to get the witness to “spar” with you. If you get the witness to hate you then they will deny everything and look ridiculous by denying everything. This is why the preparing attorney must warn the witness of this before the deposition takes place. b. In the video, the client’s attorney made many meaningless objections and the other attorney kept asking questions. The attorney had the right to ask these questions. The questions were w/in the scope of discovery and would have led to sanctions for the objecting attorney. c. Questioning attorney made the mistake of saying that they should adjourn the deposition. Get the other side to adjourn the deposition and keep asking your questions. If they do it wrong then you can get sanctions.

I. Distance Limitations for Depositions 2025(e) 1. If parties stipulate to a location, you can take a deposition anywhere. 2. Generally, will have to pay for someone to travel a long distance.

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J. Rule: You can take a deposition of a party anywhere within 75 miles of their residence. K. California Rule: 1. can make them travel to a location w/in 150 miles of their residence w/in a particular county 2. Outside a county, you can only make them travel 75 miles 3. Can ask court for order to compel a party to travel farther for a deposition “in the interests of justice” – But you cannot do this with a non-party witness unless they stipulate to it. L. Notice of Deposition – document that is prepared by the atty; must send to every party in the action telling them when the deposition is going to occur. M. For Deposition of a Party – only need to make a notice of deposition for them to appear. 1. must give 10 days notice 2025(f) 2. CCP 1005(b) extend time depending on how you are mailing notices N. Picking Deposition Dates: 1. you can pick any day you want; don’t need court order 2. check w/ the witness; make alternate dates; don’t just send something in the mail ordering them to appear 3. of the witness is not cooperating – pick a day! They will have to then seek protective order and explain to the judge that there is no day that they are available. O. Ordering a witness to bring documents to a Deposition 2025 1. Parties: a. can make them bring documents w/in their control if in conjunction w/ the depo b. still must do document production request to look at all documents c. state in separate paragraph in the notice of deposition what documents you need the witness to bring 2. Non-Parties: a. send notice to all parties b. Subpoena the witness c. Deposition Subpoena (p. 91) is served by process server on the non- party witness; equivalent of a court order compelling a W to come d. must be used on all non-party witness e. if no subpoena – must pay costs of the other side for showing up to a deposition if the witness does not show up! f. warn even friendly non-party witnesses of the need for subpoena g. must pay a nominal travel fee?? 3. must serve subpoena on witness w/in a REASONABLE TIME 4. must give notice to other side w/in 10 days (or 15 by mail)

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P. If want NON-Party to bring DOCUMENTS to the deposition: 1. must use deposition b/c can’t ask for production of docs b/c person is not a party 2. p. 95 Is court form ordering witness to bring documents to the deposition 3. (ex: divorce case; need bank records of opposing spouse; if want to ask questions use the form on p. 95; but 4. if you ONLY NEED DOCUMENTS from a non-party a. engage in “Legal fiction” b. use form p. 93 c. Deposition sub for production of business records d. person just sends documents and doesn’t have to show up e. choice (b) is most common – [look] 5. Cannot send subpoena to someone to just send copies of documents to you! 6. Must also send notice of deposition to all other attorneys in the action

Q. Purposes of Depositions. 1. Finding out more information: a. use open-ended questions if you want to find out more information b. can ask anything relevant to the subject matter i. rumors ii. hearsay iii. have you heard anything else 2. Pin the witness down to a particular version of what happened. a. ask specific questions b. have you told me everything you know up to this point? 3. Find out if the witness will be good witness at trial a. will they be hostile? b. what subjects upset them? 4. Use of depositions as evidence at trial a. deposition is Hearsay at trial (OOCS) if using to show the truth of what was said b. deposition of party = party admission c. anything a party says is a party admission d. depo can also come in as evidence at trial for the truth of what a party says (not just used to impeach) e. Questions should be admissible as if on the stand; must lay a foundation of the situation f. beware hearsay g. ask yourself: would this question be objectionable if the witness were on the witness stand? h. must be question in admissible form for trial 5. Bottom Line: use depos for discovery and for preparation for trial (witness and info)

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R. Objections in Depositions: 1. All objections are reserved (don’t have to make at time of dep) except objections as to the form of the question eg. objections that if made could be remedied at the time of the objection. 2. If you don’t obj at the depo, objection is NOT WAIVED unless as to the form of the question. 3. This means that the scope of depos is beyond just admissible questions at trial, thus, you don’t have to object to these things at the time of depo. (ex: no hearsay objection). But if the lawyer tries to use this question from the depo at trial, then you object at trial. S. Rule: If don’t object as to form of the question at depo the objection is waived. 1. compound question 2. assumes facts not in evidence 3. argumentative 4. leading 5. calls for speculation a. Don’t object on hearsay; unqual expert; etc. b. The asking attorney is allowed to rephrase the question

T. When to pull the witness out of a deposition 1. Bad to threaten to do something and then not do it. (ex: tape guy threatened to pull the witness and didn’t) 2. decide whether the depo has reached the level of undue harassment 3. give a warning 4. if other side does again – make note of it in the record and walk 5. don’t have to allow for an abusive type of deposition a. don’t have to deal w/ condescending gestures; rolling of eyes; sarcastic tone of voice; etc. b. if this happens; document it in the evidence c. if they don’t stop – have to follow through at some point U. Questioning a friendly witness in a deposition 1. ask questions of your own witness a. 1. for settlement purposes b. 2. rehabilitate a witness w/ eye toward future trial testimony i. ex: show he’s not a drunk c. 3. to get on the record what the witness knows b/f loss of memory occurs d. 4. if think witness may not be available at the time of future trial

2. on tape: a. atty asked leading questions of his witness in the depo .

Page 62 of 73 Civ Pro II Outline Roberts/Spring 2002 b. Other side didn’t pose ojection; thus the objection is waived. 3. 2025(u) when depositions can be used at trial a. can be used as impeachment anytime b. for any purpose (impeachment or evidence of the fact) i. if the deponent is an adverse party; ii. even if the party is available to testify (eg. in addition to testimony) 4. 2025 (u)(3)(A) -- other ways to use depo testimony a. If deponent: i. resides over 150 miles from trial ii. uses privilege at trial iii. is otherwise disqualified from testifying iv. dead or ill v. absent from trial and cannot appear through reasonable diligence 5. Don’t rely on using just depositions at trial a. dull; not as persuasive b. can’t observe demeanor of the person

XX. INTERROGATORIES A. In general 1. prepared by the lawyer and client 2. written questions directed to the parties only 3. not used for non-party witnesses 4. other side answers under oath 5. 30 days to prepare answers and return (or object) 6. propounding party = party who sends out the interrogatories 7. propounding party may make a motion to compel further interrogatories 8. Scope of discovery is same as in depositions

B. Interrogatories used 1. to make the other side do research for an answer a. in deposition, can say “I don’t know” b. Interrogatories – “I don’t know” is not good answer c. the party must look at any info in the control of the party or the party’s attorneys d. use to get records of amounts of money e. neater and more precise than depositions f. well tailored questions and answer 2. for discovery 3. narrowing down issues a. can’t get someone to “reveal” something

Page 63 of 73 Civ Pro II Outline Roberts/Spring 2002 b. won’t get the “smoking gun” C. Interrogatories are NOT used to harass

D. Interrogatories ask for: (anything relevant to matter and likely to lead to discovery of admissible evidence) 1. contentions: ex: state all facts on which you base your contention 2. identity of witnesses 3. identify all documents relevant to a particular issue

E. Specially Prepared v. Form Interrogatories 1. Specially Prepared Interrogatories: a. CCP 2030(c) Limited to 35 specially prepared interrogatories b. no preface or sub-parts allowed – 35 only! c. can use as many Form Interrogatories as you want d. 2030(c) can attach declaration for additional discovery by swearing that it is necessary to get more interrogatories. The other side then has the burden of proving that you do NOT need more discovery; seeking protective orders. e. more than 35 usually needed in most business litigation

2. Form Interrogatories a. start p. 95

3. What is too broad a question? Overly burdensome? a. Allowed: must ask about a specific contention in the complaint i. this has been held to be not too broad b. Too broad: if you go beyond individual contentions i. ex: state all facts on which you base your complaint. This is too broad F. Court requires that you meet and confer with the other side b/f bring motion for a protective order G. How to respond to interrogatories: 1. You don’t have to answer the question if it requires the preparation of a summary or abstract of business records and such summary does not already exist. Instead, can identify the documents w/ the information contained in them and make those documents available to the propounding party. 2. objecting to interrogatories: 3. if don’t object then you have waived your right to object 4. object on grounds of a. privilege b. atty work product 5. don’t object on grounds on non-discovery objections a. hearsay

Page 64 of 73 Civ Pro II Outline Roberts/Spring 2002 b. speculation c. not admissible at trial H. have 30 days to answer interrogatories 1. if served on you by mail you get extra 5 days (35 days from the date of mailing) 2. must be answered under oath 3. verified 4. sent back w/ any objections 5. other side may take 45 days to make motion to compel I. Form Interrogatories 1. Check as many as possible but only those that make sense 2. Good strategy: send out form interrogatories first then send special interrogatories later to fill in the gaps J. Specially Prepared Interrogatories 1. see 4/11 handout 2. Bad interrogatories are a. too broad; b. compound c. don’t ask for documents to be attached (parties not obligated to do so) 3. Questions too narrow are bad a. ex: from whom did you purchase the coat? 4. p. 2 no. 17 -- Better to base the question on a specific contention in the complaint. a. ex: 17. State all facts in support of your contention that you owned or possessed the full length albino mink coat, referred to in ¶ 9 of your complaint, on June 10, 1985. 5. Not allowed to do “shotgun interrogatories” a. Each interrogatory must stand on its own b. can’t have an instructions section c. can have definitions to specific things but cannot have definitions section K. How to draft good interrogatories: 1. Step 1: Identify the important claims being made 2. Step 2: w/ respect to each of those contentions – ask 3 questions a. facts b. documents c. witnesses d. ex: p. 4 handout 3. Step 3: follow up w/ other interrogatories if other claims come up a. Ex: if you ask in interrogatories and depositions to ask for all documents and facts that show that she was the owner of the coat -- and then she produces a

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receipt at trial! You would object b/c of prejudice, then ask for receipt excluded or ask for trial continuance. Discretion of judge. L. Required in interrogs in the code: a. Identify the case b. ID interrogs c. what set d. who propounding it to M. big 3 1. deps 2. interrogs 3. requests for documents or other tangible things N. Requests for Admissions CCP 2033 1. Definition: RFAs asks someone to admit or deny the truth of something a. asks to admit or deny the truth of any rel fact or the gen of any rel document or wh making legal contention ... or concl of law 2. purpose of RFAs: to narrow the issues (not to find out facts) 3. can do RFAs during course of discovery a. ex: car accident. May want to ask the D to admit that he ran the red light. If you know this you wont have to devote resources to proving this point. 4. Incentive for RFAs: a. sanctions (pay cost of proving it) if fail to admit and other side proves it at trial and that the other side can show that the denial of RFA was unreasonable b. ex: P is suing a corp. P wants to show X wholly owned sub of corp. Y. Send RFA to Y to admit they own X. They won’t. You have to get documents proving that Y owns X. Even if P loses the whole case, at the end of the trial can make motion for the costs and attorney fees in proving this fact. However, if there is a good faith dispute, you can deny, etc. 5. “Admit the genuineness of certain documents” is good one. 6. Examples of good RFAs: a. BOK case: i. do you admit the truth of the following a) x and y entered into a K on [date] b) x was competent to enter into the K c) exhibit 1 is a true and correct copy of the K entered into d) the P performed all of the conditions precedent to the K b. Ima Wynner case: i. do you admit the truth of the following: a) P was drinking on the evening of [date] b) Ima Wynner checked a coat with you c) the genuineness of the claim ticket d) the genuineness of the receipt for the coat (would be reasonable to deny though if haven’t been able to check this) e) that MM was working at the disco that night

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f) the things that MM were doing that night were within the scope of her employment 7. Admissions in RFAs are binding – have same effect as stipulation 8. Limit of 35 RFAs. a. Send as many as you want on documents b. more than 35 allowed if attach a declaration as to why you want to use more (as in interrogs) i. ex: the issues in the case are so complex that they are needed – Ex: there are 5 claims in the complaint, etc. c. judicial council form for them is worthless

9. Choices you have when you receive RFAs a. ADMIT (if it is the truth & have no reasonable reason for denying it. Ex: admit that you are the owner of the car involved in the accident.) b. DENY (if it is an issue in the case that you do not want to stipulate to) i. 2033(f) Code says that you cannot be too smug. Must almost rewrite the RFAs. ii. if request that admit that you are owner of mustang w/ license of ___, 1985 car but it is actually a 1986 – a) CANNOT JUST DENY THIS. Must tell the other side as much as is true. b) Would have to admit as much as is true. c) Unclear as to whether you then have to admit further information. c. TELL WHY ADMIT OR DENY i. Must make reasonable inquiry of things w/in your control and admit or deny. a) documents b) records c) employees ii. if you don’t have the info – can state that you “lack sufficient information to admit” if you made a reasonable inquiry d. OBJECT i. beyond the scope of discovery (not likely) ii. violates a privilege iii. work product iv. privacy v. too many vi. burdensome (not likely) vii. oppressive (not likely) O. Inspection Demands (CCP § 2031) 1. only w/ respect to party for tangible things (gain entry onto land also) 2. non-parties can only use depositions 3. lets you look at certain things

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4. valuable for finding information b/c you are not relying on what other side considers to be important 5. gives you the opportunity to look through things – to find the “smoking gun memo”! 6. frequently used in products liability cases a. ex: auto accident. Claim brakes are defective. D Ford will want to look at the actual car, test it, etc. Ford would use 2031 to do this. b. ex: baby pajamas on fire. c. ex: land case. adverse possession/boundary dispute. Need 2031 to gain entry onto land and test it, survey, etc. so that you won’t be trespassing. d. ex: look at dead bodies of cattle in case where feed claimed to kill the cattle. i. Cal won’t let you use it to dig up human bodies. ii. Made POs put on clothing that they wore during the time they shot a certain person – this is a stretch but was allowed. P. § 2031 is mostly used for document requests 1. How to ask for documents a. send to other party b. no limit c. can ask either (i) by document (ii) by category “reasonably particularizing each category of item” i. meaning of “reasonably particularizing each category of item” is much litigated ii. too broad: a) general litigation question b) any document having to do with this case; any business record that you have iii. okay: a) common sense test – the average person reading it can see what you are asking for b) drafts of a K; interoffice memos re the dispute; corresp or IO memos re the Ford Pinto c) even if they don’t keep the documents by category they may still have to give them to you (ex: if don’t keep the documents by car make, etc.) d. If you are having trouble getting what you need b/c of objections i. ask in interrog: how do you keep your business records? ii. if still object 2. § 2031 in general i. itemize what you want to look at (specific or by category) ii. must tell them what you want to do with it iii. can request to test it – iv. can request to test it so as to destroy it but will probably be objected to v. specifiy date 30 days hence vi. 5 extra days if mailed in Cal.

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vii. State a) date you want to inspect b) reasonable time during day c) reasonable place of inspection designated viii. other side has 30 days to respond w/: a) comply, or b) objection ix. if other side will not comply w/ certain requests, they must explain why a) 2031(g)(2) if unable to comply must tell why b) lost, destroyed, never in my possession, or doesn’t exist x. objection on grounds of privilege a) 2031(g)(3) says you must (1) list the specific documents you are objecting to, and (2) explain why you are making the objection (this is a somewhat recent amendment) 3. How to COMPLY to § 2031 Document Production a. Documents can be produced either i. by category or ii. the way they are kept in the usual course of business b. requesting party will call the other side and make arrangements in advance c. generally you go to where the documents are i. if ask for them to be sent to your office, other side will win on protective order if there is a warehouse full of documents! d. If other side is coming over to look at the documents: i. look at the documents yourself! ii. 2 ways to comply to § 2031 request for documents: a) look at them and pull the relevant documents, and give them to the other party in the order you feel is appropriate (1) can be by subject (2) but if you keep correspondence chronologically, you don’t have to pull them out and put them in a particular order (a) this is convenient for you (b) very difficult for the other side to find what is relevant (c) bad also b/c the other side is snooping through EVERYTHING (d) If you keep in atty document – you have waived the privilege (3) not allowed to take documents and jumble them up w/ irrelevant documents to trip up the other side e. Note: make sure that you have a record of the documents that you produce so that other can’t allege that you didn’t produce them. i. use Bates stamp to sequentially number them. f. stipulate to how much you are going to charge for the copying

Page 69 of 73 Civ Pro II Outline Roberts/Spring 2002 g. Have someone watching the other side look at the documents i. best to have someone who knows nothing to watch them and make sure no one rips the documents out of the files. ii. have someone who doesn’t know about the documents or instruct h. keep a record of what the other side is copying i. can tell what the other side thinks is relevant ii. on the other hand, the other side may copy irrelevant documents to throw you off course!! that’s ok! 4. Location: a. provide a nice place for the other side to look at the documents as a nice gesture Q. Expert witnesses 1. Atty can hire as many experts as he wants a. Opinions of preliminary consulted experts are protected as attorney work product b. Experts called to trial – identities and opinions are DISCOVERABLE 2. CCP 2034 Simultaneous Exchange of information a. any party can begin the process of mutual exchange of expert witnesses b. time period to instigate the process 2034(b) i. no later than later of 2 dates: c. 2034(c) date for the exchange i. 20 days after you send the demand; or ii. 50 days before trial (whichever is later) d. The earliest time you can demand exchange of witnesses is 50 days b/f trial i. rationale: want the date to be late enough in the pretrial process for people to talk to experts and decide who to use. e. You may exchange the information about the identity of experts before the date agreed on but not advisable 3. Info: 2034(f)(1) a. Must make list setting forth name and address of each expert that will be testifying at trial b. each side must give an expert witness declaration in writing stating the following information for each expert used: i. their qualifications (degrees, knowledge) ii. a brief narrative statement of what the expert is going to say. Ie., the general substance of their expected testimony – specifically what they are going to say. a) you want to know whether it is worth taking the deposition of this person b) need to know if you need to probe the expert for information, etc. iii. expert has agreed to testify and will know enough to give a meaningful

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iv. statement of the other side’s expert’s hourly fee for deposition testimony a) you are paying for this testimony b) fees are expensive and information in this statement will give you an idea of what to ask c) if the customary rate of the expert is outrageous – you can go to court and get a Protective Order. But if the fee is correct you may have to pay it. c. Note: Once an expert designated as going to trial – their reports are no longer protected by the attorney work product and must be produced/exchanged. i. may tell an expert not to make a report but this may make the expert look less than credible. 4. Rules re designated experts once information has been exchanged a. Generally, you can’t change designated experts b. New Subjects: You can make a supplemental expert list and designate a new expert for a new subject, if you don’t already have an expert for that subject, BUT ... c. But if you want to augment your expert list – you must make a motion in court to show good cause why you should be able to add experts 5. Expert depositions: a. because the experts are so expensive, this is the reason for requiring the statement of the expert’s opinion. Expert has to be familiar with the case and ready to give a meaningful deposition. b. send out notice of deposition 6. 2024(d) expert witness depositions can be taken up to 15 days b/f trial a. if want to compel discovery can do this as early as 10 days before trial b. don’t need to ask the court for a hearing on this 7. Location of expert depositions: a. w/in 75 mi of the court house where action is pending b. (other parties rule is different – note this) c. must estimate the time and tender the hourly fee d. must pay for the whole deposition (all people are asking questions) but this is subject to a protective order (can object to ridiculous amounts of questions) e. if underestimate – you can pay more but try to make a good faith estimate R. Motions for Summary Judgment (summary adjudication) 1. SJM in general: a. disposes of the case before the trial b. if P wins MSJ then P wins the case and visa versa c. very rarely given b/c strong favor for trial on the merits 2. TEST FOR SJM: a. Convince the judge that there is no triable issue as to any material fact; b. there is nothing to dispute

Page 71 of 73 Civ Pro II Outline Roberts/Spring 2002 c. may just be an issue of law for the judge; no factual determination needs to be made and no fact finder needed 3. Demurrer  can’t bring in evidence; the court takes everything pleaded on the face of the complaint as true. 4. SJM  can bring in evidence; affidavits, discovery devices. As long as the other side cannot dispute the fact in the evidence set forth, you win the SJM i. ex: auto accident. P sues D and E (employer) in auto accident case. You represent E. Want to get E out of the case. Facts discovered that the accident was at night after D was on a date and the D was not under the E’s employ at the time of the accident. To get SMJ -- you submit declarations to get the E out of the case. If P submits a declaration from a drunk – the judge must deny the SJM because now there is a triable issue of fact. Must be no trialble issue of fact for SJM. Even though Ps witness is not very credible, that doesn’t matter. As long as there is some triable issue. ii. Note: Declarations must be from someone who has personal knowledge of a material fact. 5. To oppose a SJM: a. You must convince the court that there is a dispute as to some fact that is important/material in the case. 6. SJM appropriate in 2 cases: a. the parties agree on the facts and there is only a question of law i. ex: parties agree to auto accident facts. But was doing an unpaid favor for his boss at the time even though after work hours. Question of law: is he w/in scope of business if he is doing an unpaid errand for his boss. May go for SJM here and get the issue over with early. ii. other examples: SOL question; issues re whether a duty exists (but cannot get SJM on the breach of a duty). b. evidence brought in that the other side cannot to dispute 7. Where there is a factual dispute, SJM are very difficult to get S. How SJMs work: 1. ex: If P makes Motion for SJ on breach of K grounds a. notice of motion b. memo of points and auth saying why entitled for SJM c. declarations of witnesses, etc d. Make Separate Statement of Undisputed Material Facts CRC 342(d) i. ISSUE: list the issues ii. PROOF: show how you have undisputed evidence iii. eg., show how for every element for the Ps cause of action, the P has admissible evidence to prove each element. e. D must rebut the Statement by submitting a Separate Statement of DISPUTED Material Facts(s): i. show at least there is a triable issue of matieral fact as to ANYTHING – any ONE issue -- that the P has to prove ii. show that there is a triable defense 2. If D moves for SJ:

Page 72 of 73 Civ Pro II Outline Roberts/Spring 2002 a. not triable issue of material fact as to one issue that the P has to prove i. ex: BOK action under statute of frauds and the D brings SJM showing that there is no contract in existence in writing b. NOTE: It is easier for the Defendant to have the case be dismissed on SJM b/c only has to show that there is one material element that the P cannot prove. T. Motion for Summary Adjudication 437(f) 1. This is a mini form of Summary Judgment Motion where a party moves to get rid of only one action in the case 2. Same test as SJM but this is for separate claims for damages a. may bring SJM and SAM in the alternative U. SJM -- Time Periods 437c (a) 1. 60 days after the other party’s appearance 2. must give at least 28 days notice of motion for summary judgment 3. time is extended by 5 days for mailing, etc. 4. must do separate statement 5. opp papers due 14 days b/f hearing (incl separate statement of mat facts) V. SJM -- Burdens of Proof 437c(o) 1. what P has to show 437c(o)(1) 2. what the D has to show 437c(o)(2)

XXI. The Exam A. Counting Days 1. R: if the last day is on WE or H then go to the next COURT day 2. See the syllabus 3. 28 days notice for SJM + 5 mail = 33 days notice a. count backwards to check on date for notice 4.

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