CALIFORNIA CIVIL PROCEDURE Golden Gate University School of Law Spring 2008 Lois Schwartz, Adjunct Professor Tuesdays and Thursdays 8:45-10:00

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1 Contact Information: Hastings College of the Law 198 McAllister, Room 444 San Francisco, CA Office Phone: (415) Cell Phone: (510) CALIFORNIA CIVIL PROCEDURE Golden Gate University School of Law Spring 2008 Lois Schwartz, Adjunct Professor Tuesdays and Thursdays 8:45-10:00 Texts: Levine, Slomanson, Wingate & Shapell, CALIFORNIA CIVIL PROCEDURE (Thomson/West 2d ed. 2005) and Kane & Levine, CIVIL PROCEDURE IN CALIFORNIA (Thomson/West 2006 edition) are required. Class Attendance and Participation: Attendance is mandatory. Students will be responsible for presenting cases on assigned days. Basic Information: This is a three-unit course. Students are required to attend a California state court proceeding or an administrative hearing and to submit a two-page report on your observations on the last day of class. Final Course Grade and Examinations: A midterm exam, one hour in length, is 33 percent of your final grade. The final exam is 67 percent of your final grade. Sources of Law: California Code of Civil Procedure (CCP) is the main source of authority for this course. California Rules of Court (CRC) focus on format and procedure. They have been renumbered and amended as of January 1, A table of changes is available on the Judicial Council website. Local Rules of Court. Each trial court (Superior Court) promulgates its own rules of court, subject to preemption under Rule 3.20 (formerly CRC 981.1). They must be consistent with state rules. They are available from the Superior Court (usually on a website or in pamphlet form) or on other websites. The U.S. Constitution and the California Constitution, article I 1-16 and art. VI 1-4, 6-13 are also relevant to this course. Website: 1

2 CALIFORNIA CIVIL PROCEDURE SYLLABUS Spring 2007 Week One (1/15 & 1/17) Introduction to California Civil Procedure, pages Relevant statutes: CCP , 77, 85-86, 88, 90-95, 284, Relevant Rule of Court: CRC 227, now CRC Cases: Schmier (selective publication of court of appeal decisions); Jelinek (judicial limitations on authority of California Judicial Council, an administrative agency, to impose sanctions on attorneys). A supplementary note on the unusual application of precedent in California: Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense. The decisions of this court are binding upon and must be followed by all the state courts of California. Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court. Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. Auto Equity Sales, Inc. v. Super. Ct. of Santa Clara County, 57 Cal. 2d 450, 455 (1962). Choice of Court & the Case of the Edible Widgets, pages Week Two Tuesday 1/22 & Thursday 1/24 Reading: Subject matter jurisdiction [classification of cases] (pp ) and personal jurisdiction (pp ). Relevant statutes: CCP 85-88; CCP ; CCP (CA long-arm statute) and following. Cases: Stern (classification as unlimited v. limited civil case); Pavlovich (Constitutional compliance prong of personal jurisdiction depends on D expressly aiming activities at forum state). Reading: Proper Service (pp ). Relevant statutes: CCP (proper service on individuals and corporations). Cases: Espindola (reasonable diligence must precede substituted service of process); Dill (must serve designated individual representative, not just company generally); 2

3 Week Three Tuesday 1/29 & Thursday 1/31 Reading: Venue/proper court and other grounds for transfer of venue (pp ); forum non conveniens [FNC] (pp ) Relevant statutes: CCP (venue); CCP , , , (a)(2) (FNC). Cases: Brown (mixed actions; conflict between special and general venue provisions); Flanagan (denying change of venue under CCP 397 based on alleged convenience of witnesses and ends of justice); Century Indemnity Company (test for forum non conveniens [FNC] and preference for stay versus dismissal); Chong (permitting removal to Hong Kong but granting stay of action rather than dismissal). Reading: conflict of laws/choice of law (pp , ). Relevant statutes: This doctrine arises indirectly in a variety of statutory and common law contexts. Note: with respect to governmental interest approach in tort actions (pp ), substitute Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95 (2006) for Bernhard (p. 100) and Kearney (p. 107). The new case is available online. Cases: Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95 (2006) on line (retaining CA jurisdiction when conduct [undisclosed wiretapping] is illegal in this state); Washington Mutual Bank (choice of law specified in contract). Week Four Tuesday 2/5 & Thursday 2/7 Reading: administrative pre-filing requirements (pp ); categories of complaints (pp ); notice versus fact pleading (pp ). Relevant statutes: CCP , , , (form pleadings), 452 (construction of pleadings). Note especially: CCP (a)(1) ( ordinary and concise language ) and CCP 452 (liberal construction of pleadings). Relevant Rule of Court: Rule (formerly CRC 312) (format). Cases: Cases: Wurts (filing government claim tolls statute of limitations); Dept of Transportation (Judicial Council form complaint is not demurrer-proof); Bockrath (precision in pleading for each element of cause of action); Committee on Children s Television v. General Foods (higher standard in pleading fraud). Note: The court can also impose pre-filing requirements on vexatious litigators; such actions are distinguishable from administrative requirements that a litigant file a claim with the proper government agency prior to bringing a civil suit in superior court. 3

4 Reading: Demand for judgment or prayer for relief as final component of the complaint (pp ). Note: The complaint consists of a heading, statement of jurisdiction, causes of action, prayer for relief; and signature. It must be served with a summon pursuant to CCP et seq. Relevant statutes: CCP (demand for judgment), (separate statement of damages for personal injury/wrongful death claims), (punitives); (causes of action against health care providers). Cases: Schwab (P will take nothing by default judgment for personal injury unless Statement of Damages is filed prior to judgment); College Hosp. (substantial probability standard for punitive damages against health care provider). Week Five 2/12 & 2/14 Reading: Responses to the complaint: general demurrers (pp ) and special demurrers (pp ); motions to strike (pp ) and judgment on the pleadings ( ). Relevant statutes: 472a (general demurrers); (f) (special demurrers); CCP (motions to strike); CCP 438 (judgment on the pleadings). Relevant Rule of Court: Rule (formerly CRC 325). Cases: None; only text in casebook is assigned. Reading: Responses to the complaint -- the answer; general and special appearances (pp ); general and specific denials (pp. 178); affirmative defenses (pp ); statute of limitations [SOL] (pp ). Relevant statutes: CCP 1014 (D appears by filing an answer); CCP (answer); statutory limitations periods vary, depending on cause of action. Cases: Mansour (general appearance consenting to jurisdiction based on issuance of subpoena by counsel); Norgart (SOL running from date of wrongful act v. date of discovery of cause of harm; also Doe Ds); Jolly v. Eli Lilly (SOL starts to run when P suspects or should suspect that she has been wronged). Week Six Tuesday 2/19 & Thursday 2/21 NO CLASS make-up day for President s Day holiday. Reading: amendments to complaint (pp ); Truth in pleading -- frivolous pleadings (pp ); SLAPP motions (pp ). Relevant statutes: CCP 472 (right to amend complaint without leave of court); CCP 473 (amendment by leave of court); CCP 474 (Doe defendants); CCP (frivolous 4

5 pleadings and sanctions); (SLAPP actions). Cases: CAMSI IV (demurrer without leave to amend proper when there is no way to amend suit to avoid SOL bar); Austin (when subsequent pleading is based on same general set of facts, amended cause of action will relate back); Fuller v. Tucker (Doe defendants); Eichenbaum (deterrence of frivolous pleadings claims against decedent); Equilon (standard for dismissal of SLAPP suit under CCP ); Metabolife (motion to strike under anti-slapp statute). Week Seven Tuesday 2/26 & 2/28 Reading: Cross-complaints (pp ); special joinder devices (handout in lieu of case book). Relevant statutes: CCP (joinder of causes of action by plaintiff); (joinder of parties); CCP 1048 (consolidation); CCP (permissive joinder of parties); CCP 386 (interpleader); CCP 387 (intervention); CCP 389 (compulsory joinder); CCP 382 (class action). Cases: Crocker Bank (permissive v. compulsory cross complaints); American Motorcycle Corp. (if cross complaint filed against someone not already a party to the action must arise out of same transaction or occurrence as the original action or involve the same property). Reading: Discovery philosophy (pp ); scope of discovery (pp ). Relevant statutes: CCP et seq. (California Discovery Act), CCP et seq. (scope); et seq. (attorney work product), et seq. (methods & sequence of discovery); et seq. (nonparty discovery). Relevant Rules of Court: Rule (formerly CRC 331) (format of supplemental and further discovery), Rule (formerly CRC 335) (format of discovery motions), Rule (formerly CRC 341) (sanctions for failure to provide discovery). Cases: Greyhound (test for objectives of Discovery Act); Pullin (distinguishing investigation from formal discovery); Stewart (defining what might reasonably lead to admissible evidence); Planned Parenthood (privileged information); Hernandez (must ID privileged documents even if there is a right to refuse to produce them later); Laff (work product immunity); County of Los Angeles (dispute over expert witness). Week Eight Tuesday 3/4 & Thursday 3/6 Course Review Midterm Exam 5

6 Week Nine Tuesday 3/11 & Thursday 3/13 Lecture: Discovery devices and expert witnesses. No reading assigned. Interrogatories; depositions; physical & mental examinations; production of documents; requests for admission; continuing discovery; electronic discovery. Relevant statutes: CCP et seq. (interrogatories); CCP et seq. (depositions); CCP et seq. (physical & mental examinations); CCP et seq. (inspection & production of documents, things, land, and other property); CCP et seq. (requests for admission); CCP (use of technology in conducting discovery); CCP et seq. (exchange of expert witness information). Reading: Case management and systemic oversight: Meet and Confer requirement (pp ); discovery sanctions (pp ); protective orders (pp ); Relevant statutes: California Government Code provides authority for judges to manage cases under the Trial Court Delay Reduction Act; CCP 2023 (discovery sanctions); CCP & (protective orders). Relevant Rules of Court: Rule 3713 (formerly CRC 208) (delay reduction goals); Rule (formerly CRC 209) (differentiation of cases); Rule (formerly CRC 210 (case evaluation factors), and Rules (formerly CRC 212) (case management rules) ; see also Rule (formerly CRC 222) (mandatory settlement conferences) and Rule (formerly CRC 225) (notification of settlement). See also Rule 2.30 (formerly CRC 227) (sanctions for rules violations in civil cases). Cases: Obregon (mandatory attempts at informal resolution of conflict); Maldonado (motion to compel discovery); Olmstead (CCP sanctions for bad faith litigation actions or tactics); People v. Superior Ct. (Cheek) (authority of court to oversee discovery in administrative hearing). Week Ten Tuesday 3/18 & Thursday 3/20 SPRING BREAK Week Eleven Tuesday 3/25 & Thursday 3/27 Reading: Disposition without trial: Trial Delay Reduction Act [Fast Track] (pp ); sanctions (pp ) and dismissal under Fast Track (pp ). Relevant statutes: The Trial Court Delay Reduction Act of 1986 is the basis of authority for local court fast-track rules. It is codified at California Government Code et seq. CCP 581 (dismissal); CCP (dismissal for delay in prosecution). 6

7 Relevant Rules of Court: Rule (formerly CRC 372) and Rule (formerly CRC 373) (motions to dismiss for failure to prosecute). Cases: Garcia v. McCutcheon (penalties for failure to comply with Fast Track); Zapanta (motion to dismiss prior to final disposition); Landry (effect of trial preference on dismissal); Howard v. Thrifty Drug (failure to bring case to trial within five years). Reading: Disposition without trial (continued): Default judgment (pp ); settlement; offer of judgment (pp ; p. 587); motions for summary judgment [MSJ] & summary adjudication [MSA] (pp ); motion for reconsideration (pp ). Relevant statutes: CCP 580, 585 & 585.5, 586 (default), CCP 437c (MSJ/MSA); CCP 1008 (reconsideration); CCP 998 (costs following rejection of offer to settle). Relevant Rule of Court: Rule (formerly CRC 342) (MSJ/MSA). Cases: Greenup v. Rodman (default for failure to comply with discovery); Aguilar (summary judgment). Week Twelve Tuesday 4/1 & Thursday 4/3 Reading: Contractual arbitration (pp ; ); judicial arbitration (pp ). Relevant statutes: CCP 1281, , (enforcement of arbitration agreements). Relevant Rules of Court: Rules et seq. (formerly CRC 1580) (administration of ADR programs), Rules et seq. (formerly CRC 1600 et seq.) (judicial arbitration). Cases: Moncharch (finality of arbitration); Armendariz (enforceability of arbitration provision in contract); Porreco v. Red Top (judicial arbitration). Reading: Obtaining trial by jury (pp , ). Relevant statutes: CCP 592 (jury trial), CCP 598 (precedence of issues), CCP (trial by jury); CCP 631 (waiver of jury trial/demand for jury trial); Cal. Const. art. I, 16. Cases: Crouchman (P has no right to appeal from small claims judgment; D may obtain trial de novo in Superior Court); Escamilla (waiver of jury trial by silence); People v. Burgener (composition of jury); Williams (cross section of community); People v. Garcia (cognizable groups). Week Thirteen Tuesday 4/8 & Thursday 4/10 Reading: Jury instructions (pp ) Relevant statutes: CCP 607a (proposed jury instructions: CCP 608 (charge to the jury); CCP 613 (jury deliberation); CCP 618 (verdict; polling the jury). Relevant Rules of Court: Rule (formerly CRC 228) (examination of jurors in civil 7

8 case); Rule (formerly CRC 229) (proposed jury instructions); Rule (formerly CRC 855) (Judicial Council jury instructions); and Rule (formerly CRC 860) (excuses from jury service). Cases: Mitchell v. Gonzales (jury instructions must reflect current law). Reading: Judicially controlling the jury by grant of motions for nonsuit, directed verdict, judgment notwithstanding the verdict (JNOV); motion for new trial; motion to set aside judgment (pp ). Relevant statutes: CCP 581c (motion for nonsuit); CCP 630 (motion for directed verdict); CCP 629 (motion for JNOV); CCP 657 (motion for new trial; see also California Constitution article VI, 13); CCP 663 (motion to set aside judgment). Cases: Panico (nonsuit); Dailey (directed verdict); Garretson (JNOV); Fountain Valley Chateau Blanc HOA (motion for new trial). Week Fourteen Tuesday 4/15 & Thursday 4/17 Reading: Judicial relief from judgment (pp ) (note that the parties can also stipulate to vacate a judgment). Relevant statutes: CCP 473(b) (relief from judgment) Cases: Zamora (motion to set aside judgment based on mistake, inadvertence, surprise, or excusable neglect). Lecture: Securing and enforcing judgments. No reading assigned. Attachments; TROs, preliminary injunctions; enforcement of judgments by execution; contempt of court; attorney s fees & costs. Relevant statutes: CCP et seq. (attachments); CCP 525 et seq. (injunction); CCP 1021, , 1032, (attorneys fees). Week Fifteen Tuesday 4/22 & Thursday 4/24 Reading: Appellate Review: Appealable judgments and orders (pp , ); timeliness of appeal (no reading assigned); standards of review (no reading assigned). Prejudicial versus harmless error (pp ); Extraordinary Writs in the absence of a final judgment (pp ). Relevant statutes: CCP 901 et seq.; see especially CCP 904.1(a) (one final judgment rule); CCP 906 (prejudicial error). Cases: Morehart (identifying a final judgment); Solis v. Vallar (appeal from interlocutory order or judgment); Ponce-Bran (appeal from collateral order). 8

9 Lecture: Prior Adjudication: stare decisis (no reading assigned); res judicata (preclusion of claims; collateral estoppel (preclusion of issues). No reading assigned. Week Sixteen Tuesday 4/29 only Course review and practice essay exam. FINAL EXAM May 6th at 6:30 p.m. HAVE A GREAT SUMMER! 9