ohio civil litigation - delmarlearning.comcivil litigation in california state courts is regulated...
TRANSCRIPT
Prepared by
Joanne Banker Hames
CALIFORNIASTUDENT SUPPLEMENT
to Accompany
CIVIL LITIGATIONTHIRD EDITION
Peggy N. Kerley, Joanne Banker Hames, Paul A. Sukys
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CONTENTS
PART I INTRODUCTION TO CIVIL LITIGATION FOR THE PARALEGAL
Chapter 1 Litigation and the Paralegal ...................................................................... 1
Addenda .................................................................................................... 2
Chapter 2 The Courts and Jurisdiction ...................................................................... 3
PART II INITIATING LITIGATION
Chapter 3 Preliminary Considerations ...................................................................... 6
Chapter 4 Investigation and Evidence ....................................................................... 9
Chapter 5 The Initial Pleadings ............................................................................... 11
Chapter 6 Responses to the Initial Pleading ............................................................ 26
Chapter 7 Motion Practice....................................................................................... 41
PART III DISCOVERY
Chapter 8 Overview of the Discovery Process ........................................................ 47
Chapter 8a Exchange of Information Concerning Expert Witnesses ........................ 52
Chapter 9 Depositions ............................................................................................. 56
Chapter 10 Interrogatories ......................................................................................... 65
Chapter 11 Physical and Mental Examinations......................................................... 77
Chapter 12 Request For Documents .......................................................................... 79
Addendum .............................................................................................. 82
Chapter 13 Request for Admissions .......................................................................... 83
Addendum .............................................................................................. 85
PART IV PRETRIAL, TRIAL, AND POSTTRIAL
Chapter 14 Settlements, Dismissals, and Alternative Dispute Resolution ................ 88
Chapter 15 Trial Techniques ..................................................................................... 92
Chapter 16 Posttrial Practice ..................................................................................... 95
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PART I INTRODUCTION TO CIVIL LITIGATION FORTHE PARALEGAL
CHAPTER 1 LITIGATION AND THE PARALEGAL
■ Civil Litigation in California State Courts is regulated by:
California Code of Civil ProcedureCalifornia Rules of CourtLocal Rules of CourtCalifornia Case Law
■ The Judicial Council adopts rules and approves forms for litigation practice in California.
■ Bookmark these cites. You will refer to them often:
California Code www.leginfo.ca.gov/calaw.htmlCalifornia Rules of Court www.courtinfo.ca.gov/rules/California Codes, Cases california.findlaw.com/Judicial Council Forms www.courtinfo.ca.gov/forms/Recent California Cases www.courtinfo.ca.gov/opinions/
KEY POINTS
WHAT CIVIL LITIGATION ISThe basic litigation process in the federal and state court
systems is similar. Nevertheless, many differences betweenthe two systems do exist. Time requirements are often notthe same, the format of documents may vary and, most im-portantly, a different set of laws control. In spite of the dif-ferences, the job of the attorney and the paralegal in thelitigation process remains the same.
DIFFERENT TYPES OF LAWSUITSDifferent types of civil lawsuits exist in California just
as they do in all jurisdictions. Some of these differencesresult in important changes in the litigation process, espe-cially in family law cases, unlawful detainer (eviction ac-tions), and cases where the plaintiff is asking for less than$25,000.
Family Law CasesFamily law cases, although civil in nature, are governed
by special rules found in the Family Code. Although thegeneral litigation process is similar, special forms must beused for pleadings.
Unlawful Detainer ActionsUnlawful detainer actions, while regulated by the gen-
eral rules of civil litigation, have much shorter time requirementsfor the various aspects of litigation.
Cases of Limited JurisdictionLawsuits where the plaintiff requests less than $25,000
in damages are governed by special code provisions knownas Economic Litigation for Limited Civil Cases (found insections 90–100 of the California Code of Civil Procedure).These rules are intended to simplify litigation proceduresin small cases. Although these sections do limit discoverythey do not substantially alter the litigation process.
Complex Civil LitigationComplex civil cases often present difficult problems for
the court. Recently, pilot programs in several counties havebeen created to deal with these cases effectively, by provid-ing the judges with special training and resources. A com-plex civil case is defined by California Rule of Court, Rule1800 as “an action that requires exceptional judicial man-agement to avoid placing unnecessary burdens on the courtor the litigants and to expedite the case, keep costs reason-able, and promote effective decision-making by the court,the parties, and counsel.” These include such cases as anti-trust, securities claims, environmental and mass torts, andclass actions.
ALTERNATIVES AND LIMITATIONS TOLITIGATION
In California alternatives and limitations to the litigationprocess are growing in popularity. Judicial arbitration, aspecial type of nonbinding arbitration, has been in effectfor many years. Judicial arbitration is part of the litigation
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process. The California Code of Civil Procedure (referredto as CCP) provides that in superior courts having ten ormore judges (or eighteen judges, if the county has no mu-nicipal court), cases where the damages do not exceed $50,000can be ordered to a nonbinding arbitration hearing. Judicialarbitration is optional in other courts. If any party does notaccept the award, then the case goes to trial. A party whodoes not agree with an arbitration award must act promptlyto reject it, however. A party rejects an arbitration award byfiling a request for trial de novo with the court in which theaction is pending within thirty days. (See CCP §§ 1141.10et seq.)
The California courts have been encouraged to developother methods of alternative dispute resolution (ADR), inparticular, mediation. CCP 1775–1775.16 sets up a media-tion pilot project in Los Angeles county and in any othercounty choosing to participate. Rules 32 and 32.5 of theAppendix to the California Rules of Court also encouragesestablishment of ADR procedures. These rules also requirethe court to provide the parties with information about ADR.Within the state, several ADR providers have been estab-lished. These providers consist of retired judges and expe-rienced attorneys who offer their services as arbitrators,mediators, discovery referees, and private judges.
Along with the encouragement of ADR, the Californialegislature had also enacted laws that limit the litigation process,especially in the area of medical malpractice. For example,for medical malpractice cases various statutes limit the amountof noneconomic damages (usually damages for pain andsuffering) that can be recovered, limit the amount of attor-ney fees that can be charged, and limit the request for puni-tive damages.
THE JUDICIAL COUNCIL AND CALIFORNIACIVIL LITIGATION
The Judicial Council in California is a group of judges,attorneys, and legislative representatives. One of the impor-tant functions of this group is to adopt rules for practiceand procedures in the California courts. The Judicial Coun-cil has also adopted and approved various standard legalforms to be used in the courts. Some of the Judicial Councilforms are mandatory, while others are optional. Forms thatare mandatory are “adopted,” while optional forms are “ap-proved.” These words appear at the bottom of each JudicialCouncil form. Specific Judicial Council forms will be re-ferred to in subsequent chapters. The Judicial Council websitecan be found at www.courtinfo.ca.gov/courtadmin/jc/.
THE TRIAL DELAY REDUCTION ACTIn an effort to reduce the delay in resolving civil cases,
in 1986 the California legislature enacted the Trial Court
SOURCES OF LAWThe law of California civil litigation is found in the Cali-
fornia Constitution, California cases, California codes (inparticular, the California Code of Civil Procedure), the Cali-fornia Rules of Court and various local rules of court. Mostcourts have posted their local rules of court on the Internet.An index to local rules of state and federal courts is foundat www.nocall.org/rules.html. A second directory of localrules of court can be found at www.netlawlibraries.com(Although this is a fee-based site, users can access someservices free, including the directory to local rules of court.)Local rules of court can also usually be found on any court’shomepage. A directory of some state court homepages (trial,appellate, and Supreme Courts) can be found at numeroussites including:
www.courtinfo.ca.gov/courts/www.courts.net/ca/index.htmlwww.nocall.org/courtbbs.htm
Numerous secondary sources exist for litigation practicein the California courts. Several works are published by theWest Group. Check their website for a complete listing:store.westgroup.com. A second popular collection of prac-tice books are those published by Continuing Education ofthe Bar (CEB). Numerous pleading forms are also found inthe California Forms of Pleading and Practice published byMatthew Bender.
Professional OrganizationsMany counties in California have paralegal associations.
Many of these belong to the California Alliance of ParalegalAssociations (CAPA). Their website is www.caparalegal.org.This site links to many local associations.
CHAPTER 1 ADDENDA
Delay Reduction Act, more commonly referred to as fasttrack. Generally, fast track requires closer judicial supervi-sion of cases, and results in many of the time limits beingshortened. At first this was a pilot project and was adoptedonly in selected counties. It is now in effect throughout thestate. Fast track rules require parties to act promptly in servingand responding to pleadings and severely limit the right ofattorneys to grant extensions or continuances to one another.Fast track procedures are found in the California Govern-ment Code §§ 68603 et seq., California Rules of Court, Rules2101–2106 and various local rules of court. The rules aresometimes referred to as “Differential Case Management Rules.”The California Government Code sets certain minimum timelimits that must be allowed for serving and responding topleadings, but within those limits, each county is allowedto proscribe time requirements within the county. As a Californialitigation paralegal, you must be aware of any local rulesregarding fast track. Important attention must be paid to timelimits.
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CHAPTER 2 THE COURTS AND JURISDICTION
■ The California court system is patterned after the federal court system.
■ Most California trial courts are known as superior court.
■ Smaller civil cases (under $25,000) are referred to as limited civil cases.
■ Bookmark these websites, as they contain useful information:
California Court Information www.courtinfo.ca.govDirectory to California Courts www.courts.net/ca/index.html
KEY POINTS
UNITED STATES DISTRICT COURTSCalifornia is divided into four districts for the federal
trial courts:
District Location WebsiteNorthern San Francisco www.cand.uscourts.gov/
DistrictCentral Los Angeles www.cacd.uscourts.gov/
DistrictEastern Sacramento www.caed.uscourts.gov/
DistrictSouthern San Diego www.casd.uscourts.gov/
District
UNITED STATES COURTS OF APPEALSCalifornia is in the Ninth Circuit. The court is located in
San Francisco. Its website is www.ca9.uscourts.gov/.
STATE COURT SYSTEMSThe California state court structure is patterned after the
federal system and contains trial courts, courts of appealand one state supreme court.
Trial CourtsUntil June 1998, the California court system consisted
of two different types of trial courts, superior courts andmunicipal courts. In actions for money damages (actions atlaw), the superior court had jurisdiction to hear cases wherethe amount demanded, exclusive of interest and costs, ex-ceeded $25,000. The equitable jurisdiction of the superiorcourt extended to all cases except those in which equitablejurisdiction had been specifically conferred upon the mu-nicipal court. The municipal courts had jurisdiction over actionsat law where the amount demanded was $25,000 or less andin certain specified equitable cases.
Trial Court UnificationIn response to legislative action and voter approval, after
June 1998, each county was given the option of unifying its
superior and municipal courts into one court system. Theunified courts would all be superior courts. To date, mostcounties in the state have unified. In the few counties thathave not voted to unify, the established superior/municipalcourt system remains. The majority of counties, however,have seen considerable change. All trial courts are superiorcourts and all judges are superior court judges.
In spite of the unification, the courts still recognize thedifferences between cases that were at one time in the juris-diction of municipal courts and those that were within thejurisdiction of superior courts. Cases (both cases at law andcases in equity) that previously would have been filed inmunicipal court are now referred to as limited civil cases.Sections 85–100 of the Code of Civil Procedure control.The major differences in these cases are a reduced filingfee and more limited discovery. A complete list of all casesdesignated as limited civil cases is found in sections 85, 86,and 86.1. The following is a list of some of the more com-mon equitable cases now referred to as limited civil cases:
1. Actions to dissolve a partnership where the total as-sets of the business do not exceed $25,000;
2. Actions of interpleader where the mount of money orthe value of the property involved does not exceed $25,000(see Chapter 5 for discussion of interpleader);
3. Actions to cancel or rescind a contract when this reliefis sought in connection with an action to recover moneyor property not exceeding $25,000 in value;
4. Unlawful detainer (eviction) actions where the totaldamage claimed is $25,000 or less;
5. Actions to enforce or foreclose liens on personal prop-erty where the amount of the lien is $25,000 or less;
6. Actions to enforce mechanics liens (liens against realproperty for work done on the property) where the amountof the lien is $25,000 or less;
7. Actions for declaratory relief when brought as a cross-complaint in an action otherwise within the jurisdic-tion of the municipal court;
8. Actions for temporary restraining orders, preliminaryinjunctions, accountings or appointment of receiverswhere necessary in an action pending in the municipalcourt.
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In addition to original jurisdiction, the superior court alsomaintains an appellate division that hears appeals from ei-ther municipal court cases or cases of limited civil jurisdic-tion. In exercising appellate jurisdiction, three superior courtjudges review a case as a panel, in the same way that anycourt of appeals functions.
Small Claims CourtA small claims division exists in all municipal courts and
in all superior courts in counties not having municipal courts.In general, small claims courts have jurisdiction to hear caseswhere the amount in controversy is less than $5000 (CCP§116.220). In most cases, parties in small claims court pro-ceedings are not allowed to be represented by attorneys. Asa result, the procedures are kept fairly simple and only thedefendant is allowed to appeal. Such an appeal is filed inthe superior court and results in a retrial of the case. Partiesare allowed to be represented by attorneys in a small claimscourt appeal.
Courts of AppealCalifornia is divided into six appellate districts. The larger
districts are further divided into divisions. Like their fed-eral counterpart, these courts are primarily courts of review.They hear appeals from cases originally tried in the supe-rior court. Cases are heard by a three-judge panel and themajority decision prevails.
The following is a list of the counties within each of thesix districts:
First Appellate San Francisco, Marin, Sonoma, Napa,District Solano, Lake, Mendocino, Humboldt,
Del Norte, Contra Costa, Alameda,and San Mateo
Second Appellate San Luis Obispo, Santa Barbara,District Ventura, and Los Angeles
Third Appellate Siskiyou, Modoc, Trinity, Shasta,District Lassen, Tehama, Plumas, Colusa,
Glenn, Butte, Sierra, Sutter, Yuba,Nevada, Yolo, Placer, Sacramento,El Dorado, San Joaquin, Amador,Calaveras, Alpine, and Mono
Fourth Appellate Inyo, San Bernadino, Riverside,District Orange, San Diego, and Imperial
Fifth Appellate Stanislaus, Tuolumne, Merced,District Mariposa, Madera, Fresno, Kings,
Tulare, and Kern
Sixth Appellate Santa Clara, Santa Cruz, Monterey,District and San Benito
State Supreme CourtCalifornia has one state Supreme Court consisting of seven
justices. Like the United States Supreme Court, it is a court
that primarily exercises appellate jurisdiction. Also like theUnited States Supreme Court, the exercise of that jurisdic-tion is usually discretionary. To request a hearing in a civilcase before the state Supreme Court, a party files a petitionfor review rather than a petition for a writ of certiorari (Rule28, Calif. Rules of Court).
JURISDICTION
Subject Matter JurisdictionIn counties where trial courts have unified, the superior
court has subject jurisdiction over all civil cases not withinthe exclusive jurisdiction of federal court. However, smallercases are identified as limited civil cases. In the few coun-ties where trial court unification has not occurred, the supe-rior court has subject matter jurisdiction over civil cases wherethe demand exceeds $25,000 and over equitable cases wherethe code has not specifically conferred jurisdiction in themunicipal court.
Challenging Subject Matter JurisdictionSubject matter jurisdiction in California is often chal-
lenged by filing a special pleading known as a demurrer inresponse to the complaint (CCP § 430.10). Lack of subjectmatter jurisdiction can also be raised in the answer as anaffirmative defense.
Personal Jurisdiction over DefendantPersonal jurisdiction over the defendant in an action is
controlled by CCP § 410.10:
A court of this state may exercise jurisdiction on any basis notinconsistent with the Constitution of this state or of the UnitedStates.
Thus, if a defendant is domiciled within the state or hassufficient contacts with the state to satisfy constitutional dueprocess requirements, the state courts can exercise personaljurisdiction over that defendant. Whether a defendant hassufficient contacts with the state is a question of fact to bedetermined in each case. Case law is important in this de-termination.
NoticeThe exercise of personal jurisdiction over a defendant is
dependent on proper notice or service of process. In Cali-fornia, service of process is described in sections 413.10–417.40 of the Code of Civil Procedure. Service of processis discussed in more detail in Chapter 5.
Challenging Personal JurisdictionIn California, personal jurisdiction must be challenged
by a special appearance, that is an appearance made for thesole purpose of challenging the jurisdiction. A motion to
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quash service of the summons is the most common way ofdoing this (CCP § 418.10). A defendant who makes a gen-eral appearance by filing an answer or a demurrer waivesany defect in the exercise of personal jurisdiction by thecourt and thereby confers personal jurisdiction on the court.
VENUE
State Court VenueVenue in state court actions is generally covered in sec-
tions 392–402 of the Code of Civil Procedure. Any countyor judicial district in which any of the defendants reside atthe commencement of the action is usually a place of propervenue. If the action is for damages for personal injury ordeath, the action can also be maintained in the county inwhich the injury occurred. Contract disputes can usually bemaintained in the county where the contract is to be per-formed, in the county in which the contract was entered into,or in the county in which the defendant resides at the com-mencement of the action (CCP § 395). If the action is oneregarding title to real property, recovery of real property, or
foreclosure of a lien on real property, the county where theproperty is located is usually the county of proper venue(CCP § 392).
Changing VenueA motion for change of venue in a California action is
governed by sections 396b and 397 of the Code of CivilProcedure. The grounds for such a motion in general civilcases are:
1 The court designated in the complaint is not a propercourt;
2. An impartial jury cannot be had in the county in whichthe action was originally filed;
3. Convenience of witnesses or interests of justice;4. No judge of the court is qualified to hear the case.
If the motion is granted, the case will be transferred toanother court of proper jurisdiction (CCP § 398). The codealso requires that certain costs and fees be paid in connec-tion with the transfer (CCP §§ 396b and 399).
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PART II INITIATING LITIGATION
CHAPTER 3 PRELIMINARY CONSIDERATIONS
■ Statutes of limitations are found in CCP §§ 312–365.
■ Claim statutes exist when suing public agencies and estates.
■ Rules of Professional Conduct establish ethical standards for California attorneys.
■ Bookmark this important site:
California State Bar Assoc. www.calbar.org
KEY POINTS
DETERMINING THE EXISTENCE OF ACAUSE OF ACTION
California requires that the complaint contain facts whichsupport each element of a cause of action. Identifying thevarious causes of action which might apply in a case is thereforecritical.
TIME LIMITATIONS
Statute of LimitationsStatutes of limitations for various actions in California
are found in the Code of Civil Procedure, sections 312–365.Some of the more common time limitations for commenc-ing a civil action are:
One year Actions for personal injuries or deathresulting from wrongful act or neglect ofanother; actions for libel, slander, assault,battery, or false imprisonment
Two years Actions based on an oral contractFour years Actions based on a written contract
Additionally, California has date of discovery type stat-utes for professional malpractice and fraud:
Medical Malpractice
Three years from date of injury or one year from date ofdiscovery, whichever is first.
Legal Malpractice
Four years from date of wrongdoing, or one year fromdate of discovery, whichever occurs first.
Asbestos Exposure
One year from date of discovery of disability or death, orone year after suffering disability or death, whichever is later.
Fraud
Three years from date of discovery.
Special rules also exist for civil actions based on sexualabuse of minors (CCP § 340.1). Suit must be filed withineight years of the date plaintiff attains majority or withinthree years of the date plaintiff discovers or should havediscovered that a psychological injury was the result of abuse,whichever time is later.
Tolling the Statute of LimitationsGenerally, statutes of limitation are tolled when a person
is a minor or is incompetent. However, this is not the case ifthe action is against a public entity or employee for a casein which a claim must be made. (CCP § 352) Special rulesalso apply to malpractice cases. Filing deadlines are tolledin medical or legal malpractice cases under a number of cir-cumstances, including concealment of the wrongdoing orfraud. Medical malpractice also has special rules relating tominors (CCP § 352):
Actions by a minor shall be commenced within three years fromthe date of the alleged wrongful act except that actions by aminor under the full age of six years shall be commenced withinthree years or prior to his eighth birthday whichever provides alonger period.
Claim Statutes—Public AgenciesThe procedures for filing a claim and a lawsuit against a
state or local public agency in California are found in theGovernment Code starting with section 900. Prior to filingcertain types of lawsuits, including those for money dam-ages, a written claim must be submitted to the public agency(Govt. Code § 945.4). A claim relating to a cause of actionfor death or injury to person or property must be presentedto the board or governing body of the public agency withinsix months of the date of injury (Govt. Code § 911.2). Otherclaims must be presented within one year of the accrual ofthe cause of action. Government Code Section 910 outlinesthe requirements of the claim. It must contain the followinginformation:
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1. Name and address of the claimant;2. Address to which the person presenting the claim de-
sires notices to be sent;3. Date, place and other circumstances of the occurrence
or transaction that gave rise to the claim;4. General description of the indebtedness, obligation, injury
or damage sustained;5. Name of any public employee who caused the injury,
if known;6. Amount claimed if it totals less than $10,000; if more
than $10,000, then the claim should indicate whetherit would be a limited civil case.
Many agencies have their own claim form which is pro-vided on request. Once the claim has been submitted, thepublic agency has forty-five days to act on the claim (Govt.Code § 911.6). If the agency denies the claim and gives writtennotice of this to the claimant, the claimant has six monthsto file a lawsuit (Govt. Code § 945.6). If the agency fails togive notice of its action within forty-five days, the claimantcan treat the claim as being denied and file a lawsuit. Insuch a case, however, the six-month time limit does not ap-ply and the plaintiff has two years from the accrual of thecause of action to file a lawsuit (Govt. Code § 925.6). Nolawsuit can be filed until the forty-five days has lapsed. Thesetime limits replace the normal statute of limitations for anycase. When a lawsuit is filed, compliance with this sectionshould be alleged. It is common to attach a copy of the let-ter denying the claim to the complaint itself.
Should a plaintiff fail to submit a timely claim, section911.4 of the Government Code allows the claimant to peti-tion the public agency and request that he or she be allowedto file a late claim. This application must be filed withinone year of the date the cause of action arises. The boardshould grant this petition if the person injured was a minoror incapacitated before the expiration of the time in whichto file a claim. The petition should likewise be granted ifthe failure to file the claim was due to mistake, inadvert-ence, surprise, or excusable neglect (Govt. Code § 911.6).If the petition is granted, a claim is filed and the case pro-ceeds as if the claim had been filed in a timely fashion. Ifthe petition to file a late claim is denied, then the claimantmust file a petition with the court asking that he or she beallowed to file a complaint even though no claim was everfiled (Govt. Code § 946.6). If the court makes an order al-lowing the complaint to be filed, it must be done withinthirty days. All claims and notices can be served personallyor sent by mail (Govt. Code §§ 915–915.4)
Claims Against a DecedentSection 9351 of the California Probate Code provides that
an action may not be commenced against a decedent’s per-sonal representative unless a claim is first filed and is re-jected. The claim procedures are found in sections 9100–9256of the California Probate Code. A form for making the claimhas been approved by the Judicial Council. A claim is re-quired to be presented to the representative within four months
of date the representative was appointed or within thirty daysafter notice to creditors has been given, which is later. Pro-cedures for filing late claims are found in Probate Code section9103. If a claim is rejected, the claimant has three monthsafter that time to file a lawsuit.
The code further provides that should a defendant in alawsuit die during the pendency of the action, the lawsuitmust be suspended and a claim presented to the representa-tive. If the claim is rejected, the action can proceed in court(Prob. Code § 9370).
Some circumstances do exist in which claim requirementsdo not exist (Prob. Code §§ 9390–9392). For example, claimrequirements against a decedent do not apply if the dece-dent was insured for the claim and the amount of the claimdoes not exceed the policy limits (Prob. Code § 9390).
Actions Against Health Care ProfessionalsPrior to filing a lawsuit against a health care professional
for negligence (medical malpractice), plaintiffs are requiredto give the professional ninety days written notice of theirintention to commence action. The notice should include astatement describing the legal basis of the claim, and thetype of loss sustained including a description of the inju-ries. A copy of the notice should also be sent to the MedicalBoard of California or Board of Pediatric Medicine, as ap-plicable. No action on this notice need be taken by the healthcare professional and failure to give this notice does notaffect the lawsuit. However, if the plaintiff is representedby an attorney, that attorney is subjected to disciplinary pro-ceedings by the state bar for failing to comply (CCP §§ 364,364.1, and 365).
ETHICAL CONSIDERATIONS IN ACCEPTINGA CASE
The conduct of attorneys in California is governed bythe Rules of Professional Conduct adopted by the board ofgovernors of the state bar and approved by the CaliforniaSupreme Court. The California state bar maintains a websiteat www.calbar.org. The California Rules of Professional Con-duct, as well as ethics opinions of the state bar, are locatedon this site. Additional rules regarding ethical considerationsare found in the California Business and Professions Code(Sections 6000–6228).
ETHICAL CONSIDERATIONS AFTERACCEPTING A CASE
Attorney FeesIn most cases, as long as the attorney fee is not uncon-
scionable, the determination of the attorney fee is negotiable.In some instances, however, attorney fees have been statu-torily limited in California, for example, medical malprac-tice cases. Section 6146 of the Business and ProfessionsCode limits the fee to a certain percentage, the amount ofwhich depends on the amount of judgment or settlement.
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Contracts for attorney fees for services to a minor shouldbe approved by a court (Family Code § 6602).
Written Fee AgreementsSections 6147–6148 of the California Business and Pro-
fessions Code require that most fee agreements be in writ-ing. Although there are some exceptions, contingent feeagreements and other agreements where the fee is expectedto exceed $1,000 must be in writing. Furthermore the codedetails what must be included in those agreements. A con-tingent fee agreement must contain the following statements:
1. Statement of the contingency fee rate;2. How disbursements and costs will affect the fee and
the client’s recovery;3. Statement as to what extent, if any, plaintiff could be
required to pay the attorney for other related matters;4. Statement that, except for medical malpractice fees, the
fee is negotiable and not set by law, and if it is a medi-cal malpractice case, a statement that the statutory ratesare maximum amounts and lower amounts can be ne-gotiated.
The plaintiff in the case is entitled to a signed copy ofthe agreement. If the agreement is for an hourly rate or fixedfee, the following information must appear:
1. Hourly rate and other rates, fees and charges applicableto the case;
2. General nature of the legal services to be provided;3. Respective responsibilities of attorney and client.
Sample attorney fee agreements can be purchased fromthe State Bar of California for a nominal fee.
BillsUnder section 6148 of the Business and Professions Code,
all bills rendered by an attorney to a client must be veryspecific. They must clearly state the basis for the bill, andidentify the costs and expenses incurred. Also, upon requestof the client, the attorney must submit a written bill withinten days of the client’s request (unless a bill had been sentwithin the last thirty-one days).
Fee-sharingFee-sharing with nonattorneys is prohibited in Califor-
nia under Rule 1-320 of the Rules of Professional Conduct.Furthermore, fee-sharing arrangements (including referralfees) among attorneys is regulated by Rule 2-200. In gen-eral, this rule prohibits attorneys who are not partners orassociates, from sharing fees unless the client has consentedin writing and unless the total fee charged is not increasedby reason of the fee-sharing.
Fee DisputesShould a fee dispute arise between a client and an attor-
ney, prior to any litigation, the attorney must advise the cli-ent that the client has the right to have the dispute arbitrated(Bus. & Prof. Code § 6200 et seq.).
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CHAPTER 4 INVESTIGATION AND EVIDENCE
■ Interview techniques do not vary from one jurisdiction to another.
■ Corporate agents for service can be located through the secretary of state.
■ Business operating under fictitious names must file statements with the county clerk.
■ The rules of evidence for California are found in the California Evidence Code.
■ Bookmark these important websites:
California Secretary of State www.ss.ca.gov/Directories of Experts www.nocall.org/experts.htm
www.ca-experts.com/
KEY POINTS
LOCATING FACT WITNESSES OR ELUSIVEDEFENDANTS
Partnerships and CorporationsIn California, corporations and limited partnerships are
required to provide the secretary of state with the name andaddress of an agent for service of process. This informationis available to anyone and can be obtained from the secre-tary of state’s office in Sacramento (Calif. Corp. Code §§202, 1502, 15621). General partnerships are not required toprovide this information.
General partnerships are not required to file any infor-mation with the secretary of state or the county clerk unlessthey operate under a fictitious name. However, a partner-ship may file a statement of partnership in the secretary ofstate’s office. This document will list the names of the part-ners (Calif. Corp. Code § 16105). Access to many of therecords kept by the secretary of state is available throughthe Internet at www.ss.ca.gov.
Fictitious Name StatementsWhen individuals, partners or corporations operate their
businesses under fictitious names they are required to file afictitious name statement with the clerk in the county in whichthe business operates (although many fail to do so). Thisstatement will provide the name and address of the princi-pals of the business (Calif. Business and Professions Code§ 17900 et seq.).
TECHNIQUES FOR INTERVIEWING FACTWITNESSES
In general techniques for interviewing fact witnesses donot vary from one jurisdiction to another. However, Califor-nia paralegals must be careful when tape recording statements.
Tape Recording StatementsCalifornia Penal Code section 632 makes it a crime in
California to tape record a conversation that is intended tobe confidential unless all parties agree to the recording.
EVIDENCEThe basic rules of evidence for practice in California state
courts are found in the California Evidence Code and aresimilar in content to the federal rules. One notable excep-tion is the Best Evidence Rule which as been repealed inCalifornia and replaced with the Secondary Evidence Rule.Unless an injustice or unfairness would result, copies of docu-ments are admissible to prove the content of the document.On the other hand, use of oral testimony regarding the con-tent of documents is limited. Figure 4-1 is a list of certainrelevant provisions of the California Evidence Code.
EXPERT WITNESSESCalifornia expert witnesses are easy to locate on the Internet.
The following sites are especially helpful:www.nocall.org/experts.htmwww.ca-experts.com
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Figure 4-1 Relevant Provisions of the California Evidence Code
Evidence Code § Topic
210 Defines relevance as evidence that tends to prove or disprove a disputed fact.
240 Explains circumstances under which a witness is considered to be “unavailable” andis similar to federal rule.
250 Defines the term “writing,” which includes any handwriting, typewriting, printing,photostatting, photographing, and every other means of recording upon any tangiblething any form of communication or representation, including letters, words, pictures,sounds, or symbols, or combinations thereof.
255 Defines the term “original.”
352 Allows court to exclude relevant evidence if probative value is outweighed by undueconsumption of time or undue prejudice.
450–460 Explains the application of Judicial Notice (a judge’s finding that a fact is true withouteither party being required to prove it).
500–670 Deals with burden of proof, presumptions, and inferences.
700–778 Deals with competency of witnesses, expert witnesses, and examination of witnesses,generally allows leading questions on cross-examination (§ 767) and allows partyto call “adverse” parties as witnesses and conduct direct examination as if it werecross-examination (§ 776).
780-791 Deals with credibility of witnesses; generally disallows evidence of character otherthan evidence of honesty or veracity or their opposites, but does allow evidence offelony convictions under some circumstances. Limits evidence of sexual conduct ofplaintiff in a sexual harassment, sexual assault, or sexual battery case.
800–805 Deals with opinion testimony of nonexperts and experts; generally allows expertsto give opinion if it is within the area of their expertise and limits areas in whichnonexperts may give opinion.
900–1070 Deals with the various evidentiary privileges (i.e., doctor/patient, attorney/client, etc.)and includes right not to disclose trade secrets (§§ 1060–1063).
1100–1107 Deals with evidence of character, habit, or custom; generally prohibits use of characterto prove conduct on a specific occasion, but does allow admissibility of habit orcustom.
1106 In civil actions for sexual harassment, assault, or battery, generally prohibits opinionevidence, reputation evidence, or evidence of specific instances of plaintiff’s sexualconduct.
1115–1128 Anything said or any document prepared for use in a mediation proceeding isinadmissible and not subject to discovery.
1151 Prohibits evidence of subsequent remedial actions (i.e. repairs) in negligence cases.
1152 Prohibits evidence dealing with offers to compromise.
1155 Evidence of liability insurance is not admissible.
1156–1157.7 Deals with special rules regarding health care practitioners and provides that hospitalmorbidity or mortality studies are subject to discovery but are not admissible at trial;also provides that proceedings and records of certain health care professional reviewcommittees are not subject to discovery.
1200–1350 Deals with the hearsay rule and the various exceptions; similar to federal rules.
1400–1454 Deals with authentication of written documents and is similar to federal rules.
1500–1511 Sections dealing with the best evidence rule have been repealed.
1520–1523 Adopts a Secondary Evidence Rule to replace the best evidence rule; allows copiesof writings to be used unless a genuine dispute regarding material terms exists andjustice requires original or admission of copy would be unfair; limits use of oraltestimony to prove content of writing.
1560 Deals with production of business records; sets out guidelines for admissibility oforiginals and copies and sets witness and copying fees.
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CHAPTER 5 THE INITIAL PLEADINGS
■ Complaints in state court must include a statement of facts that constitute a cause of action.
■ The Judicial Council has approved complaint forms for optional use in some cases.
■ Service of process is regulated by CCP §§ 413.10–417.40.
■ Amendments to complaints are liberally allowed.
■ Review these bookmarked sites before drafting pleadings:
California Rules of Court www.courtinfo.ca.gov/rules/Judicial Council Forms www.courtinfo.ca.gov/forms/
KEY POINTS
INITIAL PLEADINGS
Pleadings in California Federal CourtsBefore drafting any pleadings for the district courts in
California, review the local rules of the district court. Pur-suant to those rules, the general format for papers filed inall district courts in California is similar to the format re-quirements in state courts.
Pleadings in General—State CourtsThe content and format of the various pleadings in Cali-
fornia are governed by the Code of Civil Procedure (herein-after referred to as CCP), particularly sections 420–475, andRules 201 (for superior court) and 501 (for municipal court)of the California Rules of Court (hereinafter referred to asRules). Local rules of court and case law also control. Per-missible pleadings in California include the complaint, de-murrer, answer, and cross-complaint (CCP § 422.10).
The physical appearance of all papers filed in Californiacourts is described in Rules 201 and 501 of the Rules ofCourt. These rules require that all pleadings (as well as otherpapers filed in court) be typewritten or printed on 81⁄2 × 11inch paper. Only one side of the paper should be used andthe lines one and one-half or double-spaced. The lines arealso to be numbered consecutively. Paper meeting these re-quirements is usually referred to as pleading paper. Pagesin the pleadings should be numbered consecutively at thebottom and should be firmly bound together at the top. Belowthe page number, all papers must contain a footer describ-ing the nature of the document (see Figure 5-1). State Rulesalso require that two holes be punched at the top of the pa-per and that recycled paper be used.
In addition to the traditional pleadings prepared by law-yers, for some types of actions, alternative pleading formshave been approved by the Judicial Council. These includeforms for complaints, cross-complaints, and answers in ac-tions based on various tort, contract, and unlawful detaineractions. The use of the pleading forms is optional.
The ComplaintA complaint filed in a California court is usually required
to state facts that support each element of a cause of action.According to CCP § 425.10, these facts are to be stated in“ordinary and concise language.” A complaint must also containa demand for judgment for the relief claimed. If the reliefclaimed is money damages, the amount requested should bestated in the complaint unless the action is for damages forpersonal injury or wrongful death filed in the superior court.In such a case, the amount requested is not specified. How-ever, the body of the complaint as well as the prayer shouldstate that the amount requested is in excess of the minimumjurisdictional limit of the court (CCP § 425.10).
PARTIES TO THE LAWSUIT
Real Parties in InterestSections 367–369 of the Code of Civil Procedure deal
with real parties in interest in California. These sections aresimilar to Rule 17a of the Federal Rules of Civil Procedure.
Minors and IncompetentsA minor (anyone under age eighteen) or an incompetent
person must usually appear in a lawsuit either by a generalguardian, a conservator or a guardian ad litem (CCP § 372).The procedure for the appointment of a guardian ad litem isalso set forth in the code (CCP § 373). If the petition for theguardian ad litem is made for a minor and that minor isfourteen years or older, the minor must sign the petition. Ifthe child is under fourteen years, the petition is signed by arelative or friend. If the plaintiff in the action is a minor, theappointment of the guardian ad litem must be made beforethe summons is issued.
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Figure 5-1 Complaint for Damages
Timothy LionAttorney at LawState Bar No. 11111113 North Second St.San Jose, California, 95110(408) 555-1212Attorney for Plaintiff
IN THE SUPERIOR COURT OF CALIFORNIACOUNTY OF SANTA CLARA
REBECCA CALLEY, )) No.
Plaintiff )) COMPLAINT FOR DAMAGES FOR
vs. ) PERSONAL INJURIES AND) PROPERTY DAMAGE
DAVID DORIAN, MERCHANT’S )FURNITURE CO., a )corporation, and DOES ONE )through FIVE )
)Defendants. )
Plaintiff alleges against defendants and each of them as follows:
1. The true names and capacities of all defendants named herein as Does are unknown to plaintiff,
and are sued by such fictitious names pursuant to section 474 of the California Code of Civil Procedure.
2. Plaintiff is informed and believes and thereupon alleges that defendant Merchant’s Furniture
Co. was and is a corporation organized and existing under the laws of the State of California.
3. Plaintiff is informed and believes and thereupon alleges that defendants and each of them are
residents of Santa Clara County, State of California.
4. Plaintiff is informed and believes and thereupon alleges that at all times herein mentioned each
defendant was the agent and employee of each and every other defendant and at all times was acting
within the course and scope of said agency and employment.
continued
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1Complaint for Damages
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5. At all times mentioned herein, defendants Merchant’s Furniture Co. and Does One through
Five were and now are, the owner of a Toyota truck, California license 123 ABC. At all times mentioned
herein, defendant David Dorion was the driver and operator of said vehicle and was operating said vehicle
with the knowledge and consent of each and every other defendant.
6. At all times mentioned herein, Santa Clara Street is a public road located in the City of San
Jose, County of Santa Clara.
7. On or about May 1, 2000, plaintiff was operating a motor vehicle on Santa Clara Street in a
general northerly direction. At that time and place, defendants, and each of them, negligently, carelessly
and recklessly entrusted, managed, maintained, and drove the above-described motor vehicle of defendant
on Santa Clara Street also in a general northerly direction so as to proximately cause it to collide with
plaintiff’s automobile and to proximately cause the injuries and damages described below.
8. As a direct and proximate cause of defendant’s negligence and the resulting collision, plaintiff
was injured in her health, strength and activity, sustaining injury to her body, consisting of, but not
limited to, severe injuries, bruises, contusions, strain to all of the muscles of her body, and shock and
injury to her nervous system and person, all of which injuries have caused, and continue to cause plaintiff
great physical, mental and nervous pain and suffering, all to plaintiff’s general damage in an amount in
excess of $25,000.
9. As a further direct and proximate result of the negligence of defendant, plaintiff was required
to, and did employ physicians and surgeons for medical examination and treatment and incurred medical
and hospital expenses. Plaintiff will be obliged to incur further medical and hospital expenses in an amount
presently unknown.
10. As a further direct and proximate result of the negligence of defendants, plaintiff was prevented
and continues to be prevented from attending to her usual occupation and has sustained and continues
to sustain a loss of earnings and earning power.
11. As a further and direct and proximate result of the negligence of defendants, plaintiff has sustained
damage to her property and has been denied the use and enjoyment of her automobile in an amount
not as yet ascertained.
Figure 5-1 Complaint for Damages (continued)
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2Complaint for Damages
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WHEREFORE, plaintiff prays for judgment against defendants and each of them as follows:
1. General damages in an amount in excess of $25,000.
2. Special damages according to proof;
3. Costs of suit;
4. Such other and further relief as the court deems just and proper.
Dated: August 1, 2000
By _____________________________TIMOTHY LIONAttorney for Plaintiff
VERIFICATION
STATE OF CALIFORNIA, COUNTY OF SANTA CLARA
I have read the foregoing Complaint for Damages and know its contents.
I am a party to this action. The matters stated in it are true of my own knowledge except as to those
matters which are stated on information and belief, and as to those matters I believe them to be true.
Executed on August 1, 2000, at San Jose, California.
I declare under penalty of perjury under the laws of the state of California that the foregoing is true
and correct.
Rebecca Calley
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3Complaint for Damages
Figure 5-1 Complaint for Damages (continued)
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Partnerships and Unincorporated AssociationsIn California, a partnership or other unincorporated as-
sociation can sue or be sued in the name of the business orin the name of the individual members. If the individualmembers are not named and served, however, then any judgmentcan only be enforced against business assets. If they are namedand served, they are personally liable (CCP § 369.5; seealso Calif. Corp. Code § 16301 et seq.).
Special Problems with PartiesIf a party does business under a fictitious name in Cali-
fornia, that party is required to file a fictitious name state-ment with the county clerk. The failure of a plaintiff in alawsuit to do so can be raised as a defense in an action basedon contract. It does not affect lawsuits for other types ofmatters. However, this failure can be cured by the party fil-ing a fictitious name statement at any time, even after a com-plaint has been filed. If a plaintiff in a lawsuit based oncontract does business under a fictitious name, compliancewith the fictitious name laws should be alleged in the com-plaint to avoid problems.
Fictitious DefendantsThe use of fictitiously named defendants, or Does, is
authorized by CCP § 474 and is common in California ac-tions. There is no limit to the number of Does who may bejoined and the number often depends on the complexity ofthe case and the number of named defendants. The term Doecan be used to refer to an individual, partnership, corpora-tion or other business form. It is not necessary to specifythe capacity. However, it is necessary to state a cause ofaction against all fictitiously named defendants.
Joinder of Multiple PartiesPermissive joinder of plaintiffs in a California action is
controlled by CCP § 378 and permissive joinder of defen-dants by CCP § 379. Compulsory joinder of plaintiffs anddefendants is controlled by CCP § 389. The rules are similarto the federal rules of permissive and compulsory joinder.
InterpleaderInterpleader in California is governed by CCP § 386.
PLEADING JURISDICTION AND VENUEUnlike complaints filed in federal court, a complaint filed
in a state court action need not contain an express para-graph addressing jurisdiction or venue. However, properjurisdiction and venue of the court should be evident fromthe various allegations that do appear.
PLEADING THE CLAIM OR CAUSE OFACTION
California is primarily known as a code pleading state. Inmost cases, a complaint must contain a clear and concise state-ment of facts that support the elements of a cause of action.Since each element of the cause of action must be supportedby factual allegations, a claim for negligence filed in a statecourt would probably be more detailed and specific than thatfound in the text. A typical complaint for personal injuriesbased on the defendant’s negligence in operating a motor vehicleis found in Figure 5-1 at the end of this chapter.
Common CountsAn exception to the method of fact pleading exists for
types of actions known as common counts. Common counts,which stem from early English pleading, refer to actionswhere the plaintiff requests money damages arising fromsome very generally stated contractual obligation. The con-tract may be oral or written, express or implied. In a com-mon count, the plaintiff does not plead ultimate facts, butrather legal conclusions. The key element of a claim basedon a common count is that the defendant is indebted to theplaintiff for some reason. The reason is very generally stated(.e.g., services rendered, goods delivered, money loaned).It is not necessary to plead the details of the contract orother facts necessary to support a cause of action for breachof contract, restitution, or other contractual relief. The stat-ute of limitations for a common count, however, does de-pend on whether the underlying contract was written or oral.In the case of a written contract, the statute of limitations isfour years. In the case of an oral contract, the time is twoyears. Common counts are often used as an alternative wayof pleading contractual obligation. A common count mayform the basis of the entire complaint or it may constituteone cause of action in a complaint stating multiple causesof action. A Judicial Council form exists for common counts.
DEMAND FOR RELIEF
Money DamagesThe general measure of money damages is set forth in
sections 3281–3360 of the California Civil Code, which providethat in most cases damages are to be compensatory, ratherthan punitive, in nature.
Limitations on DamagesIf the action is one for medical malpractice, section 3333.2
of the Civil Code limits the amount of money that may beawarded for noneconomic losses (sometimes referred to asgeneral damages). Noneconomic damages include such itemsas pain, suffering, inconvenience, physical impairment, anddisfigurement. A plaintiff may not recover more than $250,000for such losses. The amount recoverable for economic orpecuniary loss (actual expenses) is not limited. Damagesare also limited by statute in California where a plaintiff
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committed a felony that somehow contributed to the inju-ries forming the basis of the lawsuit or where plaintiff issuing for damages, resulted from an automobile accidentand plaintiff was either drunk at the time or uninsured (Civ.Code §§ 3333.3 and 3333.4).
Personal Injury Cases—Superior CourtAs mentioned previously, in an action for compensatory
or punitive damages for personal injuries or wrongful death,the specific amount requested is not expressly stated in acomplaint filed in superior court. However, the amount claimedwill probably have to be furnished at a later date. If the de-fendant wants to know what damages are being claimed,the defendant files and serves a request for statement ofdamages. The plaintiff must respond to this request withinfifteen days with a written statement describing the natureand extent of the damages that are claimed (CCP § 425.11).If the defendant does not request a statement of damages,the plaintiff must nevertheless file one sixty days prior totrial. In the event that the defendant defaults, a statement ofdamages must be filed before the default is entered.
Punitive DamagesWhile compensatory damages are allowed in all cases
for money damages, punitive damages are only allowed underspecial circumstances. Generally section 3294 of the CivilCode provides the basis for an award of punitive damages.Punitive damages are allowed in noncontract cases wherethe defendant is guilty of oppression, fraud, or malice.
Attorney FeesAttorney fees are allowed when specifically provided for
by statute, or when the parties have a contract that containsa provision allowing attorney fees (Civil Code § 1717). At-torney fees are usually claimed as an item of costs of suitafter the matter has been tried. However, if a contract pro-vides for attorney fees, that fact should be alleged in thecomplaint.
Provisional RemediesProvisional remedies in California are covered primarily
in CCP § 527 et seq. The procedures in California, similarto those in the federal rules, allow for a temporary restrain-ing order and a preliminary injunction.
DRAFTING THE COMPLAINTTechnical requirements for a complaint are found prima-
rily in the California Rules of Court, Rules 201 for superiorcourt; and 501 for municipal court and limited civil cases.The two rules are similar. A complaint must meet the gen-eral requirements for all papers presented to the court forfiling. As mentioned above, this means the complaint is type-written or printed on 81⁄2 × 11 inch pleading paper. The for-
mat for the first page is also set forth (Rule 201c). Startingwith line 1, to the left of the page, the name, Californiastate bar number, office address, and telephone number ofthe attorney appears. Following the name and address is usuallya statement showing whom the attorney represents. On orbelow line 8, the title of the court appears. Below the titleof the court, the left of the center, appears the title of thecase. To the right of and opposite the title is a space for thenumber of the case and the nature of the document. Thepage number must appear at the bottom of the page and belowthat, a footer describing the nature of the document (e.g.,Complaint) (see Figure 5-1).
In drafting a complaint for filing in a California court,other than for a common count, you must be careful to al-lege facts that support each element of the cause of action.Form books written for practice in the California courts shouldbe consulted.
A complaint in California may contain any number ofcauses of action, each of which should be separated andnumbered (e.g., First Cause of Action, Second Cause of Action).After the causes of action have been stated, the prayer ap-pears, followed by the date and signature of the attorney.Since the attorney’s address and phone appeared on the firstpage, it does not follow the signature.
VerificationA verification is a statement under penalty of perjury that
the contents of a document are true and correct. In Califor-nia, a few types of complaints are required to be verified,such as quiet title actions and unlawful detainer actions. Evenwhen a verification is not required, however, an attorneycan always choose to verify it. The result is that generallythe defendant must verify the answer and cannot use a “generaldenial” format for the answer (see Chapter 6). The verifica-tion is usually signed by the plaintiff rather than the attor-ney, although in some cases, the attorney is allowed to doso. If the party is absent from the county in which the attor-ney has his or her office or for some other reason is unableto sign the verification, the attorney is allowed to do so (CCP§ 446). Where the party to verify is a corporation, any of-ficer may sign the verification. Review Figure 5-1 for anexample of a verified complaint.
Judicial Council FormsJudicial Council Forms have been developed and approved
for the various actions based on tort, contract, and unlawfuldetainer disputes. The following forms are available:
Complaint—Personal Injury, Property Damage, WrongfulDeath
Cause of Action—Motor VehicleCause of Action—Premises LiabilityCause of Action—Products LiabilityCause of Action—General NegligenceCause of Action—Intentional TortExemplary Damage Attachment
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Complaint—ContractCause of Action—Breach of ContractCause of Action—FraudCause of Action—Common Counts
Complaint—Unlawful Detainer
(Special forms also exist for family law matters.)
The Judicial Council forms are organized somewhat dif-ferently from a standard complaint. The initial pages of thecomplaint forms contain standard, general allegations, in-cluding those relating to status, capacity, and venue. Theyalso contain allegations regarding damages as well as theprayer. These initial pages are then followed by the specificcauses of action. Of course, only those causes of action whichapply to the facts are attached. See Figure 5-2.
Using the FormsThe Judicial Council forms are generally used by filling
in the blanks and checking the appropriate boxes. Some-times, however, the forms do not provide sufficient spacefor the allegations needed. In such a case, the allegationsare typed on a separate piece of paper and attached. In somecases, plaintiff may have various causes of action, some forwhich a Judicial Council form exists and others for which aform does not exist. In such a case, the plaintiff has twochoices. The plaintiff can avoid using the forms and pre-pare the entire complaint with using any forms or, underRule of Court 982.1, can attach a typed cause of action tothe Judicial Council form. In such an event, each paragraphin the cause of action should be numbered and each para-graph number should be preceded with one or more identi-fying letters derived from the title of the cause of action.For example, the paragraphs for a cause of action for medi-cal malpractice might be numbered MM-1, MM-2, etc.
When multiple parties are involved in an action, normallythe complaint would contain one set of initial pages, listingall parties in the caption and referring to all parties in theappropriate allegations. However, if the plaintiffs have separatecauses of action, then separate cause of action forms shouldbe attached. In some cases the same cause of action form,with different names inserted, may be used more than once.Several software programs that generate completed JudicialCouncil forms are now available.
A civil cover sheet (a Judicial Council form) is requiredto be attached to the complaint. (See Figure 5-3)
FILING THE COMPLAINTFax filings are permitted by California law. The Califor-
nia Rules of Court, Rules 2001–2009 set forth the proce-dures to be followed. Documents can be filed by fax eitherdirectly with a court (if local rules permit) or through a faxfiling agency, which then physically transmits the documentto the court and pays the applicable filing fee. If a paper isfared directly to the court, it must be accompanied by a Ju-dicial Council Facsimile Filing Cover Sheet. Payment of filingfees can be by Visa or Mastercard or the court might allow
the attorney to set up a special account. An additional fee of$1 per page must also be paid. Any party who files or servesa faxed document represents that the original signed docu-ment is in his or her possession or control and must pro-duce the original if it is demanded. Notwithstanding this, asignature produced by facsimile transmission is consideredan original.
THE SUMMONSThe summons for a general civil case is a Judicial Coun-
cil Form. See Figure 5-4. A separate form exists for unlaw-ful detainer actions because the time to respond to the complaintis different (five days instead of the normal thirty). A sepa-rate summons was also adopted for joint debtor actions.
SERVICE OF THE COMPLAINTThe rules regarding service of process are found in CCP
§§ 413.10–417.40. A summons may be served by any per-son who is at least eighteen years of age and not a party tothe action. The documents served include a copy of the sum-mons and a copy of the complaint. Local rules of court mayrequire the other documents be served, for example, copiesof the local rules regarding fast track.
The methods of service upon a defendant located withinthe state include personal service, substituted service, ser-vice by mail, and publication.
Personal ServicePersonal Service involves personally delivering a copy
of the summons and complaint to the defendant. Service isdeemed completed when the copies are delivered. (The timeto respond to a complaint starts to run when service is deemedcompleted. See Chapter 6.)
Substituted ServiceSubstituted service can be used in lieu of personal ser-
vice under certain conditions. If the person to be served isan individual and diligent attempts at personal service havebeen unsuccessfully made, substituted service can be effected.Substituted service involves leaving a copy of the summonsand complaint at the person’s residence with a competentmember of the household (over age eighteen) or at thedefendant’s workplace with a person apparently in charge.In addition, a second copy of the summons and complaintmust be mailed, first class postage prepaid, to the person tobe served at the place where a copy of the summons andcomplaint were left.
If the defendant is a corporation or unincorporated asso-ciation or a public entity, substituted service can be used ifservice is made at the office of the defendant during normalworking hours. Diligent attempts at personal service are notnecessary.
When substituted service is used, it is not deemed com-pleted until ten days after mailing.
SAMPLE
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Figure 5-2 Judicial Council For Complaint
continued
SAMPLE
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Figure 5-2 Judicial Council Form Complaint (continued)
continued
SAMPLE
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Figure 5-2 Judicial Council Form Complaint (continued)
continued
SAMPLE
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Figure 5-2 Judicial Council Form Complaint (continued)
SAMPLE
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Figure 5-3 Civil Cover Sheet
SAMPLE
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Figure 5-4 Summons and Proof of Service
continued
SAMPLE
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Figure 5-4 Summons and Proof of Service (continued)
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Service by MailService by mail involves mailing a copy of the summons
and complaint to the defendant first class mail or airmail,postage prepaid. Along with the summons and complaintthe following documents must be sent to the defendant:
1. two copies of a Judicial Council form known as noticeand acknowledgment of receipt;
2. A return envelope, postage prepaid, addressed to thesender.
The individual being served must then sign and return acopy of the notice and acknowledgment in the envelope providedwithin twenty days. If the individual fails to do so, serviceis not effected and the defendant must be served in anotherway. The defendant does become liable for expense of fur-ther service. If the defendant does return the notice and ac-knowledgment, service is deemed completed on the date thewritten acknowledgment of receipt of summons is executed(CCP § 415.30).
Service by PublicationIf the defendant cannot be served in another manner ser-
vice can be made by publication. A prior court order is re-quired (CCP § 415.50).
Service on a Person Outside the StateIn addition to the methods listed above, a defendant lo-
cated outside the state of California can be served by mailrequiring a return receipt (CCP § 415.40).
Service on a BusinessThe manner of service on a business depends on the type
of business involved. A corporation can be served by serv-ing the agent for service of process named with the secre-tary of state, or an officer or general manager of the corporation(CCP § 416.10). If the business is a general or limited part-nership, the service can be made on any general partner orthe agent for service of process, if one has been appointed(CCP § 416.40).
Proof of ServiceProof of service is made on a Judicial Council form (see
Figure 5-4).
Time for ServiceService of the complaint and summons should be made
as soon as possible. If the case comes under fast track, localrules of court can establish a time for service not less thansixty days after the complaint is filed (Govt. Code § 68616).If the complaint and summons are not serviced within twoyears of the filing, the court has the discretion to dismissthe case (CCP § 583.420). If the complaint and summonsare not served within three years of the filing date, the ac-tion must be dismissed (CCP § 583.210).
AMENDING THE COMPLAINTA complaint can be amended once as a matter of course,
before an answer or demurrer filed. Otherwise the plaintiffneeds a stipulation or court order. Amendments are to beliberally allowed (CCP §§ 472–474).
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CHAPTER 6 RESPONSES TO THE INITIAL PLEADING
■ A response to a general civil complaint is due thirty days from date service completed.
■ Responses to a complaint include answers, demurrers, motions and cross-complaints.
■ Judicial Council forms are approved for some kinds of answers.
■ Claims brought by a defendant against a plaintiff, co-defendant or third party are all known asa cross-complaint.
KEY POINTS
RESPONDING TO THE INITIAL PLEADING
Time LimitsFor most civil cases in California, a defendant has thirty
days from the date that service is deemed completed in whichto respond to the complaint (CCP § 412.20). The most no-table exception is for unlawful detainer actions, where thetime to respond is five days (CCP § 1167).
Be sure to review local rules of the United States districtcourts if responding to a complaint filed in federal court.Local courts can change the twenty-day limit found in theFederal Rules of Civil Procedure.
Stipulations Extending TimeIn California, a stipulation enlarging time is usually re-
ferred to as a stipulation extending time. If the case doesnot come under fast track rules, the attorneys are given widelatitude in extending the normal time requirements and nor-mally such extensions do not require court approval. In mostcases, a letter between the attorneys confirming their agree-ment is sufficient. If the case does come under the fast trackrules, this changes. The rules generally allow parties to stipulateto a fifteen-day extension, but local rules could require courtpermission for any additional time (Govt. Code § 68616).
THE ANSWERAnswers are specifically covered in sections 431.10–431.70
of the Code of Civil Procedure. The use of the answer instate court is similar to that in federal court. One major dif-ference does exist, however, in that in California an answercannot be used to challenge personal jurisdiction. Such achallenge must be made by a special appearance, usually amotion to quash service of summons. Filing an answer isdeemed a general appearance and is construed to be a waiverof any defect in personal jurisdiction.
Furthermore, while the answer may raise questions re-lating to subject matter jurisdiction, it is not the normalmethod of raising this type of objection or defense. A de-murrer is more commonly used.
General DenialA general denial can be used in California whenever the
complaint has not been verified, or if the amount claimed isunder $1,000 even if the complaint is verified (CCP §§ 431.30and 431.40). In other cases, a specific denial should be used.Whichever format is used, the answer should also includeany affirmative defenses that may apply.
DRAFTING THE ANSWERThe Judicial Council has approved various answer forms,
including general denials and specific denials for tort, con-tract and unlawful detainer cases. The use of these forms,like the complaints, is optional. Where the form is not used,the format of the answer is controlled by Rules 201 and 501of the California Rules of Court and by CCP § 431.30. Thebasic style and format of the answer is the same as that ofthe complaint. It is prepared on pleading paper with the name,California state bar number, address, and telephone numberof the attorney filing the pleading appearing at the top lefthand of the first page. The caption is similar to that on thecomplaint. (The code does allow the parties to abbreviatenames on all documents other than the complaint. The firstparty on each side is required to be named with an indica-tion that there are other parties. The abbreviation et al. iscommonly used.) Pages are numbered and a footer describ-ing the document appears at the bottom.
Generally, the various paragraphs used in the specific denialappearing in the text are also found in answers filed in statecourt. When denying an allegation on information and be-lief, or lack of information and belief, the matter should beexpressly denied.
SubscriptionThe answer, like the complaint, is normally signed by
the attorney. Since the attorney’s address and telephonenumber appear on the first page, they need not follow thesignature. If the complaint is verified, the answer must bealso be verified. This is usually done by the defendant ratherthan the attorney.
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Judicial Council FormsLike the Judicial Council form complaints, the answer
forms are filled out by filling in the blanks and checkingthe appropriate boxes. A copy of the form for tort cases isincluded at the end of this chapter (see Figure 6-1).
Service and FilingA copy of the answer is normally served on the attorney
for the plaintiff by first class mail, although it can be per-sonally served. If the parties have agreed in writing, servicemay also be by fax (Calif. Rule of Court, Rule 2008). If theanswer is served by mail, then service is evidenced by aproof of service by mail (see Figure 6-2). If the papers areserved by fax, then the proof of service must conform to therequirements of California Rule of Court, Rule 2008. Thisrule requires that the proof of service by fax contain thetime, date, and sending fax number, name and fax numberof person served, and a statement that the transmission re-ported completed and without error. A copy of the trans-mission report should be attached. The original answer, withthe proof of service attached, and accompanied by the ap-propriate filing fee is filed in the court.
AmendingCalifornia has liberal rules allowing amendments to all
pleadings, However, in most cases, an amendment to theanswer requires either a stipulation from the other partiesor a court order (CCP §§ 472 and 473).
Request for Statement of DamagesIf a defendant is served with a complaint for damages
for personal injuries and the amount of damages is not stated,the defendant can request that the plaintiff provide this in-formation. This is done in a document entitled a request forstatement of damages and will often be prepared and servedwith the answer. The plaintiff has fifteen days in which torespond (CCP § 425.11).
COUNTERCLAIMS, CROSS-CLAIMS, ANDTHIRD-PARTY COMPLAINTS
In California claims by a defendant against a plaintiff,ace-defendant, or a third party are all asserted in a pleadingcalled a cross-complaint. Unlike the federal counterclaim,a cross-complaint is never part of the answer, even whenfiled against a plaintiff. It is always a separate pleading andresembles the federal third-party complaint (CCP § 428.10).A defendant filing a cross-complaint is usually referred toas a cross-complainant. The person against whom it is filedis called the cross-defendant. Like its federal counterparts,a cross-complaint can be permissive or compulsory. A cross-complaint is allowed (permissive) in the following situa-tions (CCP § 428.10):
1. Cross-complaint is against the plaintiff who filed thecomplaint against the defendant cross-complaining;
2. Cross-complaint is against anyone if the cause of ac-tion in the cross-complaint arises:
a. out of the same transaction or occurrence allegedin the complaint; or
b. in relationship to property or the controversy thatis the subject of the complaint.
A cross-complaint is generally compulsory if the causeof action names the plaintiff as a cross-defendant and theclaim arises out of the same situation as alleged in the com-plaint. (Various exceptions to this rule are found in CCP §§426.30, 426.40 and 426.6.)
Drafting the Cross-ComplaintAside from the caption, a cross-complaint resembles a
complaint. The first page must conform to Rules 201 or 501of the Rules of Court. The caption, however, is somewhatdifferent since it reflects the addition of the new action. SeeFigure 6-3 for an example of a caption in a cross-complaint.Judicial Council forms are approved for some cross-com-plaints (see Figure 6-4).
Service and FilingIf the cross-complaint is filed against a named plaintiff,
it may be filed with the answer as a matter of right. Afterthe answer has been filed, a court order (obtained by stipu-lation or motion) is required. If the cross-complaint is filedagainst a co-defendant or third party, then as a matter ofright it can be done at any time prior to the case being setfor trial. After a date has been set for trial a court order isneeded (CCP § 428.50). If a cross-complaint brings in athird party, a new summons on the cross-complaint shouldbe issued with the filing of the cross-complaint. The Judi-cial Council form summons can be adapted for this.
Cross-complaints can be served by mail on the attorneyfor the party to be served, if that party has already appearedin the action (i.e., filed a complaint or answer). If a cross-defendant has not previously appeared in the action, thatparty must be served in the same manner as the complaintis served (see Chapter 5).
Responding to a Cross-ComplaintA cross-defendant who is served with a cross-complaint
must respond in the same way that a defendant responds toa complaint. That is, within thirty days of service the de-fendant must file an answer, demurrer, or appropriate mo-tion. Failure to do so can result in a default on thecross-complaint. Additional cross-complaints may also befiled.
SAMPLE
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Figure 6-1 Judicial Council Form Answer
continued
SAMPLE
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Figure 6-1 Judicial Council Form Answer (continued)
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Figure 6-2 Proof of Service by Mail
PROOF OF SERVICE BY MAIL
STATE OF CALIFORNIA, COUNTY OF SACRAMENTO
I, Rebecca Hanchett, declare as follows:
I am over eighteen years of age and not a party to the within action; my business address is 15Plaza de Oro, Sacramento, California; I am employed in Sacramento County, California.
____ I am readily familiar with my employer’s practices for collection and processing of correspondencefor mailing with the U.S. Postal Service.
On April 10, 2000, I served a copy, with all exhibits, of the following documents:
ANSWER TO COMPLAINT FOR DAMAGES
on the interested parties in case No. 12345 by:
____ following ordinary business practices and placing for collection and mailing at 15 Plaza De Oro,Sacramento, California, on April 10, 2000, a true copy of the above referenced documents, enclosedin a sealed envelope; in the ordinary course of business, the above documents would have beendeposited for first-class delivery with the United States Postal Service the same day they were placedfor deposit, with postage thereon fully prepaid.
____ placing a true copy of the above-referenced documents enclosed in a sealed envelope, with postagefully prepaid, in the United States mail at Sacramento, California. addressed as follows:
TERRY ALVAREZALVAREZ & COE100 Market StreetSan Francisco, California 94101
I declare under penalty of perjury under the laws of the State of California that the foregoing istrue and correct and that declaration was executed on April 10, 2000, in Sacramento, California.
Rebecca Hanchett _______________________________________________________
X
X
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Figure 6-3 Caption—Cross-complaint
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TAYLOR MARTINCalif. State Bar No. 1234515 Plaza de OroSacramento, California(916) 555-1212
Attomey for Defendant and Cross-Complainant,Linda Granger
IN THE SUPERIOR COURT OF CALIFORNIACOUNTY OF SAN FRANCISCO
GORDON SHEFFIELD and AMY ) Civil No.1245SHEFFIELD, )
Plaintiffs ) CROSS-COMPLAINT))))
WESLEY LINSTROM, LINDA )GRANGER, and DOES I-V, )
Defendants ))
LINDA GRANGER, )Cross-complainant )
)v. )
)BRAKEFAST, Inc., and DOES I-V, )
Cross-defendants. ))
SAMPLE
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Figure 6-4 Judicial Council Form Cross-complaint
continued
SAMPLE
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Figure 6-4 Judicial Council Form Cross-complaint (continued)
continued
SAMPLE
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Figure 6-4 Judicial Council Form Cross-complaint (continued)
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AmendingCross-complaints are amended in much the same way as
other pleadings (CCP §§ 472 and 473).
LEGAL CHALLENGES TO THE COMPLAINT
MotionsMotions filed in response to a complaint include a mo-
tion to quash service of summons, a motion to dismiss, anda motion to strike. A motion to quash service of summonsis used primarily to attack personal jurisdiction, although itcan be used to attack the method of service itself (CCP §418.10). A motion to dismiss is used to request that a par-ticular court dismiss the matter on the ground that it is aninconvenient forum (CCP § 418.10). A motion to strike isused when the defendant is requesting that all or part of thecomplaint be stricken because it contains false, irrelevant,or improper matter, or the pleading is not drawn or filed inconformity with the laws of the state, or state or local courtrules (CCP § 435).
DemurrersThe most common method of attacking the legal suffi-
ciency of a complaint (or cross-complaint) is by demurringto the complaint. A demurrer is a type of pleading, althoughit closely resembles a motion in format and procedure (CCP§ 430.10). The grounds for demurring to a complaint are:
1. The court has no jurisdiction over the subject matter;2. The person who filed the pleading lacks legal capacity
to sue;3. There is another action pending between the same par-
ties on the same cause of action;4. There is a defect or misjoinder of parties;5. The pleading does not state facts sufficient to consti-
tute a cause of action;6. The complaint is uncertain, ambiguous, or unintelli-
gible;7. In an action founded upon a contract, it cannot be as-
certained from the pleading whether the contract is writtenis oral or is implied in conduct;
8. No certificate of merit was filed as required under CCP§§ 411.35 and 411.36.
A demurrer is proper only when a defect is apparent fromthe complaint itself, or from facts over which the court maytake judicial notice. Judicial notice means that the court willassume some facts are true without the parties proving it. Thisusually includes facts that are common knowledge or theexistence of documents that are public records. (If these ob-jections are not apparent from the complaint or after judi-cial notice, they should be raised in the answer.) A demurrermay be used to challenge the entire complaint, or selectedcauses of action within the complaint. Like an answer, ademurrer must be filed and served within thirty days of thedate of service of the complaint. If a demurrer is not directedto all causes of action in the complaint, an answer to the
remaining causes of action is not required until after theruling on the demurrer.
When a party demurs to a complaint, a court hearing musttake place to determine the validity of the challenge. Twenty-one days’ prior notice of the hearing must be given (Rule325 and CCP § 1005). The hearing is set in the same waythat a motion is set for hearing. (Refer to Chapter 7.)
Prior to the hearing the other party can file papers op-posing the demurrer. Usually the opposition consists of amemorandum of points and authorities in opposition to thedemurrer. This should be done at least ten days before thehearing. Reply papers should be filed and served five daysbefore the hearing.
At the hearing, the judge will decide whether to sustainthe demurrer (agree with the challenge) or overrule the de-murrer (decide that the complaint is legally sufficient). If ajudge sustains the demurrer, this is done either with leaveto amend or without leave to amend. If the problem withthe complaint is something that can be corrected with properpleading, the judge will give the plaintiff the opportunity toamend the complaint and correct the defect. If the problemis something that cannot be corrected (i.e., the court lackssubject matter jurisdiction), then the demurrer is sustainedwithout leave to amend. If the demurrer is to the entire com-plaint, the result is that the case is dismissed, although suchan order would be appealable.
Drafting the DemurrerThe content and format for a demurrer is described in
section 430.50 of the Code of Civil Procedure and Rules312 and 325 of the California Rules of Court. Since a de-murrer is a pleading, it must conform to the technical re-quirements of all pleadings. Furthermore, the Rules providethat on the first page, immediately below the court number,the name of the party filing the demurrer and the name ofthe party whose pleading is the subject of the demur shouldalso appear. Within the demurrer, each ground shall be statedin a separate paragraph and state whether it applies to theentire complaint, cross-complaint, or answer or to specifiedcauses of actions. The demurrer must also be accompaniedby a notice of hearing on the demurrer, specifying the date,time, and place of the hearing, and a memorandum of pointsand authorities. See Figure 6-5 for an example of a demur-rer and notice of hearing on the demurrer.
FAILURE TO ANSWERDefaults and default judgments in California are controlled
by CCP §§ 585–587.5. The procedure in California resemblesthe federal practice. The plaintiff must petition to have thedefault entered and must also request a judgment on thatdefault. When a party files the request to enter the defaultwith the court, the party must also file the proof of servicefor the complaint so that the court can determine that a faulthas occurred. A Judicial Council form exists that containsthe request to enter the default and the declarations neededto support it. A copy of the request must be served by mail
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Figure 6-5 Demurrer and Notice of Hearing
continued
TAYLOR MARTINCalif. State Bar No. 1234515 Plaza de OroSacramento, California(916) 555-1212
Attorney for Defendant,Linda Granger
IN THE SUPERIOR COURT OF CALIFORNIACOUNTY OF SAN FRANCISCO
GORDON SHEFFIELD and AMY ) Civil No. 12345SHEFFIELD, )
Plaintiffs ) Date: May 15, 2000) Time: 9:30 a.m.) Dept. 13) Judge: Smith)) DEFENDANT’S DEMURRER TO) PLAINTIFFS’ COMPLAINT
v. ) NOTICE OF HEARINGWESLEY LINSTROM, LINDA ) MEMORANDUM OF POINTS ANDGRANGER, and DOES I-V, ) AUTHORITIES
Defendants ) Date Filed: March 15, 2000) Trial Date: None)
Defendant, Linda Granger, demurs to each of the causes of action in the complaint of Gordon Sheffield
and Amy Sheffield on the following grounds:
1. The complaint fails to state facts sufficient to constitute a cause of action.
2. The complaint is uncertain, ambiguous, vague and unintelligible.
Date: April 1,2000 ______________________________________Taylor MartinAttorney for Defendant, Linda Granger
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1Demurrer to Complaint
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2Notice of Hearing on Demurrer
Figure 6-5 Demurrer and Notice of Hearing (continued)
TAYLOR MARTINCalif. State Bar No. 1234515 Plaza de OroSacramento, California(916) 555-1212
Attorney for Defendant,Linda Granger
IN THE SUPERIOR COURT OF CALIFORNIACOUNTY OF SAN FRANCISCO
GORDON SHEFFIELD and AMY ) Civil No. 12345SHEFFIELD, )
Plaintiffs ) Date: May 15, 2000) Time: 9:30 a.m.) Dept. 13) Judge: Smith
v. )) NOTICE OF HEARING ON
WESLEY LINSTROM, LINDA ) DEFENDANT’S DEMURRERGRANGER, and DOES I-V, ) Date Filed: March 15, 2000
Defendants ) Trial Date: None)
PLEASE TAKE NOTICE that the demurrer filed with this notice has been set for hearing on May 15, 2000,
at 9:30 a.m in department 6 of the above-entitled court located at 400 McAllister Street, San Francisco,
CA 94102-4514.
Date: April 1,2000 ______________________________________Taylor MartinAttorney for Defendant, Linda Granger
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on the defendant, if the defendant’s address is known. If theplaintiff is aware of an attorney who represents the defen-dant, that attorney must also be served by mail (even if theattorney has not appeared in the action). If the defendant’saddress is unknown, the application for the default must beaccompanied by an affidavit to that effect (CCP § 587).Additionally, if the complaint did not state the specific amountof damages being claimed, a statement of damages must beserved on the defaulting defendant (CCP § 425.11).
When the court receives the request to enter default andproof of service, it will immediately enter the default. If thecomplaint arises upon a contract or judgment for recoveryof money, the court can immediately enter judgment for theamount demanded in the complaint. In other cases, before ajudgment can be entered, the plaintiff must prove their case,
either by testimony or by affidavit. See Figure 6-6 for a copyof the request to enter default.
Setting Aside DefaultsThe procedure for setting aside defaults is found in CCP
§ 473. The grounds for these motions include mistake, in-advertence, surprise, or excusable neglect. The moving pa-pers must include a copy of an answer or other pleading ormotion proposed to be filed. A motion to set aside a defaultmust be made within a reasonable time of the default, not toexceed six months. Under some circumstances (usually fraud),the court will allow the motion to be made more than sixmonths after the default.
SAMPLE
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Figure 6-6 Request to Enter Default
continued
SAMPLE
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Figure 6-6 Request to Enter Default (continued)
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CHAPTER 7 MOTION PRACTICE
■ Motion practice in California is generally regulated by CCP §§ 1003–1020 and California Rulesof Court, Rules 301–377.
■ Moving papers usually include a notice of hearing, declarations, and a memorandum of pointsand authorities.
■ Fifteen days’ notice of hearings is usually required, but that time is longer if notice is mailed.
■ Always review appropriate code sections and rules of court for motions, because some motionshave special time limits and other unique requirements.
KEY POINTS
MOTIONS GENERALLYMotion practice in state court does not differ significantly
from motion practice in federal court. The general rules af-fecting motion practice in California state courts are foundin sections 1003–1020 of the Code of Civil Procedure andRules 301–377 of the California Rules of Court. Local rulesof court also control. Specific motions are covered in othercode sections and rules.
If you have a motion in federal court in California, alwayscheck local rules of court. Many of the time limits found inthe Federal Rules of Civil Procedure have been changed bylocal rule. Local federal courts may also have special rulesand procedures that must be followed.
Municipal Court/Limited Civil CasesMotion practice in municipal court actions or limited civil
cases, is basically the same as in superior courts (CCP §92). The only limitation involves motions to strike, whichare allowed only on the ground that the claim for damagesor relief is not supported by allegations of the complaint.
PREPARING, SERVING, AND RESPONDINGThe general format for motion papers is the same as that
for pleadings (Rules 201 and 501). Papers filed in supportof or in opposition to a motion are prepared on pleadingpaper and maintain the caption that appears on the plead-ings in the case. Special rules also exist regarding exhibitsto any document. Exhibits must be separated by a sheet ofpaper with a hard paper or plastic tab extending below thebottom of the page and bearing the exhibit designation. (Rule311e) Papers filed in support of a motion usually includethe notice of hearing, declarations, and a memorandum ofpoints and authorities.
Notice of HearingThe notice of hearing contains the same information as
is found in the federal motion and notice of hearing. On thefirst page, immediately below the docket number, the fol-lowing information must appear:
• hearing judge, if known;• nature of document;• title of any attached document;• hearing date, time, and location;• trial date (if set);• date filed.
The opening paragraph of the notice of hearing must alsocontain a description of the nature of the order being soughtand the grounds for issuance. The notice must also describeany papers upon which the motion is based (Rule 311, CCP§ 1010). See Figure 7-1 for an example of a notice of hear-ing in the Overland case, were it in state court.
Affidavits and DeclarationsThe factual basis for a motion can appear in either an
affidavit or a declaration. CCP § 2015.5 allows the declara-tion form to be used whenever an affidavit is required, aslong as the appropriate language is used. The form to befollowed depends on whether the declaration is executed orsigned in California or outside the state. If a declaration isexecuted within the state, the following language can be used:
“I certify (or declare) under penalty of perjury that the fore-going is true and correct.”
____________________ ________________________(Date and Place) (Signature)
If executed at any place, either within or outside the statethe following form can be used:
“I certify (or declare) under penalty of perjury under thelaws of the State of California that the foregoing is true andcorrect.”
____________________ ________________________(Date) (Signature)
The use of the declaration rather than an affidavit elimi-nates the need to appear before a notary or other personauthorized to administer an oath.
A declaration in support of a motion is prepared on pleadingpaper and usually contains the same caption as other papersin the same case. The caption must also include the name of
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1Notice of Motion to Quash
Figure 7-1 Notice of Hearing (Motion)
continued
PAT RIVASAttorney at LawState Bar No. 125433769 Maine St.San Jose, California(408) 555-1212
Attorney for Defendant
IN THE SUPERIOR COURT OF CALIFORNIACOUNTY OF SANTA CLARA
))) Civil No. 123456
JOHN JONES, )Plaintiff, ) DATE: May 1 , 2000
) TIME: 9:30 a.m.) DEPT: 6) JUDGE: Simms)) NOTICE OF MOTION TO QUASH
vs. ) SERVICE OF SUMMONS)) DECLARATION OF OWEN YOUNG)
OVERLAND CORPORATION, ) MEMORANDUM OF POINTS ANDDefendant ) AUTHORITIES
))
TRIAL DATE: NoneDATE FILED: March 15, 2000
To: All PARTIES AND TO THEIR ATTORNEYS OF RECORD
PLEASE TAKE NOTICE that on May 1, 2000, at 9:30 a.m., or as soon thereafter as counsel may be
heard, in Department 6 of the above entitled court, located at 191 North First Street, San Jose, California,
the undersigned will move the court for an order quashing service of summons and dismissing the above
entitled action.
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Figure 7-1 Notice of Hearing (Motion) (continued)
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2Notice of Motion to Quash
This motion is made on the grounds that the defendant is not subject to the personal jurisdiction
of the courts of the State of California.
This motion is based upon this notice of motion, the attached memorandum of points and authorities,
the attached declaration of Owen Young and upon all other pleadings, papers, records and other
documentary materials on file herein.
DATED: April 3, 2000
Respectfully submitted,
Pat RivasAttorney for Defendant
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the declarant and specify the motion it supports (Rule 315).Information regarding the date, time, location of the hear-ing, and hearing judge, along with the trial date and datethe complaint was filed, must also appear immediately belowthe docket number, just as in the notice of hearing (Rule 311).
Memorandum of Points and AuthoritiesMost motions are required to be supported by a memo-
randum of points and authorities. The memorandum shouldcontain a statement of facts, a concise statement of the law,evidence and arguments relied on, and a discussion of thestatute, cases, and textbooks cited. If the memorandum ex-ceeds ten pages, a table of contents and table of authoritiesis also required, and a memorandum that exceeds fifteenpages requires an opening summary of the argument. Lengthrequirements for the memorandum are also set. Except forsummary judgment motions, the opening and respondingmemoranda cannot exceed fifteen pages. These limits canbe extended with court permission. Complete rules for lengthand format of a memorandum of points and authorities arefound in Rule 313 of the California Rules of Court.
Service and FilingFor most motions, the moving papers must be served and
filed at least twenty-one calendar days before the hearingdate (Rule 317 and CCP § 1005). The papers are generallyserved on the attorney for the opposing party (or the partyif not represented). Service can be made personally or byfirst class mail. However, if the papers are served by mail,additional time is required. The time is extended by fivedays if mailed to an address within the state of California,ten days if the address is outside the state of California butwithin the United States and twenty days if the address isoutside the United States (CCP §§ 1005 and 1013). Serviceby mail is usually done by either a secretary, paralegal, orattorney in the office representing the moving party. Papersmay also be served by express mail or other overnight de-livery and, if the parties agree, by fax. In such cases, theproscribed period of notice is extended by two court days(California Rules of Court § 1013).
Service is established by a proof of service by a certifi-cate or affidavit made by the individual serving or mailingthe papers. This proof of service must be filed with the courtat least five calendar days before the hearing (Rule 317b).
Where good cause exists, the twenty-one day statutorynotice time can be shortened. This requires an ex parte courtorder which is obtained by making an application to a judge.The application must be supported by a declaration statingthe reasons for the request (Rule 317b).
Responding to MotionsPapers filed in opposition to a motion include declara-
tions in opposition to the motion and a memorandum of pointsand authorities in opposition to the motion. They must be
filed at least ten calendar days before the hearing (Rule 317and CCP § 1005). Local rules of court may change this timeand should be consulted.
Reply PapersAll reply papers must be filed five calendar days before
the hearing.
COURT PROCEDURES INVOLVINGMOTIONS
HearingsAs long as a hearing on a motion does not interfere with
any trial date, most motions can be set for hearing at anytime that is convenient for the parties and the court. In somecases, however, the timing of the hearing on the motion islimited by statute. For example, a motion to quash or dis-miss, under CCP § 418.10 must be set no more than thirtydays after filing notice of the motion. And a motion for summaryjudgment cannot be filed until sixty days after the generalappearance of the party against whom it is filed. Motionsfor new trial, judgment notwithstanding the verdict, sum-mary judgment and certain discovery motions are other ex-amples of motions where the hearing date may be critical.Specific statutes should always be checked before settingthe motion for hearing.
Although most motions are set for hearing, many courtswill allow attorneys to submit the matter on the written pa-pers and waive any appearance. If an attorney elects to dothis, notice should be given to the court that the attorneywill not appear. Failure to give notice, especially by the movingparty, may result in the court’s dropping the matter (see Rule321).
Tentative RulingsUnder Rule 324 of the California Rules of Court, courts
are allowed to issue a tentative ruling on a motion prior tothe time set for hearing. The parties can usually telephonethe court to obtain such a ruling. Local rules should be checkedto determine if a particular court follows this procedure. Somecourts (including the United States district courts) post theirtentative rulings on the Internet. (To see an example, lookat the website for the San Mateo County superior court:www.co.sanmateo.ca.us/sanmateocourts/)
OrdersSome courts require parties to submit proposed orders to
the court with their moving or responding papers. If this isnot done, or if the judge does not accept the proposed or-der, the prevailing party is generally required to prepare andserve a copy of a proposed order to the other party for ap-proval as to form. The proposed order and any responsesare then submitted to the court for signature.
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SPECIFIC MOTIONS
Pretrial MotionsThe following is a list of common pretrial motions in
state court, along with references to codes and rules gov-erning those motions.
Motion Controlling Law
Motion to amend CCP § 473, 474Ct. Rule § 327
Motion to dismiss CCP §§ 418.10,583.110–583.430
Ct. Rules 372–373
Motion to strike CCP §§ 435–437Ct. Rule 329
Motion for judgment on CCP § 438the pleadings
Motion for change of venue CCP §§ 396–399Ct. Rule 326
Motion to quash CCP § 418.10
Discovery motions CCP § 2016 et seq.Ct. Rules 331–337
Motion for summary judgment CCP § 437cCt. Rules 342–345
Motions concerning trial date Ct. Rule 375
Motion to be relieved as counsel Ct. Rule 376
Motion for jury trial Ct. Rule 377
For the most part these motions are similar to their fed-eral counterparts. Some distinctions do exist, however.
Motion to Dismiss
In state practice, unlike federal practice, a motion to dis-miss is not used to challenge personal or subject matter ju-risdiction. The former is usually raised by a motion to quashservice of summons and the latter is usually raised by demur-rer. Motions to dismiss are made when one of the parties,usually the plaintiff, unreasonably delays the prosecutionof the case. If the complaint has not been served within threeyears of the filing date or the case has not been brought totrial within five years of the date the complaint was filed, thegranting of such a motion by the defendant is mandatory, ab-sent special circumstances (CCP §§ 583.110–430). A mo-tion to dismiss can also be based on the fact that the matter isbeing pursued in an inconvenient forum (CCP § 418.10).
Motion for a More Definite Statement
This motion does not exist in California. If a complaintis ambiguous and vague, the proper response is a demurrer.
Motion for Summary Judgment
Because of the congestion in the courts, one of the most
important motions in California litigation practice has be-come the motion for summary judgment. This motion, whichis controlled by section 437c of the Code of Civil Proce-dure and Rules 342–345 of the California Rules of Court, issimilar to a motion for summary judgment made in federalcourt. The motion may be directed to the entire action or toone or more causes of action within the complaint. The motioncan also be limited to certain specified issues within thecase, namely that there is no merit to an affirmative defense,that there is no merit to a claim for damages or that one ormore defendants either owed or did not owe a duty to theplaintiff or plaintiffs. In such a case, the motion may bereferred to as a motion for summary adjudication, ratherthan summary judgment. Procedurally, summary adjudica-tion and summary judgment motions are the same.
In a motion for summary judgment or summary adjudi-cation, the moving party is required to include a separatestatement setting forth plainly and concisely all material factsthe moving party contends are undisputed. Each of the ma-terial facts stated must be followed by a reference to thesupporting evidence (e.g., declaration, admission, answersto interrogatories, deposition, etc.). Furthermore, the decla-ration or affidavit must show that the declarant is compe-tent to testify and has personal knowledge of the matters setforth in the declaration or affidavit. The format for the separ-ate statement is found in Rule 342h of the Rules of Court:
Supporting and opposing separate statements in a motion forsummary judgment shall follow this format:
Supporting statement
Undisputed Material Facts: Supporting Evidence:
1. Plaintiff and defendant Jackson declaration, 2:17-21;entered into a written contract, Ex. A to Jacksoncontract for the sale of declaration.widgets.
2. No widgets were ever Jackson declaration, 3: 7–21.received.
Opposing statement
Undisputed Material Factsand Alleged SupportingEvidence:
1. Plaintiff and defendant Undisputedentered into a writtencontract for the sale ofwidgets.
2. No widgets were ever Disputed. The widgets werereceived. received in New Zealand on
August 31, 1991. Baygideclaration, 7:2–5.
Special time requirements for filing and serving summaryjudgment motions exist. The motion cannot be made untilsixty days after the general appearance of the party againstwhom the motion is directed. The motion must be set forhearing no later than thirty days prior to date of trial, absenta court order to the contrary. Notice of motion and support-ing papers must be served on all other parties at least twenty-
46
eight days before the time set for hearing. Responsive pa-pers must be served and filed not less than fourteen daysprior to the hearing, unless the court orders otherwise. Likethe moving papers, opposition papers must include a sepa-rate statement responding to each of the material facts con-tended by the moving party to be undisputed. The respondingparty must refer to evidence showing that each of the factsis disputed. Failure to include such a statement can be asufficient ground for granting the motion. If either party objectsto any evidence being put forth, that objection must be madein conformity with Rule 343. Rule 343 requires that the ob-jecting party either file written objections three court daysbefore the hearing, or arranges to have a court reporter presentat the hearing.
Discovery Motions
Some special rules do apply to various discovery mo-tions and will be discussed in subsequent chapters whichdeal with discovery.
Trial MotionsCommon trial motions in state court include the following:
Motion Controlling Law
Motion for nonsuit CCP § 581c
Motion for directed verdict CCP § 630
Motion for judgment CCP § 631.8
Posttrial MotionsCommon posttrial motions in state court include the fol-
lowing:
Motion Controlling Law
Motion for judgment NOV CCP § 629
Motion for new trial CCP §§ 655–663.2Ct. Rule 203
Motion to tax costs CCP §§ 1033–1038
Motion for relief CCP § 473
Trial and posttrial motions are more fully discussed inChapter 16 of this supplement.
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PART III DISCOVERY
CHAPTER 8 OVERVIEW OF THE DISCOVERY PROCESS
■ California civil discovery is primarily regulated by the Civil Discovery Act of 1986, CCP §§2016–2036.
■ California discovery methods include depositions, interrogatories, requests for admissions,requests to produce, medical examinations, and requests for exchange of expert witnessinformation.
■ Except for the disclosure requirements, California civil discovery practice is similar to federaldiscovery practice.
KEY POINTS
THE NATURE OF DISCOVERYThe discovery rules in California have been patterned after
the rules in federal court and in many respects are similar.However, California does not have any procedures similarto the new disclosure rules under federal practice. Discov-ery in California is subject to the proper request. The basicdiscovery rules for California are found in sections 2016–2036 of the Code of Civil Procedure, known as the CivilDiscovery Act of 1986. For the most part, these sectionsapply whether the action is a limited civil case (or in mu-nicipal court) or is in superior court, although some limitsapply when the matter is a limited civil case. Discovery infamily law cases is controlled by Civil Code § 4801.01. Ad-ditional rules regarding discovery are found in the Califor-nia Rules of Court, Rules 331–337. (See Figure 8-1) Caselaw also plays an important part in the law of discovery.
Choice of Discovery MethodsIn California, an attorney has available the following methods
of discovery: depositions, interrogatories, requests for ad-missions, requests to produce, medical examinations, andrequests for exchange of expert information. Figure 8-1 is asummary of the various California discovery code sectionsand rules of court.
Time LimitsAbsent a stipulation or court order to the contrary, dis-
covery normally must be completed thirty days before thetrial date, and all discovery motions heard fifteen days priorto the trial. If a case has been to judicial arbitration, absenta court order, discovery is closed fifteen days before thearbitration hearing, even if the award is rejected (Calif. Rulesof Court § 1612 and CCP § 2024). Unlawful detainer ac-tions and eminent domain proceedings are also regulatedby different rules. Specific time limits that apply to eachmethod of discovery are discussed in subsequent chapters.
Limited Civil Cases—Economic LitigationLimited civil cases (or cases in municipal court) that come
under the rules of economic litigation and are governed byCCP §§ 94 and 95. These sections incorporate the methodsof discovery along with the notice and format requirementsof the Civil Discovery Act. However, the number of discov-ery requests that can be made is limited. Absent a court or-der or stipulation, the total combined number of interrogato-ries, requests for admissions, and demands for inspectioncannot exceed thirty-five, and depositions are limited to oneper party. In addition to the normal discovery methods available,the code permits two other methods of obtaining informa-tion in municipal court actions. The first is a “case ques-tionnaire.” A case questionnaire, a Judicial Council form,allows parties to obtain basic information regarding the case.Case questionnaires can be served on the other party withthe complaint or the answer. However, the party serving thecase questionnaire must also serve a completed question-naire (CCP § 93). A second method of obtaining informa-tion is the request for statement identifying witnesses andevidence. This method allows either party to obtain the namesand addresses of all trial witnesses along with a descriptionand copies of all documentary evidence intended to be in-troduced. Witnesses not identified and documents not in-cluded can be inadmissible at trial. The request is servednot more than forty-five days nor less than thirty days priorto trial (CCP § 96).
Ethical Consideration in DiscoveryThe discovery act makes it very clear that unreasonable
behavior in requesting or responding to discovery will not betolerated. Monetary and other sanctions are repeatedly pro-vided for in the discovery sections for this type of conduct.
THE EXTENT OF ALLOWABLE DISCOVERYDiscovery in California is limited to matters, not other-
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CODE OF CIVIL PROCEDURE (CIVIL DISCOVERY ACT OF 1986)
§ 2016 TITLE AND DEFINITIONSThe code sections dealing with discovery are known as “The Civil Discovery Act of 1986.” Variousterms are defined.
§ 2017 SCOPE OF DISCOVERYThis section defines the matters that are generally subject to discovery. It specially permitsdiscovery of the existence and limits of insurance coverage, and limits discovery of plaintiff’ssexual conduct in sexual harassment, assault or battery cases. Section 2017 also provides generalguidelines for protective orders.
§ 2018 ATTORNEY’S WORK PRODUCT PROTECTIONSection 2018 specifically creates a work product privilege, defining both an absolute privilegeand a qualified privilege. It also lists some exceptions to the privilege.
§ 2019 METHODS OF DISCOVERYThis section lists the various methods of permissible discovery, empowers the court to makeprotective orders, and discusses sequence and timing of discovery methods, discovery relatingtrade secrets, and service by mail.
§ 2020 DEPOSITION OF NONPARTYThis section explains the procedures for taking the deposition of a nonparty. In particular itcovers the issuance of a deposition subpoena and its use in compelling the attendance of anonparty or in obtaining business records. It also covers service of the subpoena, compensationof the witness, and punishment for disobedience of the subpoena.
§ 2021 MODIFICATION OF DISCOVERY PROCEDURES BY STIPULATION OF PARTIESThis section allows parties to modify the discovery procedures outlined in the code.
§ 2023 MISUSE OF DISCOVERY PROCESSThis section outlines acts which constitute a misuse of the discovery process and defines thetypes of sanctions that can be imposed for that misuse. It also describes motion procedures forrequesting sanctions.
§ 2024 TIME LIMITATIONS ON DISCOVERYThis section covers general time limits on discovery and discovery motions for cases set fortrial and for cases going to judicial arbitration. Specific provisions apply to unlawful detainerand eminent domain proceedings.
§ 2025 ORAL DEPOSITIONS IN CALIFORNIAThis section explains when and where depositions can be taken; notice requirements; objectionsto the deposition; protective orders; failure to attend the deposition; procedures for audio orvideo recording of the deposition; qualifications of the deposition officer; examination andobjections to testimony during the deposition; motions concerning the deposition; requestsfor copies of the transcript, audio tape, or video tape; reviewing and approving depositiontranscript; objecting to the transcript; subsequent depositions of individuals; and use of depositionat trial.
§ 2025.5 COPIES OF TRANSCRIPT, VIDEOTAPE OR OTHER RECORDING OF DEPOSITION TESTIMONY.Subject to a protective motion by the parties, any can request and obtain a copy of the depositiontranscript if they pay for it.
§ 2026 ORAL DEPOSITIONS IN ANOTHER STATEThis section authorizes the taking of depositions in other states and outlines the proceduresfor doing so.
§ 2027 ORAL DEPOSITIONS IN FOREIGN NATIONThis section authorizes the taking of oral depositions in a foreign nation and outlines theprocedures for doing so.
§ 2028 DEPOSITIONS BY WRITTEN QUESTIONSThis section discusses taking a deposition by written questions rather than oral examination. Itcovers notice of the deposition, service of questions, objections to questions, motions regardingobjections, review of questions by the deponent, protective orders, and the procedure for takingthe deposition by the deposition officer.
§ 2029 DEPOSITION IN CALIFORNIA FOR USE IN ACTION PENDING IN ANOTHER STATE ORFOREIGN NATIONAllows California residents to be deposed in actions pending in other jurisdictions and makesother provisions of the discovery act applicable to such depositions.
Figure 8-1 Summary of California Discovery Law
continued
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§ 2030 WRITTEN INTERROGATORIES TO PARTYThis section explains the procedure for using and responding to interrogatories. It limits thenumber to thirty-five specially prepared questions, but provides a method for expanding thatlimit. It also discusses various motions relating to interrogatories and the use of interrogatoriesat trial.
§ 2031 INSPECTION OF DOCUMENTS, TANGIBLE THINGS, LAND, OR OTHER PROPERTY OF PARTYThis section explains the scope of this discovery device as well as the process for its use. It alsosets out the procedure for responding to this discovery method and sets out the procedure forobtaining protective orders and motions to compel. This section is specifically made applicableonly to parties.
§ 2032 PHYSICAL AND MENTAL EXAMINATIONSThis section defines when a physical or mental examination can be ordered, who can performthe examination, and the procedure for obtaining the examination. Distinction is made betweenexaminations of plaintiffs seeking recovery for personal injuries and other cases. The sectionalso contains provisions detailing the rights and remedies available to the parties should problemsarise implementing this discovery device. The disposition of the report of the examining physicianis also explained.
§ 2033 REQUESTS FOR ADMISSIONS BY PARTYThis section covers the use and scope of requesting admissions. It explains the procedure,including timing of requests. The number of requests is limited to thirty-five but can be expanded.The procedure for responding or objecting is also covered, as are motions regarding problemswhich arise. The effect of admissions is also explained.
§ 2033.5 JUDICIAL COUNCIL FORM INTERROGATORIES AND REQUESTS FOR ADMISSIONSThis section authorizes the Judicial Council to develop forms for interrogatories and requestsfor admissions for optional use.
§ 2034 EXCHANGE OF INFORMATION CONCERNING EXPERT WITNESSESThis section explains the procedure for obtaining information regarding experts who will testifyat trial. It provides for simultaneous exchange of the names, addresses and reports of expertswho will testify. The section also discusses motions for protective orders. It also authorizes thedeposition witnesses listed. The section also explains the consequences of failing to complywith the provisions of the section.
§ 2035 DISCOVERY PRIOR TO COMMENCEMENT OF ACTIONThis section authorizes the taking of a deposition to perpetuate testimony prior to thecommencement of any lawsuit. The procedures for setting up the deposition are explained.
§ 2036 DISCOVERY PENDING APPEALThis section explains the scope of discovery pending appeal, the methods of discovery available,and the procedures for obtaining such discovery.
LIMITED CIVIL CASES—ECONOMIC LITIGATION
§ 94 PERMISSIBLE FORMS OF DISCOVERYThis section outlines the permissible forms of discovery in limited civil cases (or cases in municipalcourt) under economic litigation. The section incorporates the notice and format requirementsof the Civil Discovery Act and retains the various methods of discovery available under thatact. However it limits the number of interrogatories, requests for admissions, and inspectiondemands to a total of thirty-five, and limits the number of depositions to one, absent a courtorder to the contrary.
§ 95 REQUEST FOR STATEMENT IDENTIFYING WITNESSES AND EVIDENCEThis section authorizes either party to request the other party to provide the names and addressesof all parties intended to be called as witnesses at trial and sets forth the procedure for doing so.
RULECALIFORNIA RULES OF COURT
331 FORMAT OF SUPPLEMENTAL AND FURTHER DISCOVERYThis section describes the format to be followed when sending supplemental interrogatories,or supplemental responses , amended responses, or further responses to interrogatories, requestsfor admissions, or inspection demands.
335 FORMAT OF DISCOVERY MOTIONSThis rule describes the format to be followed for motions to compel.
337 SERVICE OF PAPERS ON NONPARTY DEPONENTThis rule requires that motions to compel addressed to a nonparty deponent be personally servedon the nonparty unless the nonparty agrees to accept service by mail on the deposition record.
Figure 8-1 Summary of California Discovery Law (continued)
50
wise privileged, that are relevant to the subject matter in-volved in the action and that are admissible or lead to ad-missible evidence. Two matters are specifically addressedin the code. The existence and contents, including policylimits, of any insurance policy that would cover the judg-ment is made discoverable. The fact that this information isdiscoverable does not make it admissible at trial (CCP §2017(b)). Furthermore, if a claim is not covered by insur-ance, the plaintiff cannot discover the financial ability ofthe defendant to pay the judgment, unless the defendant’sfinancial status is relevant to the case (e.g., a claim for pu-nitive damages, where the amount awarded depends on thefinancial status of the defendant). The code also expresslycovers the discoverability of the plaintiff’s sexual conductin actions for sexual battery, sexual harassment, and sexualassault. Any party seeking discovery concerning the plain-tiffs sexual conduct with anyone other than the alleged per-petrator must establish good cause and must make a motionto allow the discovery (CCP § 2017(d)).
Limits on DiscoveryDiscovery in California is subject to the same limitations
as are found in the federal rules. Matters subject to eviden-tiary privileges, including the attorney/client privilege, arenot discoverable. The work product privilege is specificallydescribed in the code (CCP § 2018). Naturally, any consti-tutional privilege, such as the Fifth Amendment or the rightto privacy also apply. Because of the nature of some of thelitigation in California, privileges relating to government secretsand trade secrets have also become important. Additionally,the court retains the power to limit any discovery requestthat is considered unreasonably duplicative, cumulative, bur-densome, or expensive (CCP §§ 2017(c) and 2019(b)).
Work Product PrivilegeThe work product privilege in California distinguishes
two types of privileges, one absolute and one qualified. Writingsthat reflect an attorney’s impressions, conclusions, opinions,legal research or theories are absolutely privileged. Theycannot be obtained through any discovery method, even witha court order. All other types of work product are subject toa qualified privilege. That is, they are not generally discov-erable, but can be made so if a court determines that denialof discovery would unfairly prejudice the party seeking dis-covery or would result in an injustice (CCP § 2018).
Trade SecretsSpecial protection is given to disclosure of information
that is considered to be a trade secret. See Civil Code 93426.5and CCP § 2019(d).
Confidentiality Agreements and Protective OrdersProtective orders are generally covered in CCP §§ 2017(c)
and 2019(b). Additionally, they are repeatedly referred toin sections dealing with specific methods of discovery.
COOPERATING WITH DISCOVERYThe California code and the courts encourage coopera-
tion among the attorneys in the discovery process. This atti-tude is reflected in two important ways. First, in almost allcases, the code requires the attorneys to try to resolve theirproblems prior to making a motion. This is referred to asthe “meet and confer” requirement. (And the motion mustbe accompanied by a declaration stating that this was done.)Secondly, in all cases, the court has the power to imposesanctions for failure to cooperate. The California courts canimpose the same basic sanctions as the federal courts.
Discovery ConferencesDiscovery conferences are not specifically provided for
in the California Civil Discovery Act. However, discoverymatters can be discussed at other types of pretrial confer-ences, particularly case management conferences (routinepretrial conferences).
Motions to Compel DiscoveryThroughout the Civil Discovery Act, the court is given
the power to grant or deny orders to compel discovery. Motionsto compel discovery fall into two categories. First, if a partyfails to respond at all to a discovery request, a motion tocompel that response is made. Alternatively, if a party re-sponds, but does so in an incomplete or improper manner,then a motion to compel further response is made. Such amotion is also appropriate where an objection to discoveryhas been made and the propounding party feels the objec-tion is not proper. In addition to the code sections in theCivil Discovery Act, the same code sections and rules thatgovern all motions govern motions to compel discovery. Rule335 of the California Rules of Court provides additionalrequirements:
1. In addition to a notice of motion, declaration in sup-port of motion, and memorandum of points and authorities,a motion to compel further responses must contain aseparate document which sets forth (a) each interroga-tory, item or category of items, request, question ordocument or tangible thing to which a further responseis requested, (b) the response that was given, and (c)the factual and legal reasons for compelling it. Thisdocument is usually entitled “Separate Statement.”
2. Any motion concerning interrogatories, inspection de-mands, or admissions requests must identify the dis-covery by set number.
3. If the response to the disputed interrogatory is depen-dent on the response to any other question, that ques-tion and its response must also be set forth.
4 Finally, if pleadings or other documents in the file arerelevant to the motion, they must be summarized.
Sanctions Against Noncomplying PartiesSection 2023 gives the court the power to impose mon-
etary sanctions, issue sanctions, evidence sanctions, or ter-
51
minate sanctions. An issue sanction involves a court order thatdesignated facts be taken as established in the action. In otherwords, the party who abused the discovery process will notbe allowed to prove or defend against a certain issue in thecase. Similar to this is an evidence sanction, which involvesa court order denying the admission of certain evidence in acase. A terminating sanction results in the termination ofthe case, either by dismissal or judgment being entered. Insome extreme cases, parties or their attorneys can also beheld in contempt of court and punished accordingly.
Service of Discovery and Discovery MotionsAll discovery requests, responses, and motions are served
by the attorney for the propounding party on the attorneysfor all other parties in the action, not only on the attorneyfor the responding party. Generally, service is by first classmail but can be by personal service, express mail, or, whereagreed to by all, by fax. An appropriate proof of service isprepared. Discovery requests and responses are not filed withthe court. The propounding party keeps all originals. Natu-rally, discovery motions must be filed in court.
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CHAPTER 8A EXCHANGE OF INFORMATION CONCERNINGEXPERT WITNESSES
■ Prior to trial parties can demand simultaneous exchange of information about expertwitnesses.
■ Information to be exchanged may include expert’s name, qualifications, expected testimonyand written reports.
■ Failure to comply with the demand can result in losing right to call expert at trial.
■ Bookmark these sites, as they provide valuable information about experts in California:
www.ca-experts.com www.idex.com
KEY POINTS
EXCHANGE OF INFORMATIONCONCERNING EXPERT WITNESSES
Under the Federal Rules of Civil Procedure, parties arenow automatically required to disclose substantial informa-tion regarding their expert witnesses. California has no au-tomatic disclosure requirements, but much of the sameinformation regarding experts is discoverable through a dis-covery method known as a Demand for Information Con-cerning Expert Witnesses (CCP § 2034). After a trial datehas been set in a case, either party may demand a simulta-neous exchange of information concerning each other’s ex-pert trial witnesses. The information that must be exchangedincludes not only the name of the expert, but also informa-tion about the expert’s qualifications, expected testimony,and copies of discoverable written reports. Information aboutexperts can often be obtained or verified on the Internet.Two valuable sites are: www.ca-experts.com, which containsinformation about witnesses, including curriculum vitae forsome experts; and www.idex.com, which provides informa-tion about prior deposition or court testimony of witnesses.See Figure 8A-1 for an example of a demand for disclosureof experts.
Time for DemandAny party may make the demand for exchange of infor-
mation no later than the tenth day after the initial trial datehas been set, or seventy days before the trial date, which-ever is closer to the trial date (CCP § 2034(b)).
Contents of DemandThe demand must be in writing and identify, below the
title of the case, the party making the demand. It shouldalso state that it is being made pursuant to CCP § 2034. Thedemand also specifies the date for the exchange. Unless changedby court order, this date must be fifty days before the initialtrial date or twenty days after service of the demand, whicheveris closer to the trial date (CCP § 2034(c)).
Responses to Demand for ExchangeA responding party can either object to the demand for
exchange or comply by serving a written response. An ob-jection should be made by promptly filing a motion for aprotective order. (CCP § 2034(e)) If a written response isserved, it should include the following information (CCP §2034(f)):
1. Either a list of names and addresses of experts or astatement that the party does not expect to call any expertwitnesses;
2. If the witness is a party, employee of a party, or re-tained by a party in connection with the case, the ex-change must include a declaration, under penalty ofperjury, signed by the attorney (or party if not repre-sented) containing the following information:
a. Narrative statement of qualifications of each expert;b. Narrative statement of general substance of expected
testimony;c. Representation that expert has agreed to testify at
trial;d. A representation that expert will be sufficiently
familiar with pending action to submit to a mean-ingful oral deposition;
e. Statement of expert’s hourly and daily fee for pro-viding deposition testimony.
Experts Retained After Demand Is MadeIf a party retains an expert after the original demand, and
time to respond has expired, information concerning thatexpert may be disclosed within twenty days after the origi-nal date fixed for the exchange. In such a case, the partyretaining the expert is required to make that expert immedi-ately available for deposition, even though the time limitfor discovery has expired.
In lieu of the supplemental disclosure (or if the time limitdescribed above has lapsed), if a party has retained a subse-quent expert or wishes to amend the expert witness declara-
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Tonya DeLeonAttorney at LawCalif. State Bar No. 01234103 North First St.San Jose, California, 95110(408) 555-1212
Attorney for Plaintiff
IN THE SUPERIOR COURT OF CALIFORNIACOUNTY OF SANTA CLARA
MARILYN MASON, )) No. 12345
Plaintiff )) DEMAND FOR EXCHANGE OF) EXPERT TRIAL INFORMATION
vs. ) PURSUANT TO CCP § 2034 AND) DEMAND FOR PRODUCTION OF) EXPERT REPORTS AND WRITINGS
MERCHANT’S GROCERY, et al., ) PURSUANT TO CCP § 2034(a)(3))
Defendants. )
DEMANDING PARTY: Plaintiff, MARILYN MASON
DATE AND TIME OF EXCHANGE: June 13, 2000; 9:00 a.m.
PLACE OF EXCHANGE: 103 North First St.San Jose, California 95110
Pursuant to Code of Civil Procedure Section 2034, Plaintiff, MARILYN MASON, hereby demands
that on or before the above mentioned date of exchange and at the above mentioned place of exchange,
all parties to this action take part in a mutual and simultaneous exchange of information concerning
each party’s expert trial witnesses. The exchange of expert witness information shall include the following:
1. A list setting forth the name and address of any natural person, including any party, whose oral
or deposition testimony in the form of an expert opinion will be offered in evidence at trial, or
Figure 8A-1 Demand for Information Regarding Expert Witnesses
continued
1Demand for Exchange of Expert Trial Information
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2. A statement that no expert witness’s testimony will be offered.
If any designated expert is a party, an employee of a party, or has been retained by that party for
the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for
the trial of the action, the exchange shall include or be accompanied by an expert witness declaration
signed only by the attorney for the party designating the expert, or by the party, if that party has no
attorney. This declaration shall be executed under penalty of perjury and contain:
1. A brief narrative statement of the qualifications of the expert;
2. A brief narrative statement of the general substance of the testimony the expert is expected to give;
3. A representation that the expert has agreed to testify at the trial;
4. A representation that the expert will be sufficiently familiar with the action to submit to a
meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that
the expert is expected to give at trial; and
5. A statement of the expert’s hourly and daily fee for providing deposition testimony.
Under Code of Civil Procedure Section 2034(a)(3), each party is also required to produce for inspection
and copying at the place and on the date mentioned above, all discoverable reports and writings, if
any, made by any designated expert witness in the course of preparing that expert’s opinion.
DATED: May 15, 2000 ____________________________________________Tonya DeLeonAttorney for PIaintiff
Figure 8A-1 Demand for Information Regarding Expert Witnesses (continued)
2Demand for Exchange of Expert Trial Information
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tion regarding the testimony of any named expert, that partymay make a motion to augment expert witness list or aug-ment or amend declarations of expert witnesses. Under ex-ceptional circumstances this motion can be made at any time(CCP § 2034(k)).
Expert Information Known but Not DisclosedIf a party has failed to disclose expert information (rather
than subsequently retaining an expert), that party can make
a motion to submit tardy expert witness information. Thecourt must consider the prejudice suffered by the other sidebefore granting or denying this motion (CCP § 2034(l)).
Failure to Comply with DemandFailure to comply with the requirements of the demand
for simultaneous exchange of expert information can resultin the expert’s testimony being excluded at trial (CCP § 2034(j)and (m)).
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CHAPTER 9 DEPOSITIONS
■ CCP §§ 2020 & 2025–2029 regulate depositions in California.
■ Depositions are the only discovery method for obtaining information from nonparties inCalifornia.
■ Special subpoenas, known as deposition subpoenas, are used to compel attendance ofnonparties at depositions.
■ Depositions can sometimes be used in lieu of testimony at trial.
KEY POINTS
THE DEPOSITIONThe use of depositions in state court is regulated by Code
of Civil Procedure section 2020 and sections 2025–2029.Depositions in state court are similar to those in federal courtin many ways, including the scope of inquiry and the gen-eral procedures in noticing and taking the deposition.
The types of depositions in California include the oraldeposition, the deposition on written questions and the depo-sition of business records. In California, the deposition isthe only discovery method that can be used to obtain infor-mation or documents from nonparties.
THE NATURE OF THE ORAL DEPOSITIONSection 2025 of the Code of Civil Procedure is the pri-
mary section regulating oral depositions taken in Califor-nia. Additionally, section 2020 contains provisions that affectdepositions of nonparties and sections 2026 and 2027 regu-late depositions taken in other states and foreign nations,respectively.
Obtaining Written RecordsDocuments and things that are in the custody or control
of a party can be discovered in two ways, either through therequest to produce (see Chapter 12) or through the deposi-tion. When a party’s oral deposition is taken, that party canbe required to bring records or documents by including a re-quest for the documents in the notice of taking deposition.
In California the request to produce cannot be used againsta nonparty. Therefore, documents or things in the custodyof a nonparty must be discovered through the use of thedeposition. The procedures to obtain records differ, dependingon the type of documents sought.
In all cases, the attorney can serve the person having controlof the records with a deposition subpoena, compelling thatperson’s attendance at a deposition and further compellingthat person to bring designated documents or items to thedeposition. The attorney can then examine the documentsin the course of the oral examination.
Business RecordsIf business records are the subject of the discovery, an
alternative procedure exists. If the attorney is interested onlyin the records and does not want to conduct an oral exami-nation of anyone, the attorney can serve the nonparty hav-ing the records with a special deposition subpoena forproduction of business records for copying (see Figure 9-1).This subpoena is directed to the custodian of records (i.e,the person in the business in charge of the records). Thecustodian is allowed to respond to the subpoena by sendingthe original or copies of the records to a designated loca-tion, along with an affidavit or declaration verifying the au-thenticity of the records (Evidence Code § 1561). The subpoenacan require production no earlier than twenty days after is-suance of the subpoena or fifteen days after service, which-ever is later. If the records are copied by the deponent, areasonable fee, including labor, for the copying must be paid(Evidence Code § 1563). The designated location for thistype of deposition is often the office of an authorized copyservice. The copy service copies the records and sends themto the attorney and any other attorney who has requested acopy). A personal appearance at the deposition is not re-quired by the deponent (the custodian of records) or by theattorneys. In this type of deposition, a copy of the deposi-tion subpoena is served on all attorneys and constitutes no-tice of the deposition. A separate notice of taking depositionis not required. CCP § 2020 and Evidence Code § 1560 de-scribes in detail how this takes place.
Consumer’s Personal or Employment RecordsA special problem arises when records to be discovered
are consumer’s personal or employment records. Consumer’spersonal records are defined in CCP § 1985.3 and includesuch items as medical records, bank records, or school records.Employment records are defined in CCP § 1985.6 and in-clude books, documents, other writings or electronic datapertaining to employment of any employee or former em-ployee. If these records are the object of the discovery, priornotice must be given to the consumers or employees thattheir records are being subpoenaed or discovered, and thatthey have the right to object. A Judicial Council form existsfor this purpose (see Figure 9-2). The consumer must be
SAMPLE
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Figure 9-1 Deposition Subpoena for Production of Business Records
SAMPLE
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Figure 9-2 Notice to Consumer or Employee and Objection
continued
SAMPLE
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Figure 9-2 Notice to Consumer or Employee and Objection (continued)
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served with a copy of the deposition subpoena and copy ofthe notice of taking deposition. Notice must be served onthe consumer at least ten days prior to the date set in thesubpoena for production of the documents, and at least fivedays before the subpoena is served on the custodian of records(CCP §§ 1985.3(b)(2) and (3); and 1985.6(b)(1), (2), and(3)). Service can be made personally or by mail, but if thenotice is served by mail, the time is extended as it is formotions. The consumer or employee then has an opportu-nity to object to the discovery by completing the section ofthe Judicial Council form entitled “Objection by Nonpartyto Production of Record.” Proof of notice to the consumeror a written waiver from the consumer or employee must beserved with the subpoena. A copy must also be served withthe notice of taking deposition.
Trends in Oral DepositionsCCP § 2025(1) specifically regulates the use of video
(and audio) recording of depositions. This section dictatesin a very detailed manner how the videotaping of the depo-sition is to be conducted and the use of the taped depositionat trial. An important point to note is that if an attorney wishesto videotape or audiotape a deposition, notice of that intentmust be given prior to the deposition. This notice is usuallyincluded in the notice of taking deposition or in the sub-poena.
THE PARALEGAL’S ROLE BEFORE THEORAL DEPOSITION
Notice RequirementsCCP § 2025 and CCP § 2020 regulate the notice require-
ments for oral depositions in California. The complete no-tice requirements differ depending on whether the deponentis a party or a nonparty and on whether the deponent is re-quested to bring records or documents to the deposition.
Party DeponentIf the deponent is a party, ten days prior written notice of
the deposition must be given to attorneys for all parties whohave appeared in the action (the time is extended if it ismailed, just as it is for motions). Proper service of the no-tice on the party deponent’s attorney is sufficient to compelthe attendance of the party at the deposition. If records ordocuments are also requested, the request is included in thenotice of taking deposition. No subpoena is required. How-ever, if the documents are consumer or employment records,the notice to consumer or employee should also be served.It need not be personally served and can be served on theattorney of record for the party.
Nonparty DeponentIf the deponent is not a party to the action, ten days prior
written notice of the deposition must be given to attorneys
for all parties just as with party deponents. In addition, thedeponent must be served with a subpoena. A copy of thesubpoena is attached to the notice sent to all attorneys. Ifrecords are requested, the subpoena so designates. There areno absolute time requirements for service of the subpoena(unless consumer or employment records are requested). Thecode requires that subpoenas be served within a reasonabletime so as to allow the witness to appear and to locate andproduce the designated documents. If consumer or employ-ment records are requested, the requirements of CCP §§ 1985.3and 1985.6 must also be met.
Content of NoticeThe deposition notice must state the following informa-
tion:
1. Address where the deposition will be taken;2. Date and time of the deposition;3. Name of each deponent and address and telephone, if
known, of nonparty deponents.
Where relevant, the following information would also beincluded in the notice:
1. Description of any materials or documents to be pro-duced by deponent;
2. Intention to record by audio or videotape in additionto stenographic method;
3. Intention to reserve the right to use at trial a video-taped deposition of a treating or consulting physicianor of any expert witness;
4. If named deponent is not a natural person (e.g., corpo-ration), a description with reasonable particularity thematters on which examination is requested.
Service of NoticeA plaintiff is allowed to serve a notice of a deposition
twenty days after service of the summons on, or appearanceby, any defendant. The defendant is allowed to serve a depo-sition notice at any time after that defendant has been servedor has appeared in the action, whichever occurs first (CCP§ 2025(b)(1) and (2)).
Format of NoticeA notice of taking deposition is normally prepared on
pleading paper and the caption is the same as that on thepleadings. Attached to the notice or proof of service wouldalso be a list of all parties or attorneys on whom it is served.Any objection to the format of the notice must be made withinthree days prior to the date scheduled for the deposition orit is waived (CCP § 2025(g)).
Subpoena RequirementsA nonparty witness must be served with a subpoena to
compel attendance at a deposition. CCP § 2020 establishes
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special deposition subpoenas for this purpose. These sub-poenas are entitled “Deposition Subpoena for Personal Ap-pearance” and “Deposition Subpoena for Personal Appearanceand Production of Documents and Things.” These subpoe-nas are used in lieu of the normal subpoena that is used tocompel attendance at a court proceeding (described in CCP§ 1985) (see Figures 9-3 and 9-4).
Deposition subpoenas can be issued by the clerk of thecourt or the attorney of record for any party. Unlike a regu-lar subpoena duces tecum, a deposition commanding pro-duction of documents does not require a supporting affidavitor declaration showing good cause. The subpoena shouldbe served personally if the deponent is an individual. If thedeponent is an organization, service can be made on anyofficer, director, custodian or records, or authorized agentfor service of process.
Where personal attendance at the deposition is required,either with or without the production of documents, the sub-poena must be served a sufficient time in advance of thedeposition to provide a reasonable opportunity to locate andproduce any documents and a reasonable time to travel tothe place of the deposition (CCP § 2020(f)). If the subpoenacommands the production of business records for copyingonly, it must be served fifteen days prior to the date of pro-duction, and it must be issued at least twenty days beforethe date of production (CCP § 2020(d)(l)).
If personal attendance and testimony is required, the witnessis entitled to a statutory witness fee, whether or not the wit-ness demands it, to be paid at the time service is made or atthe time of the deposition. If the deponent is a peace officeror fireman, the attorney noticing the deposition must de-posit a statutory amount (currently $150) with the court atthe time the subpoena is issued (Govt. Code §§ 68093–68097.55). If the deponent is an expert witness, that wit-ness is entitled to a fee based on the expert’s reasonableand customary hourly or daily fee. (CCP § 2034(i)(2)) Ifthe attorney thinks the expert fee is unreasonable, the attor-ney can make a motion in court to set the fee.
Preparation for the DepositionSection 2025(e) limits the site that can be chosen for a
deposition. The deposition of a natural person, whether aparty or not, can be taken at a place that is either:
1. Within seventy-five miles of the deponent’s residence;or
2. Within the county where the action is pending and within150 miles of the deponent’s residence.
If the deponent is an organization that is a party, the depo-sition must be located:
1. Within seventy-five miles of the principal executive orbusiness office in California; or
2. Within the county where the action is pending and within150 miles of that office.
The deposition of a nonparty organization must be takenwithin seventy-five miles of the organization’s principalexecutive or business office in California. Any depositionmay be taken elsewhere if the parties so stipulate, or if thecourt so orders.
Preparation for Defending the DepositionCCP § 2025(i) describes motions for protective orders
and authorizes the court to intervene to protect a person ororganization from unwarranted annoyance, embarrassment,or oppression, or undue burden and expense. Before mak-ing such a motion, as with all discovery motions, the attor-neys must try to resolve the problem and a declaration statingthat this was done must accompany the motion.
THE PARALEGAL’S ROLE AFTER THEORAL DEPOSITION
Transcript ArrangementsAfter the original deposition transcript has been prepared
the parties have thirty days in which to read, correct, andsign the deposition, although it is common for the parties towaive the signature requirement at the deposition itself. Ifthe deponent wishes to make changes or corrections to thedeposition transcript, this should be done within the thirtydays in writing. If a deponent changes his testimony, thatchange will be noted along with the original testimony. Thedeponent can change testimony sending the change in a certifiedletter with copies to all attorneys. If no written transcriptexists because the original deposition is in video or audioformat, similar rights exist (CCP § 2025(q)).
Preserving the TranscriptIf in transcript form, the original deposition will be sent
to the attorney noticing the deposition. That attorney is re-sponsible for keeping the deposition for six months afterthe final disposition of the case (CCP § 2025 (s)). If thedeposition is in video or audio form, the original is keptwith the operator for the same time.
Motions to CompelIf problems arise during the deposition examination, the
attorney may make motions to compel answers or furtheranswers to questions (CCP § 2025(m)(n)(o)). The motionmust be made no later than sixty days after completion ofthe record of the deposition. No less than five days prior tothe hearing on the motion, the moving party must lodge withthe court a certified copy of the relevant parts of the tran-script. Documents the parties lodge with the court are returnedto the parties after the relevant hearing. The court requiresthe parties to provide a stamped, self-addressed envelope forthis purpose (Rule 319 (b) of California Rules of Court).
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Figure 9-3 Deposition Subpoena for Personal Appearance
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Figure 9-4 Deposition Subpoena for Personal Appearance and Production of Documents and Things
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in the foreign jurisdiction when action in that court is nec-essary to complete the deposition. A party obtains a com-mission, letters rogatory or letters of request by making amotion in the trial court (CCP § 2027(c)).
Deposition to Perpetuate TestimonyIn some cases, California law authorizes taking a depo-
sition before any lawsuit has been filed. If a person antici-pates that he or she will be named as a party in a lawsuitand exceptional circumstances exist necessitating the pre-serving or his own testimony or that of another, a deposi-tion may be allowed. A prior court order authorizing thedeposition must be obtained. The procedure is described inCCP § 2035(c) and (d).
Use of Deposition at TrialThe use of a deposition at trial is regulated by section
2025(u). Like all forms of discovery, a deposition may beused to impeach or contradict a witness’s testimony at trial.Unlike other forms of discovery, at times the deposition canbe used in lieu of the courtroom testimony. A depositioncan be used in lieu of testimony under the following situa-tions:
1. Whenever the deponent is an adverse party;2. When the deponent is a nonparty who lives more than
150 miles from the place of trial;3. When the deponent is a nonparty who is unavailable to
testify or if exceptional circumstances exist;4. When it is a videotaped deposition of a treating or con-
sulting physician or any expert, and the right to usethe deposition was reserved in the notice of taking depo-sition.
SPECIAL TYPES OF DEPOSITIONS
The Deposition upon Written QuestionsDepositions upon written questions are authorized and
regulated by CCP § 2028. This type of deposition is noticedin much the same way as an oral deposition under CCP §2025. However, since the parties must have time to submitquestions and pose objections to the questions, the time forgiving notice is considerably longer than the oral deposi-tion. The time limits, the content of the notice, and the pro-cedures for objecting to the deposition or to deposition questionsare set out in CCP § 2028.
Oral Depositions in Another State or Foreign NationBecause of the geographical limits on where the deposi-
tion can be taken, it is sometimes necessary to take a depo-sition in another state or even in a foreign nation. Theprocedures for doing this are authorized and regulated byCCP §§ 2026 and 2027. If the deponent is a party, the party’sattendance at the deposition is compelled in the same wayas if the deposition were scheduled within the state, i.e.,notice of the taking of the deposition. If the witness is anonparty, then the attorney must refer to the laws of thestate or the foreign nation where the deposition is to be taken.It is common to consult an attorney in the state where thedeposition is to be taken.
Commissions, Letters Rogatory, and Letters of RequestTo facilitate the taking of depositions outside California,
the court in which the action is pending has the authority toissue commissions, letters rogatory, or letters of request. Theseare statements from the forum court declaring that a depo-sition is necessary and may include directions for takingthe deposition. Such documents can be presented to the court
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CHAPTER 10 INTERROGATORIES
■ Interrogatories in California are primarily regulated by Code of Civil Procedure § 2030.
■ Motions to Compel are also regulated by Rule 335 of the California Rules of Court.
■ Judicial Council form interrogatories are available for optional use.
■ The number of specially prepared interrogatories is limited to thirty-five, absent a specialdeclaration.
INTERROGATORIESSection 2030 of the California Code of Civil Procedure
regulates the use of interrogatories in California actions. Inmany respects section 2030 is similar to Rule 33 of the FederalRules of Civil Procedure. CCP § 2030 does contain the fol-lowing specific provisions:
Judicial Council FormsParties may use standard form interrogatories that have
been developed and approved by the Judicial Council foruse in certain kinds of cases. Forms exist for personal in-jury and contract actions, unlawful detainer actions andmunicipal court actions (or limited civil cases). Forms alsoexist for family law cases. Figure 10-1 is a copy of the forminterrogatories appropriate for personal injury and contractactions. The Judicial Council form interrogatories are notexclusive. In lieu of or in addition to the form interrogato-ries parties can draft their own questions. These are referredto as specially prepared interrogatories.
Service of InterrogatoriesThe plaintiff may serve interrogatories ten days after service
of the complaint or anytime after the appearance of the de-fendant, whichever occurs first. The defendant may serveinterrogatories on the plaintiff at any time (CCP § 2030(b)).Parties are served through their attorneys. Service is usu-ally accomplished by first class mail, with copies sent to allattorneys in the action.
Number of InterrogatoriesCCP § 2030 limits the number of questions or interroga-
tories which may be served on another party. A party mayuse any number of Judicial Council form interrogatories.However, the number of specially prepared interrogatoriesis limited to thirty-five, unless the propounding party showsa need for additional questions by attaching a declarationfor additional discovery to the interrogatories. The formatfor this declaration is found in CCP § 2030. If the declara-tion is not attached and the set of interrogatories containsmore than thirty-five questions, the responding party needonly answer the first thirty-five interrogatories. (CCP § 2030(c)) The thirty-five questions need not be asked in the sameset. Multiple sets may be served.
In addition to the thirty-five specially prepared questions,a party is permitted to serve supplemental interrogatories.Supplemental interrogatories are those that specifically askfor information, acquired after interrogatories have beenanswered, that would update or change any prior answers.Such questions are not included in the thirty-five questionlimit (CCP § 2030(c)(8)).
Continuing InterrogatoriesAlthough supplemental interrogatories are allowed, Cali-
fornia does not permit the use of continuing interrogatories.Continuing interrogatories are those which require the re-sponding party to automatically update prior answers withlater acquired information (CCP § 2030(c)(7)).
Limited Civil CasesInterrogatories in limited civil cases are regulated by Section
94 of the Code of Civil Procedure. This section refers toand incorporates CCP § 2030 with some notable exceptions.The total number of interrogatories, demands to producedocuments, and requests for admissions cannot exceed thirty-five combined. Furthermore, if additional discovery is de-sired, the propounding party must make a motion or obtaina stipulation from the other party. The party cannot simplyattach a declaration for additional discovery.
DRAFTING INTERROGATORIES
Format and Content of the InterrogatoriesThe format for interrogatories in California will depend
on whether or not the Judicial Council Forms are used. Ifthe Judicial Council forms are used, you simply fill in theblanks, primarily the caption, and check the boxes in frontof the questions you want answered. If specially preparedinterrogatories are used, a different format is used. The in-terrogatories should contain the same caption that appearson the pleadings, including the docket number. The docu-ment should also be titled. The code also requires that inthe first paragraph immediately below the title of the case,the following information should appear: the name of thepropounding party, the set number, and the identity of theresponding party (CCP § 2030(c)(4)). Rule 331 of the Cali-fornia Rules of Court requires the same information for any
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Figure 10-1 Judicial Council Form Interrogatories
continued
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Figure 10-1 Judicial Council Form Interrogatories (continued)
continued
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Figure 10-1 Judicial Council Form Interrogatories (continued)
continued
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Figure 10-1 Judicial Council Form Interrogatories (continued)
continued
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Figure 10-1 Judicial Council Form Interrogatories (continued)
continued
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Figure 10-1 Judicial Council Form Interrogatories (continued)
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Figure 10-1 Judicial Council Form Interrogatories (continued)
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Figure 10-1 Judicial Council Form Interrogatories (continued)
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supplemental or further sets of interrogatories. The ques-tions may be preceded by instructions and definitions. However,the code does not allow any instructions other than thosethat appear in the Judicial Council forms. Furthermore ifdefinitions are used, then any time the defined term appearsin the interrogatories, it must be capitalized (CCP § 2030(c)(5)).Care must also be taken in drafting the actual questions. Toeliminate a resourceful drafter’s circumventing the thirty-five question limit by using questions that have multiplesubparts, the code mandates that specially prepared inter-rogatories not contain subparts nor be a compound, con-junctive or disjunctive question. (Although the Judicial Councilforms do contain compound and conjunctive questions (CCP§ 2030(c)(5)). A set of specially prepared interrogatories isillustrated in Figure 10-2.
FilingInterrogatories in California are not filed with the court.
The propounding party is required to retain the original ques-tions and the original answers until six months after the finaldisposition of the case (CCP § 2030(j)).
Motion to CompelIf a responding party fails to respond to any interroga-
tories, then the propounding party must make a motion tocompel answers. This motion can be made at any time. If aresponding party responds to interrogatories, but gives anincomplete answer or poses an improper objection, then, unlessthe parties can resolve the issue, the propounding party mustmake a motion to compel further answers to interrogato-ries. A motion to compel further answers to interrogatoriesis regulated by CCP § 2030 and by Rule 335 of the Califor-nia Rules of Court. Section 2030 requires that a motion forfurther responses must be made within forty-five days ofthe date of service of the original response, unless the par-ties have extended that time in writing. Rule 335 requiresthe following:
1. The written motion must be accompanied by a sepa-rate document that sets forth each interrogatory to whichfurther response is requested, the answer that was given,and the legal and factual reasons for compelling fur-ther responses. Material cannot be incorporated by ref-erence.
2. The moving papers must identity the controverted in-terrogatories by set number.
3. If the response to a particular interrogatory is depen-dent on the response given to another question, thatother question and answer must be set forth.
4. If pleadings or other documents in the file are relevantto the motion, they must be summarized in the movingpapers.
This separate statement is in addition to the notice of motion,memorandum of points and authorities, and declaration insupport of motion. The California code also requires thatwhen any dispute regarding discovery requests occurs, theattorneys must try to settle the matter prior to making any
motion. A declaration to that effect must also accompanythe moving papers.
DRAFTING RESPONSES TOINTERROGATORIES
Time LimitsThe time to respond to interrogatories in California is
thirty days from the date of service, although the partiesmay agree in writing to extend this time. Unless the writtenagreement expressly provides to the contrary, an agreementto extend time includes the right to object as well as to an-swer (CCP § 2030(i)). If a timely response to interrogato-ries is not made, the responding party may lose his right toobject (including work product objections). If a party hasnot filed a timely response and wants to object to a ques-tion, that party must make a motion with the court to allowan objection rather than an answer (CCP § 2030(k)).
Answering InterrogatoriesIt is not necessary in California to restate the interroga-
tory in the responses. Neither is there a duty to supplementanswers in California, unless specific follow-up interroga-tories are served.
Using Business Records Instead of a Written ResponseWhere answers to the interrogatories would require a
compilation or summary of documents, CCP § 2030 allowsa responding party to identify and allow inspection of docu-ments which contain answers to questions. (CCP § 2030(f))However, this right may be lost if responses to the inter-rogatories are not serve in a timely fashion (CCP § 2030(k)).
Objecting to InterrogatoriesAny objections to interrogatories of responses that con-
tain objections must be signed by the attorney for the re-sponding party. (CCP § 2030(g)) If only part of a questionis objectionable, the nonobjectionable part should be an-swered. When objecting, reasons for the objection shouldbe stated.
SignaturesThe party responding to the interrogatories should sign
the answers under oath. An attorney must also sign if theresponse contains any objections.
Amending AnswersWithout leave of court, a party can amend or supplement
answers to interrogatories with later discovered informationor information inadvertently omitted. At trial, the propoundingparty can refer to the original answers, and the respondingparty can refer to the amended answers unless a court or-ders otherwise.
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Figure 10-2 Specially Prepared Interrogatories
continued
Tonya DeLeonAttorney at LawCalif. State Bar No. 11113103 North First St.San Jose, California, 95110(408) 555-1222
Attorney for Plaintiff
IN THE SUPERIOR COURT OF CALIFORNIACOUNTY OF SANTA CLARA
MARILYN MASON, )) No.12345
Plaintiff )) FIRST SET OF INTERROGATORIES
vs. ) PROPOUNDED TO DEFENDANT) MERCHANT’S GROCERY BY PLAINTIFF
MERCHANT’S GROCERY, et al., ))
Defendants. )
PROPOUNDING PARTY: Plaintiff, MARILYN MASON
RESPONDING PARTY: Defendant, MERCHANT’S GROCERY
SET NUMBER: ONE
Pursuant to Code of Civil Procedure Section 2030, Plaintiff, MARILYN MASON, requests that defendant
MERCHANT’S GROCERY answer the following interrogatories under oath within thirty (30) days from
date of service.
1. State any other names by which you have been known.
2. Prior to the date of injury alleged in the complaint, how many times have you been in the grocery
store that is the subject of this lawsuit?
3. Give the dates or approximate dates of any times you were in Merchant’s Grocery Store in the
month immediately preceding the date of injury alleged in the complaint.
1Interrogatories
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Figure 10-2 Specially Prepared Interrogatories (continued)
4. Have you ever made any complaint to any employee of Merchant’s Grocery Store regarding the
condition of the premises?
5. If your answer to question 4 is in the affirmative, please describe the substance of your complaint.
6. If your answer to question 4 is in the affirmative, please identify the employee to whom you
made the complaint.
Dated: ___________________________ ________________________________________Tonya DeLeonAttorney for Plaintiff
2Interrogatories
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CHAPTER 11 PHYSICAL AND MENTAL EXAMINATIONS
■ CCP § 2032 regulates physical and mental examinations as a discovery tool in California.
■ The defendant in a personal injury lawsuit has the right to demand a physical examination ofthe plaintiff who claims injuries.
■ All other physical exams and all mental exams must be arranged by stipulation or ordered bythe court.
■ Valuable information about licensed physicians in California can be found on the Internet at:www.medbd.ca.gov
KEY POINTS
THE PHYSICAL AND MENTALEXAMINATIONS
The physical and mental examinations as a discovery toolare regulated in California by section 2032 of the Code ofCivil Procedure. Like the federal rule, this section permitsthe examination of any party, agent of a party, or person incustody or legal control of a party, in any action in whichthe mental or physical condition of that party is in contro-versy. The California statute establishes two procedures forimplementing this discovery device, depending on the typeof action. Where the action is one for damages for personalinjuries, the defendant has a right to demand a physical exam(but not a mental exam) of the plaintiff claiming those inju-ries. No prior court order or motion is required. In all othercases, a physical or mental examination must be by stipula-tion or by court order.
The Demand for a Physical ExaminationIn an action for personal injuries, any defendant can de-
mand one physical examination of the plaintiff, as long asthe exam does not include any diagnostic test or procedurethat is painful, protracted, or intrusive. It must also be con-ducted at a location within seventy-five miles of the resi-dence of the examinee (CCP § 2032(c)(2)).
This discovery device is implemented by the defendantserving a written demand for physical examination. The demandcan be served at any time after the defendant has been servedor has appeared in the action. The written demand must specifythe time, place, manner, conditions, scope, and nature ofthe examination, as well as the identity and specialty of theexamining physician (CCP § 2032(c)(2)). A copy of the de-mand should be served not only on the plaintiff (throughthe attorney) but on all other parties. The demand should beserved at least thirty days prior to the date scheduled for theexamination (CCP § 2032(c)(3) and (4)).
Response to the Demand for Physical ExaminationPlaintiffs are required to serve a written response to the
demand, stating either that they will comply with the de-mand, will comply as specifically modified, or will refuse.If plaintiffs refuse to comply, the reason for the refusal mustbe stated. The response is required to be served within twentydays of the date of service of the demand. Failure to re-spond in writing constitutes a waiver by the plaintiff of anyobjection to the demand, although the plaintiff can file amotion in court to be relieved from that waiver. If the plain-tiff refuses to comply with the demand, then the defendantmust make a motion to compel the examination. Likewise,if the plaintiff has modified the terms of the demand (e.g.,limited scope of examination), and the defendant disagreeswith those modifications, a motion to compel must be made(CCP § 2032(c)(5) and 6)).
Retention of Demand and ResponseLike all discovery requests (other than motions) and re-
sponses, the original demand and response for the physicalexamination, along with the proofs of service are retainedby the propounding party until six months after the finaldisposition of the action (CCP § 2032(c)(8)).
FILING A MOTION FOR COMPULSORYEXAMINATION
All mental examinations and all physical examinations,other than those just described, must be set either by stipu-lation or by court order. Any physical or mental exam canbe arranged by written agreement among the parties (CCP§ 2032(e)). If no agreement can be reached, a court order isneeded. The court order is obtained by making the propermotion. The motion must specify the time, place, manner,conditions, scope and nature of the examination, as well asthe identity and specialty of the examiner. The motion mustalso be accompanied by a declaration stating facts showingreasonable and good faith attempts to arrange for the ex-amination by agreement (CCP § 2032(d)).
KEY POINTS
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REQUIREMENTS FOR GRANTING THEMOTION FOR A COMPULSORYEXAMINATION
Evidence of Good CauseUnder CCP § 2032(d), the court is empowered to grant
the motion only if good cause is shown. The code furtherrequires that if the place of examination is to be more thanseventy-five miles from the residence of the person to beexamined, the demanding party must show good cause torequire the examinee to travel that distance. The demandingparty will also probably be required to pay reasonable ex-penses and costs to the examinee for travel to the place ofexamination. Additionally, as with all discovery motions,the moving party must include a declaration that the attor-neys have made a good faith attempt to arrange an exami-nation by agreement (CCP § 2032(d)).
If the court grants a motion, the order must specify theperson who may perform the examination, the time, place,manner, diagnostic tests and procedures, conditions, scope,and nature of the exam (CCP § 2032(d)).
THE PARALEGAL’S ROLE IN PHYSICALAND MENTAL EXAMINATIONS
The California statute permits the attorney for the exam-inee or that attorney’s authorized representative to attend
and observe a physical examination conducted for discov-ery purposes and to record stenographically or by audio tapeany words spoken to or by the examinee during any phaseof the examination. The observer cannot participate in ordisrupt the examination. However, they can terminate theexam if unauthorized tests are conducted. As a paralegal,you might be asked to do this. The right to observe an ex-amination does not normally extend to mental examinations.However, the examiner and examinee have the right to recorda mental examination on audio tape. You might be asked toarrange this (CCP § 2032(g)).
SanctionsSanctions imposed for noncompliance with the orders
regarding physical and mental examinations are the samefor noncompliance with any discovery order (CCP § 2023).
Distributing the Medical RecordsCalifornia law permits the party being examined to de-
mand a copy of the medical report resulting from that ex-amination, as well as any reports from prior examinationsfor the same condition. In exchange, the party being exam-ined must give copies of all of its medical reports regardingthe same condition (CCP § 2032(h), (i), and (j)).
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CHAPTER 12 REQUEST FOR DOCUMENTS
■ CCP § 2031 regulates the demand for production and inspection of documents and thingsin California.
■ The demand for production can be used against parties only in California.
■ Special provisions apply when consumer or employment records are the object of discovery.
■ Documents can sometimes be discovered through use of depositions or interrogatories.
KEY POINTS
THE REQUEST FOR DOCUMENTSA request or demand to inspect documents, tangible things,
land or other property in the possession or under the con-trol, of a party is controlled by CCP § 2031. Just as in thefederal court, this is not the only method of obtaining docu-ments. Documents can also be obtained through the deposi-tion process as was discussed in Chapter 9 (see CCP §§2020 and 2025). If documents are in possession of a non-party, the deposition is the only method available. At times,documents can also be produced in response to interrogato-ries, as was discussed in Chapter 10 (see CCP § 2030(f)(2)).
Request for Documents to PartiesIn state actions the request for inspection of documents
is referred to as a demand for inspection of documents. Ab-sent a court order to the contrary, the plaintiff can serve ademand for production of documents ten days after serviceof the summons or appearance by the defendant, whicheveris first. A defendant can serve the demand at any time (CCP§ 2031(b)). The time for production of documents cannotbe less than thirty days after service of the demand. A courtmay shorten or lengthen any of these times.
Organization of the DocumentsThe documents may be produced either as they are kept
in the usual course of business or according to the catego-ries specified in the document request (CCP § 2031(g)(1).The California code further provides that any data compila-tions must be put into reasonable usable form. For example,if information is stored on a computer disk that requires apassword to access, production of the disk without the pass-word would not be in compliance with the code.
PROTECTION OF DOCUMENTSA party seeking to protect documents from being inspected
may do so in one of two ways, by serving a written objec-tion to the demand (CCP § 2031(g)) or by making a motionin court for a protective order (CCP § 2031(f)). As in fed-eral court, the basic objections are that the documents areirrelevant or privileged. A party can also object on the basis
that the production of documents causes annoyance, embar-rassment, oppression, or undue burden and expense (CCP §2031(f)). In addition to the privileges mentioned in the text,an important one to consider in California is the one relat-ing to trade secrets or other confidential research, develop-ment or commercial information. Protective orders can alsorelate to the time, place, or conditions of inspection.
REQUESTING THE PRODUCTION OFDOCUMENTS
Form and Content of the DemandThe form and content of the demand is set forth in CCP
§ 2031(c). The demand for inspection is usually preparedon pleading paper and bears the same caption as the plead-ings. The name of the document would appear to the rightof the title of the case, i.e., Demand for Inspection of Docu-ments. In the first paragraph, immediately below the title ofthe case must appear the identity of the demanding party,the set number and the identity of the responding party. Theintroductory paragraph also describes when and where thedocuments are to be produced for inspection and copying.A demand for inspection may or may not include defini-tions or instructions. The demand should also include thedate for production (which must be at least thirty days afterthe date of service of the demand), as well as a descriptionof any tests intended to be conducted on the items to beproduced. The demanding party must also disclose if theitem will be altered or destroyed.
Each document demanded must be separately set forthand the documents specifically described by individual itemor category. Figure 12-1 is an example of a demand for pro-duction of documents that might be used in the Dieter case,were the action in state court.
Service of the DemandCopies of the demand for inspection must be served on
all parties to the action. The original demand and proof ofservice and the original response are not filed in court butare retained by the demanding party until six months afterthe final disposition of the case (CCP § 2031(d) and (k)).
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Figure 12-1 Demand for Production of Documents
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Giacomo StriuliCalif. State Bar No. 12121Striuli, Grazak, and UsalisAttorneys at Law2233 Hamilton AvenueMenlo Park, California(415) 555-1212
Attorney for Plaintiff, Dieter Financial Bank
IN THE SUPERIOR COURT OF CALIFORNIACOUNTY OF SAN FRANCISCO
DIETER FINANCIAL BANK, )Plaintiff, ) No. 77976
)) DEMAND FOR PRODUCTION
vs. ) OF DOCUMENTS))
HAUBRICH INDUSTRIES, et al., )Defendants. )
DEMANDING PARTY: Plaintiff, DIETER FINANCIAL BANK
RESPONDING PARTY: Defendant, HAUBRICH INDUSTRIES
SET NUMBER: ONE
Pursuant to section 2031 of the Code of Civil Procedure, plaintiff Dieter Financial Bank demands
that defendant Haubrich Industries produce the documents described below on December 15, 2000, at
10:00 a.m. at the offices of Striuli, Grazak, and Usalis, Attorneys at Law, 2233 Hamilton Avenue, Menlo
Park, California.
DEFINITIONS AND INSTRUCTIONS(as set forth in Figure 12-3 in text)
1Demand for Production of Documents
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Figure 12-1 Demand for Production of Documents (continued)
DOCUMENTS REQUESTED(as set forth in Figure 12-3 in text)
Dated: September 29, 2000
Striuli, Grazak, and Usalis
BY______________________________Giacomo StriuliAttorney for Plaintiff
2Demand for Production of Documents
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CHAPTER 12 ADDENDUM
INSPECTION OF PROPERTYCCP § 2031 permits not only the inspection and copying
of documents, but also authorizes inspection of tangible things,land, or other property in the possession, custody, or con-trol of a party. The procedures used for demanding inspec-tion of real or personal property are identical to the procedurefor demanding inspection of documents. In addition to in-specting the property, a party may also be allowed to mea-
sure, survey, photograph, test, or sample the land or propertyor any designated object or operation on it (CCP § 2031(a)(2)).In the demand to inspect, the demanding parties must specifyany activity they plan on conducting on the property andwhether that activity will permanently alter or destroy thething involved. (CCP § 2031(c)(4)) If the responding partydoes not agree to the activity, they must either object or makea motion for a protective order (CCP § 2031(f) and (g)).
Consumer and Employment RecordsIf consumer or employment records are the subject of
the demand, the consumer or employee is entitled to priornotice of the demand in compliance with CCP § 1985.3 and1985.6. Proof of this notice must be served with the de-mand to produce (see Chapter 9).
RESPONDING TO A REQUEST FORDOCUMENTS
California law requires a written response to the demandfor production or inspection of documents, in addition tothe actual production. The written response, which is to beserved within thirty days of service of the demand, indi-cates whether the responding party will comply with thedemand, will comply in part, cannot comply, or objects (CCP§ 2031(g)). If the responding party states that he or she isunable to comply, the response must affirm that a diligentsearch and reasonable inquiry has been made in an effort tocomply with the demand. The responding party must alsospecify whether the inability to comply is because the itemnever existed, has been destroyed, lost, misplaced, or sto-len, or has never been, or is no longer in the possession,custody, or control of the responding party. Furthermore ifthe document is known or believed to be in the possessionof another person, that person’s name and address must begiven. If a party objects to any demand, the response mustidentify with particularity the document to which an objec-tion is being made and the specific ground for the objection(CCP § 2031(g)).
Format of ResponseThe format of the response resembles that of the demand,
retaining the same caption. Each statement of compliance,each representation and each objection must bear the samenumber and be in the same sequence as the correspondingitem in the demand. The text of the demand need not berepeated (CCP § 2031(g)). The response is signed under oathby the party to whom it is directed. If the response containsonly objections, it can be signed by the attorney for the party.
Motions to Compel Regarding the Written ResponseIf no written response is made to the demand for inspec-
tion within thirty days, the demanding party can make a motionto compel that response under CCP § 2031(l) and Rule 335of the Rules of Court. By failing to make a timely response,the responding party may lose the right to object to any de-mand unless a court excuses that failure to respond. Mo-tions in respect to the written response can also be made onthe following grounds:
1. The written response indicates that compliance will beincomplete;
2. The written response contains a representation of in-ability to comply that is inadequate, incomplete, or evasive;
3. The written response contains objections that are withoutmerit or are too general.
In such cases, the demanding party moves for an ordercompelling further response. Notice of this type of motionmust be given within forty-five days of service of the re-sponse unless the parties have stipulated in writing to an-other date (CCP § 2031(m)).
Motions in Respect to the ProductionIf a party fails to permit inspection of the documents in
accordance with the written response that was served, thedemanding party can make a motion to compel complianceunder CCP § 2031(n).
Format of Motions to CompelMotions to compel are regulated by the sections of the
code that regulate motions in general ((CCP § 1003 et seq.).Rule 335 of the California Rules of Court also regulates theformat of motions to compel. The motion consists of a no-tice of motion, supporting declarations (which must includea declaration that the attorneys have tried to resolve the matter)and a memorandum of points and authorities. In addition,Rule 335 requires a separate document setting forth eachitem or category of items requested, question, or documentto which further response or production is requested, and thefactual and legal basis for requiring an additional response.
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CHAPTER 13 REQUEST FOR ADMISSIONS
■ CCP § 2033 regulates requests for admissions in California.
■ Matters admitted are deemed proven for trial.
■ Failure to respond to requests for admissions results in the admissions being deemed admittedonly if the requesting party makes an appropriate motion.
KEY POINTS
THE REQUEST FOR ADMISSIONSIn California, requests for admissions are regulated by
CCP § 2033, which is similar to the federal rule regulatingrequests for admissions.
Requests for admissions can be served by the plaintiffany time that is ten days after service of the summons on orappearance by that party. The defendant can serve requestsat any time (CCP § 2033(b)). Like all discovery requests inCalifornia, the original requests for admissions and responsesare not filed in court. Rather, they are retained by the pro-pounding party until six months after the final dispositionof the case (CCP § 2033(j)).
The number of requests for admissions, except for thoserelating to the genuineness of a document, is limited. A partyhas a right to request admissions to thirty-five matters. Thethirty-five requests need not be in the same set of requests.As with interrogatories, if a party wishes to request addi-tional admissions, that party may do so provided that a dec-laration for additional discovery is served along with therequest for admissions. The responding party must then ei-ther respond to the additional requests or move for a pro-tective order (CCP § 2033(c)). The number of requests foradmission of the genuineness of documents is not limitedexcept as justice requires to protect from unwarranted an-noyance, embarrassment, oppression, or undue burden andexpense. If the case is a limited civil case, under the rulesof economic litigation then the number is further limited.The total combined number of interrogatories, requests foradmissions, and demands to inspect or produce cannot ex-ceed thirty-five (CCP § 94)).
Use of the Request for AdmissionsTo make requests for admissions a more effective dis-
covery tool, they are often used in conjunction with inter-rogatories. Interrogatories can be sent either with the requestfor admissions or as a follow up, asking the party to stateall facts upon which they based any denial to a request foradmissions. Since this question is included in the JudicialCouncil form interrogatories, it need not be counted in thethirty-five question limit. The only limitation in doing thisis that the interrogatory cannot be included in the same docu-ment as the request for admission. It must be separately setforth (CCP § 2033(c)(7)).
Advantages to the Request for AdmissionsUnless a court orders otherwise, once a matter has been
admitted by a party it is considered proven for trial (CCP §2033(n)). However, in California, the failure of a party torespond does not automatically result in the matter’s beingdeemed admitted. If the responding party fails to respondto questions, the propounding must make a motion in courtto have that matter be deemed admitted. If a proper responseto the request for admissions is served prior to the hearingon the motion, the court will not order the matters deemedadmitted. Even though a responding party can easily defeatsuch a motion, the code does provide for mandatory sanc-tions against a party or attorney whose failure to respondresulted in the motion. Also, unless the court finds the fail-ure to respond excusable, the responding party may havewaived any rights to object to questions by failing to re-spond on time (CCP § 2033(k)).
DRAFTING THE REQUEST FORADMISSIONS
Judicial Council FormThe Judicial Council has approved a form that can be
used for requests for admissions. The use of this form isoptional (see Figure 13-1).
Form and Content of the Request for AdmissionsIf the Judicial Council form is not used, the form and
content of the request is regulated by CCP § 2033(c). Thecaption and introductory paragraph resemble interrogatoriesand demands for inspection. Immediately below the title ofthe case appears the identity of the party requesting the ad-missions, the set number and the identity of the respondingparty.
A request for admissions may contain definitions of terms.However, the code requires that any specially defined termmust be typed in capital letters wherever that term appearsin the document (CCP § 2033(c)(5)). No preface or instruc-tion can be included unless it has been approved by the Ju-dicial Council.
Each request for admission must be separately set forthand identified by letter or number. Each request must also befull and complete in and of itself and cannot contain sub-
SAMPLE
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Figure 13-1 Judicial Council Form Request for Admissions
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parts, or be compound, conjunctive, or disjunctive (CCP §2033(c)(4) and (5)). For an example of how the request foradmissions in the text might look if the action were in aCalifornia court, see Figure 13-2.
RESPONDING TO THE REQUEST FORADMISSIONS
Unless the parties have agreed otherwise or unless a priorcourt order has been obtained, a response to the request foradmissions must be served on the propounding party withinthirty days of service of the request (keeping in mind theprovisions of CCP § 1013 that all times to respond are ex-tended if service is made by mail). In California, the re-sponse must be signed and verified by the responding partyunless it contains only objections. In that case, the attorneyfor the party should sign the response (CCP § 2033(g)).
Alternative Responses to a Request for AdmissionsIn California, a party can respond to a request for admis-
sions by admitting, denying, failing to admit for lack of in-formation or knowledge, or objecting.
If the responding party lacks information or knowledgeto respond to a request, the responding party must state inthe answer that a reasonable inquiry concerning the matterhas been made and the information known or readily ob-tainable is insufficient to enable that party to admit the matter.
If an objection is made, the grounds for that objectionshould be stated. If only part of a request is objectionable,the responding party must answer the remainder of the re-quest (CCP § 2033(f)).
Objections to the Request for AdmissionsThe same objections that are available in response to the
other discovery techniques are available in response to therequest for admissions. Additionally, just as with interroga-tories, if a request for admissions contains more than thirty-five questions without the necessary declaration for additionaldiscovery, the responding party need only answer the firstthirty-five. The responding party can object to any furtherquestions (CCP § 2033(c)). Since compound requests arespecifically prohibited in California, an objection to such arequest would be proper (CCP § 2033(c)(5)).
CHAPTER 13 ADDENDUM
MOTIONS REGARDING ADMISSIONS
Motion for Protective OrderRather than responding to any request for admissions,
the responding party can immediately move the court for anorder limiting the requests. The court may make any orderthat justice requires to protect a party from unwarrantedannoyance, embarrassment, oppression or undue burden andexpense (CCP § 2033(e)). As with most discovery motions,the court expects the attorneys to try to resolve their differ-ences and a declaration to this effect must accompany themotion.
Motion for Order that Matters Be Deemed AdmittedIf the responding party fails to serve a timely response,
the requesting party can make a motion to have the mattersdeemed admitted. This motion was discussed above.
Motion to Compel Further ResponseIf the response contains incomplete or evasive answers
or an objection that is without merit, the requesting party
can make a motion to compel further response. Notice ofthis motion must be given with forty-five days of the ser-vice of the response (or later date if agreed in writing bythe parties). Failure to file a timely motion results in a waiverof any objections to the response. Again a declaration indi-cating that the attorneys have made an attempt at an infor-mal resolution must be attached to the motion (CCP § 2033(l)).
Motion to Amend or Withdraw an AdmissionIf the court finds that an admission was the result of mis-
take, inadvertence, and excusable neglect and that the partywho obtained the admission will not be substantially preju-diced, then the court has the power to allow an amendmentor withdrawal of that admission (CCP § 2033(m)).
Motion to Recover Expenses Incurred in Proving MattersNot Admitted
If a party denies a matter in a request for admissions andthat matter is proven at trial, the court has the power to awardthe cost of proving the matter denied, including attorneys’fees (CCP § 2033(o)).
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Figure 13-2 Request for Admissions
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KENT, FRIEDMAN, HEDGES, AND COLEAttorneys at LawCalif. State Bar No. 1212215490 Avenida RoyaleSan Mateo, California(415) 555-1212
Attorney for Plaintiff, Dr. Maria Alvarez
IN THE SUPERIOR COURT OF CALIFORNIACOUNTY OF SAN MATEO
MARIA ALVAREZ, )Plaintiff, ) No. 31753
) FIRST SET OF REQUEST) FOR ADMISSIONS OF TRUTH
vs. ) OF FACTS AND GENUINENESS OF) DOCUMENTS PROPOUNDED TO) DEFENDANT WYANDOTT-VON
WYANDOTT-VON MAITLIN, et al., ) MAITLIN AND ERNST WEISSLERDefendants ) BY PLAINTIFF MARIA ALVAREZ
PROPOUNDING PARTY: Plaintiff, MARIA ALVAREZ
RESPONDING PARTY: Defendants, WYANDOTT-VON MAITLIN and ERNSTWEISSLER
SET NUMBER: ONE
Pursuant to section 2033 of the Code of Civil Procedure, plaintiff Maria Alvarez requests that within
30 days after service of this Request for Admissions, defendants Wyandott-Von Maitlin and Ernst Weissler
admit the truth of the following:
1. That the document labeled Exhibit A and attached hereto was prepared by an officer or employee
of Wyandott during the existence of his or her employment with Wyandott.
1Request for Admissions
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Figure 13-2 Request for Admissions (continued)
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2. That the document labeled Exhibit B and attached hereto was prepared by an officer or employee
of Wyandott during the existence of his or her employment with Wyandott.
3. That the document labeled Exhibit C and attached hereto was prepared by an officer or employee
of Wyandott during the existence of his or her employment with Wyandott.
4. That Wyandott is incorporated under the laws of the state of Delaware and has its principal place
of business in Seattle, Washington.
5. That Wyandott is, and was during the calendar years of 1989–1992, engaged in the manufacture
and sale of Biomiocin.
6. That the Food and Drug Administration banned the manufacture and sale of Biomiocin on or
about September 9, 1991.
7. That Biomiocin has not yet been reclassified as a safe drug by the FDA.
Pursuant to section 2033 of the Code of Civil Procedure, plaintiff Maria Alvarez requests that within
30 days after service of this Request for Admissions, defendants Wyandott-Von Maitlin and Ernst Weissler
admit that the original of each of the following documents, copies of which are attached, is genuine:
1. Alvarez employee evaluation of September 9, 1999, attached at Exhibit A.
2. Alvarez employee evaluation of October 31, 1999, attached as Exhibit B.
3. Alvarez employee evaluation of January 19, 2000, attached as Exhibit C.
Dated: March 27, 2000 Kent, Friedman, Hedges, and Cole
BY __________________________________
2Request for Admissions
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PART IV PRETRIAL, TRIAL, AND POSTTRIAL
CHAPTER 14 SETTLEMENTS, DISMISSALS, AND ALTERNATIVE DISPUTERESOLUTION
■ Either party can make a statutory offer to settle a case under CCP § 998.
■ When a case settles, a dismissal with prejudice should be filed.
■ If a summons and complaint are not served within three years of the commencement of theaction the case can be dismissed.
■ If a case is not brought to trial within five years of the commencement of the action, the casecan be dismissed.
■ Attempts to resolve cases usually include the various methods of ADR.
KEY POINTS
THE SETTLEMENTIn an action for money damages, a case usually settles
when the defendant agrees to pay the plaintiff a set amountof money. Most often, this agreement requires that the moneybe paid in a lump sum. However, two other types of settle-ment agreements can also occur, the structured settlementand the sliding scale settlement.
A structured settlement, which sometimes occurs in caseswith extensive damages and ongoing medical expenses, in-volves installment payments over a period of years (oftenthe lifetime of the plaintiff) in addition to a lump sum paidat the time of settlement. Commonly, an annuity is purchasedto guarantee that payment is made. Settlement agreementsinvolving this type of settlement are obviously very com-plex and must be very carefully drafted and reviewed.
A second type of settlement is the sliding scale recoveryagreement, which is defined in CCP § 877.5. A sliding scalerecovery agreement involves tort cases where there are multipledefendants and the plaintiff has reached a settlement withsome, but not all, of the defendants. The agreement sets forththe maximum amount of money that the settling defendantwill have to pay, but also provides that this amount may bereduced depending on the amount of recovery from the de-fendants who are not a party to the agreement. If a slidingscale agreement is reached, certain procedural steps mustbe taken. The parties entering must promptly inform the courtof the existence and terms of the agreement. Furthermore,seventy-two hours prior to entering into the agreement, anotice of intent to enter into the agreement must be servedon all defendants who are not a party to the agreement.
SETTLEMENT OFFERS
CCP § 998 Offer to CompromiseIn California, settlement offers can be communicated
formally under CCP § 998. This section not only describesthe method of making the offer, but also establishes conse-quences when a party rejects the offer and fails to get a morefavorable result at trial. At any time, not less than ten daysprior to trial or arbitration, any party may serve an offer inwriting on any other party to allow judgment to be taken inaccordance with terms and conditions stated in the offer. Ifaccepted, the offer and acceptance are filed in court and judg-ment is entered according to the terms and conditions stated.The offer is considered withdrawn if not accepted withinthirty days or the commencement of trial, whichever occursfirst. If an offer has been made and rejected and the partymaking the offer obtains a more favorable judgment at trial,sanctions will usually follow. If a plaintiff rejects a 998 of-fer and recovers less than the offer, the plaintiff is deniedpostoffer costs of suit (even if they are the prevailing partyat trial) and is required to pay defendant’s costs from thedate of the offer. The trial court judge has the discretion toorder plaintiff to pay defendant’s expert fees. If the defen-dant rejects a 998 offer and plaintiff recovers more than theoffer, the defendant can be compelled to pay plaintiff’s ex-pert witness fees that are normally not recoverable as a cost.CCP § 998 does not apply in an eminent domain action.
FormatA CCP § 998 offer to compromise is prepared in the same
general format as any paper which might be filed in court.It is filed in court only if the offer is accepted.
SETTLEMENT AGREEMENTS AND RELEASES
Settlements for Minors or IncompetentsIf one of the parties to the lawsuit is a minor or in com-
petent, court approval of the settlement agreement and at-
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torney fees is usually required. This is referred to as a minor’scompromise. Sections 3500–3612 of the Probate Code setforth the procedure to be followed. The parent or guardianfiles a petition for a minor’s compromise in court. A courthearing is held and the judge reviews the terms and fairnessof the settlement. Rule 241 of the California Rules of Courtfurther requires that the application for court approval con-tains the following information: age and sex of minor orincompetent, nature an extent of injury giving rise to theclaim, facts or events out of which the claim or injury arose,including time, place and persons involved. The rule alsorequires that the person compromising the claim as well asthe minor or incompetent be present at the hearing. The courtalso makes orders concerning the disposition of any moneyawarded to a minor plaintiff.
General ReleaseIn California, a general release does not release claims
which the creditor does not know or suspect to exist at thetime of executing the release, if those claims would havematerially affected the settlement (Civil Code § 1542).
Duty to Notify Court of SettlementRule 225 of the California Rules of Court requires the
parties to notify the court immediately of any settlementand to file the request for dismissal within forty-five daysof the settlement.
DISMISSALS, CONSENT DECREES, ANDDISTRIBUTION OF FUNDS
DismissalsThe primary statute dealing with dismissals in Califor-
nia is CCP § 581. This section provides for dismissals ofcases by the parties or by order of the court. If the dismissalis by act of the parties, a Judicial Council form requestingthe dismissal must be used (see Figure 14-1).
Stipulated DismissalsParties to a lawsuit may stipulate to a dismissal at any
time, on any terms. In such case, if a lawsuit has been filed,a request to dismiss the case with prejudice should be filed.
A particular problem occurs, however, in cases involv-ing multiple defendants, when some but not all defendantssettle. The plaintiff is allowed to dismiss the settling defen-dants from liability on the complaint, but a problem remainswith liability of the settling defendants for potential claimsof contribution or indemnity should a large judgment be awardedagainst the nonsettling defendants. In order to encouragesettlement, California law allows a defendant to settle a caseand be released from all liability on cross-complaints if thesettlement is made in good faith. The determination of whethera settlement is in good faith may require a court hearing.See CCP § 877.6 for a description of this procedure.
Voluntary Dismissal on NoticeCalifornia law allows plaintiffs or complainants to dis-
miss their complaints or cross-complaints, or any part of it,at any time prior to trial, by filing the request for dismissal.Unlike the federal rule, the California code does not requirea motion or notice. However, plaintiffs should serve a copyof the request for dismissal on all parties.
Court-ordered Involuntary DismissalIn California, a court has the power to dismiss a case for
any number of reasons. One reason is that a party has failedto comply with a discovery order and the case is dismissedas a terminating sanction (CCP § 2023). Another reason isthat there has been a delay in the prosecution of the case.Sections 583.110–430 of the Code of Civil Procedure regu-late dismissals for lack of prosecution. These sections oftenresult in mandatory dismissal of cases if the complaint andsummons have not been served within three years of thecommencement of the action (CCP §§ 583.210–250), or ifthe case has not been brought to trial within five years ofthe commencement of the action (CCP §§ 583.310–360)).Other time limits control the trial date where a new trial hasbeen granted after a motion or appeal (CCP § 583.320)).
In addition to the mandatory dismissal sections, other codeprovisions give the court discretion to dismiss a case. Un-der CCP § 583.420, if service is not made within two years,or the action is not brought to trial within three years afterthe action is commenced, the court may dismiss the case.The dismissal of actions for delay of prosecution may bedone by the court on its own motion or on motion of thedefendant.
Trial Delay Reduction Rules (Fast Track)If a case comes under fast track rules, as most cases do,
different time limits apply for serving the summons and com-plaint, and for getting the case to trial. Precise times forservice are controlled by local rules of court, which mustbe set in conformity with Govt. Code § 68616. This sectionallows local courts to reduce the time for service of the com-plaint to no sooner than sixty days after filing. Violatingthese rules might result in sanctions, although it is doubtfulthat dismissal would be the first sanction.
Consent DecreeA consent decree is usually called a stipulated judgment
or consent judgment in California. Section 664.6 of the Codeof Civil Procedure provides that if parties to pending litiga-tion stipulate, in writing or orally before the court, for settlementof the case, the court may enter judgment pursuant to theterms of the settlement.
CCP § 1132 also describes another procedure, confessionof judgment. A judgment by confession can be entered withno prior action having been filed. The defendant must sign,under oath, a statement authorizing the entry of judgment fora specified sum and stating facts that support the judgment.
SAMPLE
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Figure 14-1 Request for Dismissal
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CCP § 664.7 contains special provisions relating to con-struction defect cases. This section allows the stipulationfor judgment to be made through respective counsel wherea party’s contribution is paid through an insurance contract.
ALTERNATIVE DISPUTE RESOLUTION (ADR)The necessity of ADR in the California legal system is
well recognized. Parties to most civil disputes are free tofollow any out-of-court method of dispute resolution that isagreeable. These include use of arbitration, mediation, earlyneutral evaluation, and even hiring private judges. Numer-ous organizations have been established that provide ADRservices to parties for a fee. The providers are often retiredjudges or very experienced attorneys. Court-related ADR isalso common. Court-related ADR involves the use of ADR
in a pending civil case. It is not a complete substitute forthe court action, but rather a way of trying to dispose of theaction without the necessity of trial. These methods, whichcommonly include judicial arbitration and mediation, arenot binding on the parties. Judicial arbitration is court-or-dered arbitration. The courts have the power to order par-ties to submit to arbitration in many cases. While the arbitrationaward is not binding, any party who does not want to acceptit must act to reject it by filing a request for a trial de novowith the court within thirty days. Failure to file this requestmay result in the arbitration award becoming binding. Rules32–33 of the Appendix to the California Rules of Court di-rects trial courts to start coordinating and developing ADRprograms and requires that the court advise the parties ofADR alternatives. CCP § 1775 sets up an ADR pilot projectfor various counties.
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CHAPTER 15 TRIAL TECHNIQUES
■ Attorneys handling civil cases may be required to attend various pretrial conferences includingcase management conferences and mandatory settlement conferences.
■ Written statements must be prepared for most pretrial conferences.
■ Names and requirements for most pretrial conferences are affected by local rules of court.
KEY POINTS
PRELIMINARY PREPARATION FOR TRIAL
Pretrial ConferencesBefore trial, parties are usually required to attend vari-
ous pretrial conferences. Some of these are described in thestate Rules of Court. Others are controlled by local rules.The names of the conferences sometimes vary from one countyto another. Among the more common types of conferencesare case management conferences, arbitration status con-ferences, and settlement conferences.
Case Management ConferencesIn order to supervise cases coming within fast track, many
courts now hold various pretrial conferences, often knownas case management conferences (although some countiesuse different names).
At a case management conference, the court may do anyof the following: establish a discovery schedule, order thecase to arbitration, determine if the case is a limited civilcase, dismiss, or sever fictitious or other unserved defen-dants, schedule a date for exchange of expert witnesses, andset a date for future conferences. Parties attending a casemanagement conference are usually required to completecase management conference questionnaires, which are lo-cal forms. Rule 212 also allows courts to require that par-ties meet and confer, prior to the conference, to discuss thecase. See Figure 15-1 for a copy of a notice of a case man-agement conference.
Arbitration Status ConferenceRule 211 provides that courts having more than three judges
and having a judicial arbitration program shall hold an arbi-tration status conference where suitability for judicial arbi-tration must be determined. Such a conference is not necessaryif the plaintiff elects, or the parties stipulate, that the casebe placed on the arbitration hearing list. These conferencesusually take place before a pretrial or trial setting confer-ence. If it appears at the status conference that the case isready to be tried and that judicial arbitration is not appro-priate, the court can immediately conduct a trial setting orpretrial conference. A separate trial setting or pretrial con-ference date need not be set.
Settlement ConferencesIn addition to the pretrial or trial setting conferences, in
long cause matters (cases taking more than one day to try),settlement conferences are also mandated. A mandatory settle-ment conference usually takes place sometime within thethree weeks prior to trial, depending on local court rules.The attorneys for all parties and the judge try to work out asettlement in the case to avoid the upcoming trial. Writtensettlement conference statements are required. Rule 222 re-quires that no later than five days before the date set for thesettlement conference, each party shall file and serve on eachparty a statement containing a good faith settlement demand,and an itemization of special and general damages, and complywith any additional requirement imposed by local rule. Lo-cal rules may require copies of medical reports or policereports in addition to other information. Local rules mayalso require statements from all parties, not only plaintiffsor cross-complainants.
Jury Request and Deposit of Jury FeesA demand for jury is usually made at the time of the case
management conference. At least twenty-five days prior totrial, a party requesting a jury must deposit a fee with theclerk of the court at least twenty-five days prior to trial.Failure to deposit the jury fees constitutes a waiver of theright to the jury. In such an event, other parties have fivedays in which they can demand the jury (and pay the fees)(CCP § 631)). Parties should also be aware that they mightbe charged a per diem fee for the court reporter.
Jury InstructionsSection 607(a) of the Code of Civil Procedure regulates
the preparation of proposed jury instructions. Although juryinstructions are the ultimate responsibility of the judge,California law requires that each of the parties submit pro-posed instructions to the judge, with copies to the other at-torneys. The code section requires that proposed instructionsbe given to the judge and served on other counsel beforethe first witness is sworn in. Thereafter, additional instruc-tions may be submitted. (In practice, many judges do notask for any proposed instructions until the trial nears comple-tion.) All proposed instructions must be typewritten, eachon a separate sheet of paper. Usually the instructions con-
SAMPLE
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Figure 15-1 Notice of Case Management Conference
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tain a cover sheet containing the caption and identifying theparty submitting the instructions. In drafting the actual in-structions, California attorneys usually rely on a book knownas BAJI (Book of Approved Jury Instructions), which con-tains numerous jury instructions that have been accepted bythe courts. However, an attorney might want to augment theseinstructions with specially drafted ones. In such a case, theproposed instruction should contain a reference to the legalauthority supporting the instruction. If an instruction is foundin BAJI, then referring to the BAJI number suffices. Pro-posed verdict forms should be submitted with the proposedjury instructions.
Cases Exempt from Trial Delay Reduction RulesSpecial rules exist for cases exempt from Trial Delay
Reduction Rules. These cases are required to file an At Is-sue Memorandum when the case is ready for trial (Rule 209).An At Issue Memorandum contains much of the same in-formation found in a case management questionnaire. Sucha case is then placed on the civil active list, a list of all non–fast track cases. Attorneys handling these cases may also berequired to attend various pretrial conferences.
PREPARATION OF WITNESSES
Subpoena of WitnessesTrial subpoenas and subpoenas duces tecum are regulated
by CCP § 1985, and are different from deposition subpoe-nas described in Chapter 9 of this supplement. A subpoenacompelling attendance of a witness is a Judicial Council form.It can be issued by a court clerk, a judge, or by the attorneyof record in the proceeding. A subpoena duces tecum canbe likewise issued. However, a subpoena duces tecum is required
to be accompanied by an affidavit showing good cause forthe production of the matters and things described in thesubpoena. The declaration must specify the exact mattersor things desired to be produced, setting forth in full detailthe materiality to the issues in the case and stating that thewitness has the desired matters or things in his or her pos-session or under his or her control (CCP § 1985(b)). Be-cause of the uncertainty of the actual time of trial, the lawallows a subpoenaed witness to be on standby rather thanhaving to come down to the court and wait for hours or evendays (CCP § 1985.1)).
Under the code, subpoenas can be served by any person(CCP § 1987), and no set time for service is mandated, otherthan that reasonable time to travel or produce records mustbe given (CCP § 1987(a)). However, if consumers’ personalrecords or employment records are subpoenaed, timing ofthe issuance and service of the subpoena become important.CCP §§ 1985.3 and 1985.6 should be consulted. Subpoe-naed witnesses are entitled to a fee and mileage, if demanded(CCP § 1987(a)).
Compelling Attendance of PartiesParties to the action are not obligated to be present at
trial, even though they usually are. If you want to guaranteethe presence of another party, or if you want to compel thatparty to produce documents at the trial, California law pro-vides a method for doing this. CCP § 1987(b) allows anattorney to send written notice to the attorney for the partyrequiring attendance of that party. The notice must be servedat least ten days prior to trial. A party can be required toproduce documents within the same notice, but in such acase, twenty days notice is required. For trials taking placein municipal court, CCP §§ 96–98 should be consulted.
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CHAPTER 16 POSTTRIAL PRACTICE
■ Posttrial motions in state court closely resemble motions in federal court.
■ In superior court, a party has sixty days from the mailing of notice of entry of judgment to filea notice of appeal but only thirty days if the action is in municipal court.
■ After judgment, a defendant’s financial situation can be discovered through the use of anorder of examination.
■ The following websites may provide helpful information regarding a judgment debtor’s assets:
www.knowx.com www.ussearch.com
KEY POINTS
TRIAL AND POSTTRIAL MOTIONSTrial and posttrial motions made in state actions are similar
to those made in federal cases. The types of motions madeusually depend on whether the case is tried before a jury orwhether it is a court trial. In a jury trial, motions might in-clude motions for nonsuit motions for a directed verdict,motions for a judgment notwithstanding the verdict, mo-tions for a new trial, motions to vacate, and motions to taxcosts. In a court trial, motions might include motions forjudgment, motions for a new trial, motions to vacate, andmotions to tax costs.
Entry of JudgmentThe timing for most posttrial motions is often dependent
on when judgment was entered, and when and if notice ofentry of judgment was given to all parties. Entry of judg-ment occurs when the clerk of the court “enters” the judg-ment in the court records (CCP §§ 664, 668, and 668.5).Once a judgment is entered, notice of the entry should begiven to all parties (CCP § 664.5). The notice of entry ofjudgment is sometimes prepared by the prevailing party andsometimes prepared by the clerk of the court. The originalnotice of entry, together with the proof of service, is filedwith the court.
Motion for NonsuitCCP § 581c allows the defendant to make a motion for
nonsuit after the plaintiff has completed an opening state-ment or after the presentation of evidence in a trial by jury.The basis for such a motion is that it appears that the plain-tiff has no case. The granting of such a motion is the sameas a judgment in favor of the defendant.
Motion for a Directed VerdictA motion for a directed verdict is regulated by CCP §
630. Unless the court specifies an earlier time, this motionis made after all the parties have presented their evidence,
but before the case goes to the jury. The motion might bemade in relationship to the entire case or only as to issueswithin a case. In federal court, the motion is now referredto as a motion for judgment as a matter of law.
Motion for a Judgment Notwithstanding the VerdictCCF § 629 allows a party to raise a motion for a judg-
ment notwithstanding the verdict in a jury case tried in statecourt. It is not necessary to make a motion for a directedverdict first. The motion allows a judge to overturn a jury’sfinding and enter a different judgment. In federal court, thismotion is also referred to as a motion for judgment as amatter of law.
Motion for a New TrialCCP §§ 655–662.5 regulate motions for new trial in state
proceedings. The grounds for such a motion, found in CCP§ 657, are basically the same as in federal court. Under CCP§ 659, this motion must be filed within fifteen days of thedate of mailing of notice of entry of judgment by the clerkor within 180 days of the entry of judgment, whichever isearliest. CCP §662.5 contains special provisions where acourt feels that the amount of the jury’s award is either ex-cessive or insufficient. In such cases, the court can order aconditional new trial. The court either reduces or increasesthe damage award, with the proviso that if the affected partydoes not agree to the decrease or increase, a new trial willbe ordered.
Motion to VacateWhen a judgment is inconsistent with factual findings or
special verdict of a jury CCP § 663 allows the court to setaside or vacate the judgment. Service of the motion must bemade within fifteen days of the date of mailing of notice ofentry of judgment, or within 180 days of the date of entryof judgment, whichever is earliest.
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Motion for JudgmentCCP § 631.8 allows a party in a nonjury case to make a
motion for judgment after the other party has completed hispresentation of the evidence.
Motion to Tax CostsWithin fifteen days after mailing of notice of entry or
judgment (or 180 days after entry of judgment, whicheveris first), the prevailing party must submit a written state-ment of costs to the court, known as a memorandum of costs.In this document, the prevailing party details each item claimedas a cost. If the other party disagrees with any of the coststhat are claimed, that party must file a motion to strike ortax those costs. This motion must be filed within fifteen daysof the service of the memorandum of costs. Rule 870 of theCalifornia Rules of Court and CCP §§ 1032–1038 control.
THE PRELIMINARY STEPS IN THE APPEALAppellate practice in state courts is regulated by the Code
of Civil Procedure, sections 901–936.1 and California Rulesof Court, rules 1–80 (appeals from superior court) and rules100–191 (appeals from limited civil cases).
Although the appeal process for cases of general juris-diction and cases of limited jurisdiction is similar, someimportant differences do exist. Appeals from cases withinthe general jurisdiction of superior court are appealed tothe court of appeals. Appeals in limited civil cases are heardin the appellate division of the superior court. Another im-portant difference is the various time requirements. For limitedcivil cases time requirements for filing the notice of appealand for filing the various briefs is much shorter than forcases of general jurisdiction.
Statement of DecisionIn a nonjury case prior to the commencement of any ap-
peal, the losing party has the right to demand a statement ofdecision from the trial court (CCP § 632)). In this statementthe court is required to explain the factual and legal basisfor its decision as to each of the principal controverted is-sues. Generally, it must be requested within ten days afterthe court announces its tentative decision. (Note that this isnot the same date as entry of judgment.) This document cansometimes narrow the issues on appeal. The court may di-rect that the statement of decision be prepared by the pre-vailing party and submitted to the judge for signature andapproval.
Steps in Appeal from Superior Court ActionThe following is an overview of the appellate process in
the court of appeals.
1. File notice of appeal in superior court within sixty daysfrom the mailing of notice of entry of judgment, or 180days of judgment if notice of entry not given (Rule 2).
2. Request reporters transcript and clerks transcript withinten days of filing notice of appeal (Rules 4, 4.5, and 5).
3. Clerk and reporter give cost estimate for transcripts (Rules4 and 5).
4. Pay transcript costs within ten days of receipt of esti-mate (Rules 4(c) and 5(c)).
5. Clerk and reporter prepare and file transcripts withinthirty days of receipt of cost (Rules 4 and 5).
6. File opening brief within thirty days of filing of tran-script in court of appeals (Rule 16).
7. File respondent (appellee) brief within thirty days ofopening brief (Rule 16).
8. File reply brief (if desired) within twenty days ofrespondent’s brief (Rule 16).
Although most appeals are based on transcripts providedby the court clerk and the court reporter, at times, the par-ties prepare their own records of the lower court proceed-ings. The Rules of Court allow parties to prepare an Appendixin Lieu of the Clerk’s Transcript, an Agreed Statement, or aSettled Statement. An Appendix in Lieu of Clerk’s Tran-script (Rule 5.1) allows parties to create an appendix con-taining copies of court documents necessary to the appeal.An Agreed Statement (Rule 6) is a statement signed by theparties showing the nature of the controversy, the basis forappellate court jurisdiction, and how questions arose in andwere decided by the superior court. It must also contain variousdocuments including a copy of the judgment and a copy ofthe notice of appeal. A Settled Statement (Rule 7) can beprepared when the appellant cannot afford a reporter’s tran-script. It is a narrative statement of the oral proceedings incourt.
Limited Civil CasesAlthough the appellate procedures are basically the same
for limited civil cases, some of the time requirements areshorter. In particular, the notice of appeal must be filed withinthirty days of the notice of entry of judgment, or ninety daysfrom judgment, if no notice is given (Rule 122). Rules 124and 125 should be consulted regarding the transcripts. Tim-ing for briefs is described in Rule 105. A shorter time isallowed for briefs in an appeal from municipal court. Open-ing briefs are due twenty days after the filing of the tran-script. Respondent briefs are due twenty days after the filingof the opening brief, and reply briefs are due ten days there-after.
The Appeal BondIn California, whether or not an appeal stays execution
of a judgment depends on the nature of the judgment. Judg-ments for payment of money and for such equitable rem-edies as specific performance of real estate contracts arenot stayed unless an undertaking or bond is posted. (CCP§§ 916–917.9 describe all cases in which execution is nor-mally not stayed.)
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Extensions of TimeThe appellate courts have wide discretion to grant or deny
extensions of time in the appellate process. However, Rule45 lists certain time requirements that cannot be changed.Included in those are the times for filing a notice of appeal,a petition for Supreme Court review, or the granting or de-nial of a rehearing in the court of appeal.
THE APPELLATE BRIEF
Drafting the Appellate BriefThe format for a brief filed in the court of appeals is de-
scribed in Rule 15, which describes the technical require-ments for the brief in great detail. It provides that the briefshould be printed or typed and unless permission from thecourt is obtained, should be no more than fifty pages. Itshould be prepared on 81⁄2 × 11 inch paper, with the typenot smaller than 12 points. It must be securely bound, andif stapled, the bound edge covered with tape.
The format for briefs filed in the appellate division ofthe superior court is controlled by Rule 105, which incor-porates the technical requirements of Rule 15. The only dis-tinction is the length of the brief, which should not exceedfifteen pages without court permission.
Appellate Brief ColorsThe color requirements for appellate brief covers are found
in Rule 44 and include: Appellant’s opening brief: green;Respondent’s brief: yellow; Appellant’s reply brief: tan.
Content of BriefsRules 13, 14, and 15 regulate the content of briefs filed
in the court of appeals. Rule 105 controls for briefs filed inthe appellate division of the superior court. The briefs donot differ substantially from those filed in federal court.
Filing and Service of the Appellate BriefsThe number of briefs required to be filed in the court of
appeal is described in Rule 44. In a civil appeal, an originaland four copies of each brief must be submitted to the courtof appeal. In addition, five copies of the briefs must be de-livered to the California Supreme Court and one copy mustbe deposited with the clerk of the superior court for deliv-ery to the trial judge. (Rule 16(b)) Copies must also be servedon all other attorneys in the case.
Filing and service of briefs in the appellate division ofthe superior court is governed by Rule 105. Unless changedby local rule, the original brief is filed with the clerk of thesuperior court and copies served on all other attorneys andthe trial judge (Rule 105(e) and (f)).
FINAL PROCEDURES
Further Appeal ProceduresUnder Rule 27, a party may file a petition for rehearing
in the court of appeals within fifteen days after filing thecourt’s decision. Parties also have the right to request a hearingin the California Supreme Court. This request is made in apetition for review (Rule 28), which must be filed with tendays of the decision of the court of appeal becoming final.The decision is usually final thirty days after it is filed (Rule24(a)). Finally, if federal constitutional issues are involved,the parties can request a hearing in the United States Su-preme Court, by filing a petition for writ of certiorari.
Posttrial Judgment ProceduresEnforcement of judgments in California is regulated by
Title 9 of the Code of Civil Procedure, beginning with sec-tion 680.010, which provide methods for discovering thefinancial condition of the judgment debtor, as well as de-scribing the procedures for satisfying the judgment from theproperty or earnings of the debtor.
Discovering Judgment Debtor’s AssetsCCP § 708.020 permits the use of written interrogatories
to request information to aid in the enforcement of a moneyjudgment. However, the more common method of discover-ing assets is the use of the order of examination. Under CCP§ 708.110, the judgment creditor can get a court order re-quiring the judgment debtor to appear before the court and toanswer questions regarding his financial situation. A Judi-cial Council form is used for this purpose (see Figure 16-1).The order is served personally on the judgment debtor notless than ten days from the date of the hearing. If the judg-ment debtor fails to appear, he may be held in contempt ofcourt and a bench warrant issued for his arrest.
Satisfying a Judgment from Judgment Debtor’s PropertyOnce a judgment creditor has located and identified any
property belonging to the judgment debtor, the judgmentcreditor may apply to the court for a writ of execution. Thisis done any time after the judgment (CCP § 699.510). Thewrit of execution, also a Judicial Council form, is then takento a levying officer (a sheriff or licensed process server, CCP§§ 680.260, 699.03, and 699.080). Along with the writ, thelevying officer must be given written instructions from thejudgment creditor, describing the property to be seized, andits location (CCP § 687.010).
The property is seized and sold at auction, and the pro-ceeds are used to satisfy the judgment (CCP §§ 701.51–830). The code details the procedures that must be followedand the notices that must be given.
SAMPLE
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Figure 16-1 Order to Appear at Examination
continued
SAMPLE
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Figure 16-1 Order to Appear at Examination (continued)
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Satisfying a Judgment from Debtor’s EarningsIn California a separate procedure is established for sat-
isfying a judgment from the judgment debtor’s earnings (wagegarnishment). Rather than a writ of execution, the judgmentcreditor obtains an earnings withholding order, also a Judi-cial Council form (see CCP §§ 706.010 et seq.). The amountof earnings that can be withheld is generally limited.
Exempt Property and EarningsNot all property or earnings of the judgment debtor are sub-
ject to execution or garnishment. The numerous exemptionsand procedures for claiming the exemptions are set forth in thecode (see CCP §§ 703.010–704.995 and §§ 706.050–052)).
Action Against Third PersonIf a third person has possession or control of property in
which judgment debtor has an interest the judgment credi-tor may bring an action against the third person (CCP §708.210)). This is known as a creditor’s suit.
Abstract of JudgmentWhere judgment creditors cannot locate assets of a judg-
ment debtor, they can record an abstract of judgment withany county recorder. Should the judgment debtor acquireany real property, a lien is immediately created. An abstractof judgment is a Judicial Council form containing essentialinformation from the judgment (CCP § 674)). A judgmentis enforceable for a period of ten years, and can be renewedthereafter (CCP § 683.020–220)).
Satisfaction of JudgmentIf a money judgment has been paid, the judgment credi-
tor must file with the court an acknowledgment of satisfac-tion of judgment. If the judgment had been recorded, thesatisfaction should also be served on the judgment debtor(CCP § 724.030). This is not required if the debt was satis-fied in full, pursuant to a writ.