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PART I Introduction to Civil Litigation for the Paralegal

CHAPTER 1 Litigation and the Paralegal

KEY POINTS •Civil Litigation in State Courts is regu- California Code www.leginfo.ca.gov/ lated by: calaw.html California Code of California Rules of Court www.courtinfo.ca. California Rules of Court gov/rules/ Local Rules of Court , Cases california.findlaw. California com/ • The Judicial Council adopts rules and approves Judicial Council Forms www.courtinfo.ca. forms for litigation practice in California. gov/forms/ Recent California Cases www.courtinfo.ca. • Bookmark these cites.You will refer to them often: gov/opinions/

WHAT CIVIL LITIGATION IS The basic litigation process in the federal and state court most importantly, a different set of laws control. In spite of systems is similar. Nevertheless, many differences be- the differences, the job of the attorney and the paralegal in tween the two systems do exist. Time requirements are the litigation process remains the same. often not the same, the format of documents may vary and,

DIFFERENT TYPES OF LAWSUITS Different types of civil lawsuits exist in California just as general litigation process is similar, special forms must be they do in all jurisdictions. Some of these differences used for pleadings. result in important changes in the litigation process, espe- cially in cases, unlawful detainer (eviction ac- UNLAWFUL DETAINER ACTIONS tions), and cases where the plaintiff is asking for less than $25,000. Unlawful detainer actions, while regulated by the general rules of civil litigation, have much shorter time require- ments for the various aspects of litigation. FAMILY LAW CASES Family law cases, although civil in nature, are governed by special rules found in the Family Code. Although the 1 CA_Part_I_V4.qxd 9/4/04 12:55 AM Page 2

2 PART I Introduction to Civil Litigation for the Paralegal

CASES OF LIMITED JURISDICTION have been created to deal with these cases effectively, by providing the judges with special training and resources. Lawsuits where the plaintiff requests less than $25,000 in A complex civil case is defined by California Rule of damages are governed by special code provisions known Court, Rule 1800 as “an action that requires exceptional as Economic Litigation for Limited Civil Cases (found in judicial management to avoid placing unnecessary bur- sections 90–100 of the California Code of Civil Proce- dens on the court or the litigants and to expedite the case, dure). These rules are intended to simplify litigation pro- keep costs reasonable, and promote effective decision- cedures in small cases. These sections limit discovery but making by the court, the parties, and counsel.” These do not substantially alter the litigation process. include such cases as antitrust, securities claims, environ- mental and mass , and class actions. COMPLEX CIVIL LITIGATION Complex civil cases often present difficult problems for the court. Recently, pilot programs in several counties

ALTERNATIVES AND LIMITATIONS TO LITIGATION In California alternatives and limitations to the litigation (ADR), in particular, mediation. Rules of Court 1620 et process are growing in popularity. Judicial arbitration, a seq. contain various procedures and rules for the use of special type of nonbinding arbitration, has been in effect mediators in California. Within the state, several ADR for many years. Judicial arbitration is part of the litigation providers have been established. These providers consist process. The California Code of Civil Procedure (referred of retired judges and experienced attorneys who offer their to as CCP) provides that in superior courts having eighteen services as arbitrators, mediators, discovery referees, and or more judges and cases where the damages do not ex- private judges. ceed $50,000 shall be ordered to a nonbinding arbitration Rule of Court 201.9 requires courts to provide parties hearing. Judicial arbitration is optional in other courts. If with an information packet concerning alternative dispute any party does not accept the award, then the case goes to resolution. This information can be made available online. trial. A party who does not agree with an arbitration award Along with the encouragement of ADR, the California must act promptly to reject it, however. A party rejects an legislature had also enacted laws that limit the litigation arbitration award by filing a request for trial de novo with process, especially in the area of medical malpractice. For the court in which the action is pending within thirty days. example, for medical malpractice cases various statutes (See CCP §§ 1141.10 et seq.). Rules of Court 1600 et seq. limit the amount of noneconomic damages (usually dam- contain additional information for alternative dispute res- ages for pain and suffering) that can be recovered, limit the olution in civil cases. amount of attorney fees that can be charged, and limit the The California courts have been encouraged to de- request for punitive damages. velop other methods of alternative dispute resolution

SOURCES OF LAW The law of California civil litigation is found in the listing: store.westgroup.com. A second popular collection California Constitution, California cases, California codes of practice books are those published by Continuing Edu- (in particular, the California Code of Civil Procedure), the cation of the Bar (CEB). Numerous pleading forms are California Rules of Court and various local rules of court. also found in the California Forms of Pleading and Prac- Most courts have posted their local rules of court on the tice published by Matthew Bender. Internet. Local rules of court can usually be found on any court’s homepage. A directory of state court homepages PROFESSIONAL ORGANIZATIONS (trial, appellate, and Supreme Courts) can be found at Many counties in California have paralegal associations. www.courtinfo.ca.gov/courts/ Many of these belong to the California Alliance of Numerous secondary sources exist for litigation prac- Paralegal Associations (CAPA). Their website is www. tice in the California courts. Several works are published caparalegal.org. This site links to many local associations. by the Group. Check their website for a complete CA_Part_I_V4.qxd 9/4/04 12:55 AM Page 3

CHAPTER 2 The Courts and Jurisdiction 3

CHAPTER 1 Addenda

THE JUDICIAL COUNCIL AND CALIFORNIA CIVIL LITIGATION The Judicial Council in California is a group of judges, at- legal forms to be used in the courts. Some of the Judicial torneys, and legislative representatives. One of the impor- Council forms are mandatory, while others are optional. tant functions of this group is to adopt rules for practice Specific Judicial Council forms will be referred to in and procedures in the California courts. The Judicial subsequent chapters. The Judicial Council website can be Council has also adopted and approved various standard found at www.courtinfo.ca.gov/courtadmin/jc/.

THE TRIAL DELAY REDUCTION ACT In an effort to reduce the delay in resolving civil cases, in California Government Code §§ 68603 et seq., California 1986 the California legislature enacted the Trial Court Rules of Court, Rules 205–210 and various local rules of Delay Reduction Act, more commonly referred to as fast court. The rules are sometimes referred to as “Differential track. Generally, fast track requires closer judicial supervi- Case Management Rules.” The California Government sion of cases, and results in many of the time limits being Code sets certain minimum time limits that must be al- shortened. At first this was a pilot project and was adopted lowed for serving and responding to pleadings, but within only in selected counties. It is now in effect throughout the those limits, each is allowed to proscribe time re- state. Fast track rules require parties to act promptly in quirements within the county. As a California litigation serving and responding to pleadings and severely limit paralegal, you must be aware of any local rules regarding the right of attorneys to grant extensions or continuances fast track. Important attention must be paid to time limits. to one another. Fast track procedures are found in the

CHAPTER 2 The Courts and Jurisdiction

KEY POINTS • The California court system is patterned after the • Bookmark these websites, as they contain useful federal court system. information: • Most California trial courts are known as superior California Court www.courinfo. ca.gov court. Information • Smaller civil cases (under $25,000) are referred to Directory to state Courts www.courts.net as limited civil cases. CA_Part_I_V4.qxd 9/4/04 12:55 AM Page 4

4 PART I Introduction to Civil Litigation for the Paralegal

UNITED STATES COURTS California is divided into four for the federal trial courts: District Location Website Northern www.cand.uscourts.gov/ District Central www.cacd.uscourts.gov/ District Eastern Sacramento www.caed.uscourts.gov/ District Southern www.casd.uscourts.gov/ District

UNITED STATES COURTS OF APPEALS California is in the Ninth Circuit. The court is located in San Francisco. Its website is www.ca9.uscourts.gov/.

STATE COURT SYSTEMS The California state court structure is patterned after the cases. Sections 85–100 of the Code of Civil Procedure federal system and contains trial courts, courts of appeal control. The major differences in these cases are a reduced and one state supreme court. filing fee and more limited discovery. A complete list of all cases designated as limited civil cases is found in sections TRIAL COURTS 85, 86, and 86.1. The following is a list of some of the more common equitable cases now referred to as limited Until June 1998, the California court system consisted of civil cases: two different types of trial courts, superior courts and 1. Actions to dissolve a partnership where the total municipal courts. In actions for money damages (actions assets of the business do not exceed $25,000; at law), the superior court had jurisdiction to hear cases where the amount demanded, exclusive of interest and 2. Actions of interpleader where the mount of money costs, exceeded $25,000. The equitable jurisdiction of the or the value of the property involved does not superior court extended to all cases except those in which exceed $25,000 (see Chapter 5 for discussion of equitable jurisdiction had been specifically conferred upon interpleader); the municipal court. The municipal courts had jurisdiction 3. Actions to cancel or rescind a contract when this over actions at law where the amount demanded was relief is sought in connection with an action to $25,000 or less and in certain specified equitable cases. recover money or property not exceeding $25,000 in value; TRIAL COURT UNIFICATION 4. Unlawful detainer (eviction) actions where the total damage claimed is $25,000 or less; In response to legislative action and voter approval, after June 1998, each county was given the option of unifying its 5. Actions to enforce or foreclose liens on personal superior and municipal courts into one court system. The property where the amount of the lien is $25,000 unified courts would all be superior courts. All counties in or less; the state have unified. All trial courts are superior courts 6. Actions to enforce mechanics liens (liens against and all judges are superior court judges. real property for work done on the property) In spite of the unification, the courts still recognize the where the amount of the lien is $25,000 or less; differences between cases that were at one time in the ju- 7. Actions for declaratory relief when brought as a risdiction of municipal courts and those that were within crosscomplaint in a limited civil case; the jurisdiction of superior courts. Cases (both cases at law 8. Actions for temporary restraining orders, prelimi- and cases in equity) that previously would have been filed nary injunctions, accountings or appointment of in municipal court are now referred to as limited civil receivers where necessary in a limited civil case. CA_Part_I_V4.qxd 9/4/04 12:55 AM Page 5

CHAPTER 2 The Courts and Jurisdiction 5

In addition to original jurisdiction, the superior court Del Norte, Contra Costa, Alameda, also maintains an appellate division that hears appeals and San Mateo from limited civil cases. In exercising appellate jurisdic- Second Appellate San Luis Obispo, Santa Barbara, tion, three superior court judges review a case as a panel, District Ventura, and Los Angeles in the same way that any court of appeals functions. Third Appellate Siskiyou, Modoc, Trinity, Shasta, District Lassen, Tehama, Plumas, Colusa, SMALL CLAIMS COURT Glenn, Butte, Sierra, Sutter, Yuba, A small claims division exists in all superior courts. In Nevada, Yolo, Placer, Sacramento, general, small claims courts have jurisdiction to hear cases El Dorado, San Joaquin, Amador, where the amount in controversy is less than $5000 (CCP Calaveras, Alpine, and Mono §116.220). In most cases, parties in small claims court Fourth Appellate Inyo, San Bernadino, Riverside, proceedings are not allowed to be represented by attor- District Orange, San Diego, and Imperial neys. As a result, the procedures are kept fairly simple and Fifth Appellate Stanislaus, Tuolumne, Merced, only the defendant is allowed to appeal. Such an appeal is District Mariposa, Madera, Fresno, Kings, filed in the superior court and results in a retrial of the Tulare, and Kern case. Parties are allowed to be represented by attorneys in Sixth Appellate Santa Clara, Santa Cruz, Monterey, a small claims court appeal. District and San Benito

COURTS OF APPEAL STATE SUPREME COURT California is divided into six appellate districts. The larger California has one state Supreme Court consisting of districts are further divided into divisions. Like their fed- seven justices. Like the United States Supreme Court, it is eral counterpart, these courts are primarily courts of re- a court that primarily exercises appellate jurisdiction. Also view. They hear appeals from cases of unlimited jurisdic- like the United States Supreme Court, the exercise of that tion originally tried in the superior court. Cases are heard jurisdiction is usually discretionary. To request a hearing by a three-judge panel and the majority decision prevails. in a civil case before the state Supreme Court, a party files The following is a list of the counties within each of a petition for review rather than a petition for a of the six districts: certiorari (Rule 28, Calif. Rules of Court). First Appellate San Francisco, Marin, Sonoma, Napa, District Solano, Lake, Mendocino, Humboldt,

JURISDICTION

SUBJECT MATTER JURISDICTION Thus, if a defendant is domiciled within the state or has sufficient contacts with the state to satisfy constitu- The superior court has subject matter jurisdiction over all tional due process requirements, the state courts can exer- civil cases not within the exclusive jurisdiction of federal cise personal jurisdiction over that defendant. Whether a court. defendant has sufficient contacts with the state is a ques- tion of fact to be determined in each case. Case law is im- CHALLENGING SUBJECT MATTER JURISDICTION portant in this determination. One such case is Pavlovich v. Superior Court, 29 Cal. 4th 262 (2002), a case dealing with Subject matter jurisdiction in California is often chal- the important question of personal jurisdiction over non- lenged by filing a special pleading known as a in residents whose contacts with the state are through the In- response to the complaint (CCP § 430.10). Lack of subject ternet. In Pavlovich a non-resident who posted a program’s matter jurisdiction can also be raised in the answer as an source code on the Internet was sued in California for mis- affirmative defense. appropriating a trade secret of a California corporation. The California Supreme Court held that simply posting the PERSONAL JURISDICTION OVER DEFENDANT source code on the Internet was not sufficient to give the Personal jurisdiction over the defendant in an action is California court jurisdiction over the non-resident. controlled by CCP § 410.10: A court of this state may exercise jurisdiction on any NOTICE basis not inconsistent with the Constitution of this The exercise of personal jurisdiction over a defendant is state or of the United States. dependent on proper notice or service of process. In CA_Part_I_V4.qxd 9/4/04 12:55 AM Page 6

6 PART I Introduction to Civil Litigation for the Paralegal

California, service of process is described in sections purpose of challenging the jurisdiction. A motion to quash 413.10–417.40 of the Code of Civil Procedure. Service of service of the summons is the most common way of doing process is discussed in more detail in Chapter 5. this (CCP § 418.10). A defendant who files an answer or a demurrer without simultaneously making a motion to CHALLENGING PERSONAL JURISDICTION quash waives any defect in the exercise of personal juris- diction by the court and thereby confers personal jurisdic- In California, personal jurisdiction must be challenged by a tion on the court. special appearance, that is an appearance made for the sole

VENUE

STATE COURT VENUE CHANGING VENUE Venue in state court actions is generally covered in sec- A motion for change of venue in a California action is tions 392–402 of the Code of Civil Procedure. Any county governed by sections 396b and 397 of the Code of Civil or judicial district in which any of the defendants reside at Procedure. The grounds for such a motion in general civil the commencement of the action is usually a place of cases are: proper venue. If the action is for damages for personal in- 1. The court designated in the complaint is not a jury or death, the action can also be maintained in the proper court; county in which the injury occurred. Contract disputes can 2. An impartial jury cannot be had in the county in usually be maintained in the county where the contract is which the action was originally filed; to be performed, in the county in which the contract was entered into, or in the county in which the defendant 3. Convenience of witnesses or interests of justice; resides at the commencement of the action. If the action is 4. No judge of the court is qualified to hear the case. one regarding title to real property, recovery of real prop- If the motion is granted, the case will be transferred to erty, or foreclosure of a lien on real property, the county another court of proper jurisdiction (CCP § 398). The code where the property is located is usually the county of also requires that certain costs and fees be paid in connec- proper venue. tion with the transfer (CCP §§ 396b and 399).