CALIFORNIA CIVIL PROCEDURE DISTINCTIONS PROFESSOR ROBERT PUSHAW PEPPERDINE UNIVERSITY SCHOOL OF LAW

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1 CALIFORNIA CIVIL PROCEDURE DISTINCTIONS PROFESSOR ROBERT PUSHAW PEPPERDINE UNIVERSITY SCHOOL OF LAW CHAPTER 1: JURISDICTION, VENUE, AND CHOICE OF LAW A. Subject Matter Jurisdictin (SMJ) 1. In General Federal curt jurisdictin is t defined categries f cases, such as thse raising federal questins. By cntrast, CA Superir Curts enjy jurisdictin ver ALL civil matters. One Superir Curt in each f the state s cunties. 2. Classifying Cases Superir Curts have SMJ ver the fllwing three classificatins f civil cases: Amunt in cntrversy is $ fr actins by individuals, and $5,000 r less by ther parties. Limited Amunt in cntrversy is $. Unlimited Amunt in cntrversy is mre than $. 3. Reclassifying Cases Superir Curt will autmatically reclassify a case if: The plaintiff amends the cmplaint and changes the amunt abve r belw $25,000; r Crss-cmplaint (the defendant makes a claim against the plaintiff) increases the amunt f the entire case t abve $25,000 reclassified as unlimited. If a case was initially misclassified, Superir Curt keeps jurisdictin, but has tw ptins: Reclassify the case frm unlimited t limited if it determines the verdict will " " be $25,000 r belw. Reclassify the case frm limited t unlimited if it cncludes that the verdict " " be abve $25,000.

2 Nte 1: Fr an unlimited case t satisfy the $25, amunt in cntrversy, yu can add up all the claims. Example 1: P brings a limited case against D fr $20,000. D crss-cmplains fr $10,000. What's the result?. Example 2: D1 and D2 beat up P. P sues D1 fr $13,000 and D2 fr $12,500. What's the classificatin?. Example 3: P sues D fr breach f cntract and requests $26,000 in damages. The curt classifies the case as unlimited. The defendant's answer denies liability and attaches the disputed cntract, which plainly shws that the maximum pssible damages wuld be $24,000. What shuld the curt d?. B. Persnal Jurisdictin (PJ) 1. In Persnam Jurisdictin Simple when the defendant is a CA resident Trickier when the defendant is frm ut f state Exam Tip 1: On the bar exam, be alert fr a questin where the plaintiff is trying t sue a nnresident f CA in CA state curt. Apply CA's statute; must cmply with due prcess Tw prng test: Des the defendant have minimum cntacts with the frum state? (i.e., did the defendant herself f CA in sme substantial way and thus shuld have freseen being sued there) Wuld exercising jurisdictin ffend ntins f " "? Curt balances the burden n the defendant against CA s (frum state s) interest in deciding its citizens claims, judicial efficiency, and all states plicy interests Themis Bar Review, LLC CA Civil Prcedure Distinctins

3 Example 4: In 2005, Becky f West Tahe, CA, bught a Tr (the bestselling car f Frd, a huge Michigan crpratin) frm Tahe Je, wh wns a large Frd dealership acrss the state line in East Tahe, Nevada. Tahe Je advertises extensively in Califrnia bragging that his cars are far cheaper than the same nes in CA. 30% f his custmers are Califrnians. In June 2008 in West Tahe, Becky is struck frm behind by a speeding car and her gas tank expldes, causing her terrible injuries. The tank has a design defect that causes it t explde when it s hit at speeds ver 85 mph. CA law makes sellers strictly liable fr design defects. Can Becky sue Tahe Je in Califrnia Superir Curt?. Califrnia s lng-arm statute reaches ut and grabs Tahe Je frm Nevada. This is OK under Due Prcess. Califrnia curts have general jurisdictin ver him because he has purpseful minimum cntacts with CA and shuld anticipate being sued in CA if his cars cause injury. Even if Becky was his nly CA custmer, CA wuld still have specific jurisdictin because Becky's cause f actin arse frm Je's cntact with the state. Secnd, exercising jurisdictin wuld be fair and just because the burden n Je is slight, CA has a strng interest in deciding this case, ding s wuld be efficient, and every state has an interest in affrding redress fr defective prducts. Example 5: Assume the same facts, except that in 2005 Becky had lived in Rhde Island and bught her Tr used frm Rhdy, a small used-car dealer in Rhde Island. Wuld Califrnia curts have persnal jurisdictin? It is. First, Rhdy lacked minimum cntacts with CA. Nt reasnably freseeable that he wuld be sued there. Secnd, CA's exercise f jurisdictin wuld be unfair and unjust t Rhdy a huge burden n him, with little benefit t CA. 2. Jurisdictin ver Things The same due prcess standards apply if a CA curt seeks t exercise, quasi in rem, r attachment jurisdictin ver prperty (e.g., minimum cntacts"). 3. Cnsent Unlike SMJ, yu cnsent t PJ. 4. Defenses t Jurisdictin CA the traditinal rule that nnresident defendants are immune frm persnal jurisdictin if they enter the state temprarily t participate in a judicial prceeding. CA Civil Prcedure Distinctins 2017 Themis Bar Review, LLC 3

4 C. Venue 1. In General Issue: which curt can hear the case? Gal: prvide a fair and cnvenient frum 2. Venue in State Curt a. General Rule In Califrnia, venue is in the f the apprpriate cunty. b. Where is venue fr cases invlving real estate (called lcal actins)? In the cunty where the. c. Where is venue fr transitry actins (which can arise anywhere)? In the cunty where resides at the time that the actin begins. If n defendant resides in Califrnia, then in any cunty. d. Tw transitry actins als have special venue rules Cntract: sue in the cunty where the cntract was r. Persnal injury r wrngful death: yu sue where the injury ccurred. e. The actin is mixed (i.e., it might be brught in mre than ne venue) Basic rule: yu sue defendants in the cunty where f the defendants resides, unless there is a cmpelling reasn t hld the trial elsewhere. f. Venue against crpratins, assciatins, and partnerships Lies in the cunty (i) where it executed r prmised t perfrm a cntract, (ii) where a ccurred, r (iii) where liability arse. A crpratin can als be sued where it has its f business. Example 6: Best Buy is a crpratin with its principal place f business in San Dieg Cunty. P signed a cntract t buy a big screen TV at Best Buy in Newprt Beach in Orange Cunty fr $2,000 t be delivered in ne week. Best Buy later breaches the cntract. Where wuld venue be prper? Either r Themis Bar Review, LLC CA Civil Prcedure Distinctins

5 3. Transfer f Venue Permitted if the plaintiff sues in the wrng venue Even if venue is prper, the curt might still transfer the case if it cncludes: A can t be held; It s mre cnvenient fr witnesses and mre just; r N judge is qualified t act. 4. Frum Nn Cnveniens Allws a curt t stay r dismiss an actin in the interest f, if a curt in anther state (r cuntry) is mre cnvenient. Example 7: Pedr sues Dan in Ls Angeles Cunty Superir Curt fr the trt f battery, claiming that Dan punched him at a Ddgers game in LA. Dan mves t transfer venue t Kern Cunty where he resides. Shuld the curt grant Dan's mtin?. It is a persnal injury suit, s venue is prper where the. D. Chice f Law 1. Trt When tw r mre states have an interest in applying their cnflicting laws, the curt reslves the cnflict by determining the cmparative impairment f each if the ther state s law is applied. 2. Cntract If a cntract cntains a chice f law clause (e.g., Kansas law gverns ), then the curt determines whether the state law chsen t the parties r the transactin. If nt, it is unenfrceable. If the curt cncludes that the clause is enfrceable, it then decides whether the chsen law cnflicts with CA public plicy, and, if s, whether CA r the chsen state has a greater interest in determining the issue. If the cntract has n chice-f-law clause, r if it s unenfrceable, the curt applies a cmparative gvernmental interest" test, just like in trt law. Example 8: Assume that Best Buy is incrprated and headquartered in Minnesta, althugh it has stres thrughut the United States, including in Califrnia. Plaintiff signs a cntract with Best Buy in Orange Cunty t buy a big-screen TV. The cntract cntains a clause that states "Minnesta law will CA Civil Prcedure Distinctins 2017 Themis Bar Review, LLC 5

6 gvern any disputes." A dispute later arises regarding the TV s warranty. Plaintiff prperly files a suit in the Orange Cunty Superir Curt. Assume that CA cntract law prvides cnsumers with much strnger warranty prtectins than MN law des. Which cntract law shuld the CA Superir Curt apply? MN law substantially relates t ne f the parties (Best Buy), and MN has an interest in ensuring that its cntract law applies unifrmly t all f its cntracts. CA wuld have t determine whether the MN law cnflicts with CA s public plicy f giving cnsumers far greater warranty prtectin. If s, then the curt wuld have t determine whether CA r MN had a greater interest in determining this issue. This is a discretinary judgment call. Hwever, since this is a cntract executed in CA between a CA custmer and a stre lcated in CA, the curt may be persuaded t apply CA law. CHAPTER 2: PLEADINGS A. Cmmencement f Prceedings 1. Service f Prcess As in federal curt, P files a cmplaint and serves a cpy f it and a summns n the defendant. 2. Key CA differences If despite the plaintiff cannt serve the defendant in persn, then substituted service is permitted by: Service n a respnsible adult at defendant's r place f business; plaintiff must still send a fllw-up first-class mailing with return receipt. If the plaintiff can t serve the defendant persnally r by substituted service, then service by is allwed. Service n ut-f-state defendants can be made in the same way as n in-state defendants OR by first-class mail/return receipt. Unlike in the federal rules, waiver f service des NOT extend the defendant's time t respnd. Example 9: Bb, a resident f Ls Angeles, is driving his BMW in San Francisc. Tammy, a San Francisc resident, crashes int Bb there and allegedly causes $10,000 in damages t his car and $15,000 in persnal injuries. Bb prmptly files a cmplaint in the San Francisc Cunty Superir Curt. Bb then sends a cpy f the cmplaint and a summns t Tammy at her hme address by U.S. Express Overnight Mail with return receipt, which Tammy gets the next mrning. Has Tammy been prperly served? Themis Bar Review, LLC CA Civil Prcedure Distinctins

7 . Bb must first attempt t serve Tammy. If that desn t wrk, then he can attempt substituted service n an adult in Tammy s hme and then send her the dcuments thrugh the mail as a fllw-up. Example 10: Assume the same facts as in the previus example, except that Bb (1) prperly served Tammy and (2) filed an unlimited civil actin in Ls Angeles Cunty Superir Curt. Hw shuld Tammy respnd? Tammy shuld mve t the case frm unlimited t limited because the amunt in cntrversy des nt exceed $25,000. Next, Tammy shuld mve t t San Francisc Cunty where she, the defendant, resides and where the persnal injury ccurred. B. Cmplaint Federal rules allw pleading. Simple statements that generally infrm the ppnent f the basic claims and defenses. By cntrast, Califrnia requires pleading. Parties must allege in the pleadings all that give rise t each cause f actin and demand fr judgment fr relief requested. The plaintiff must state the exact dllar amunt f damages. Exceptin: r wrngful-death actins Example 11: Pam sues Dharma fr a brken leg caused by Dharma's negligence resulting in physical and mental injuries and damages t Pam. Is this cmplaint acceptable?, because it is a persnal injury actin, s the dllar amunt f damages des nt need t be specified. Example 12: Pam sues Dharma fr breach f cntract that results in substantial mnetary lss t Pam. Is this cmplaint valid?. Pam must set frth the precise dllar amunt (e.g., $87,624.00). CA Civil Prcedure Distinctins 2017 Themis Bar Review, LLC 7

8 C. Mtins Against the Cmplaint 1. Demurrer a. In General The defendant can file a t any r all causes f actin in a cmplaint (like a Federal Rule 12(b) mtin). b. Tw Kinds f Demurrer 1) General Challenge t curt's SMJ; r Plaintiff has nt set frth facts sufficient t cnstitute a cause f actin. 2) Special Lack f (e.g., a child) Similar actin pending in anther curt Prblem with jinder f parties Pleading is Failure t state whether cntract was written r ral in cntract actin 2. Mtin t Quash Service f Summns T challenge persnal jurisdictin It must be made filing any respnsive pleading. What if the defendant bjects t persnal jurisdictin in her ANSWER rather than by mtin t quash? The defendant has just made a general appearance and has this bjectin (different than federal rules). 3. Mtin t Strike Can strike: Irrelevant,, r imprper matter; r Any part f a pleading that cnflicts with CA law r a curt rder. It must be filed within 30 days f the pleading being challenged. Specific mtin t strike: anti-slapp mtin - defendant shws that the plaintiff's cause f actin arises frm the defendant's exercise f prtected First Amendment rights. The defendant wins unless the plaintiff can shw he will prbably win n the merits (a very tugh burden) Themis Bar Review, LLC CA Civil Prcedure Distinctins

9 D. Answer 1. Timing If the defendant s demurrers r mtins fail (r are nt made), then the defendant must file an answer. Answer must be filed within days f service r face default. 2. Admissins r Denials Defendant can file: A denial (f every allegatin); r denials f certain allegatins. Anything nt denied is deemed admitted. E. Crss-Cmplaint If the defendant has a cause f actin against the plaintiff, the defendant can t put it in an answer (as with a federal cunterclaim). The defendant must file a separate. Umbrella term that cvers three distinct claims under the FRCP: Cunterclaims; ; and Impleader against third parties. As with federal cunterclaims, if D's crss-cmplaint relates t P s cause f actin, it s (i.e., the defendant must file it r it s waived). If the defendant's crss-cmplaint is unrelated t the plaintiff s cause f actin, then it s. In respnse t a crss-cmplaint, the plaintiff must file a separate answer (NOT called a "reply"). Example 13: Plly alleges that Derek breached a cntract t build a specified huse fr $500,000. Hwever, the cntract cntained a prvisin which stated that ne mnth befre Derek was t begin wrk, Plly had t pay Derek $50,000 t cver up-frnt csts, such as materials. Shuld Derek bring up this cntract prvisin in his answer r in a crss-cmplaint? Derek must file a alleging that Plly breached the cntract by failing t make the initial $50,000 payment. F. Amendments and Supplemental Pleadings The plaintiff has the right t amend befre the defendant files an answer r demurrer, and the curt may allw amendment after sustaining the demurrer r granting the mtin t strike. CA Civil Prcedure Distinctins 2017 Themis Bar Review, LLC 9

10 Editr's Nte 1: A party may als amend nce as a matter f right after a demurrer is filed but befre the demurrer is heard if the amended cmplaint, crss-cmplaint, r answer is filed and served n later than the date fr filing an ppsitin t the demurrer. Otherwise, any party may amend, either with the ppnent s cnsent r with leave f the curt, which is liberally granted. When a party amends a pleading the statute f limitatins has run, CA applies a relatin back dctrine (like under the FRCP). Amendment relates back t the riginal pleading date if it arises frm the same. CA amended pleading must (i) cncern the same accident and injuries as the riginal pleading and (ii) refer t the same ffending instrumentality. A plaintiff wh names the wrng party ( misnmer ) can later name the crrect defendant, even after the statute f limitatins has run. Unlike the FRCP, CA allws a plaintiff t name a fictitius De defendant. The plaintiff can amend with the defendant s real name if: The riginal cmplaint was and set frth sufficient factual allegatins against all defendants; The plaintiff genuinely did nt knw the defendant s name OR facts giving rise t a cause f actin OR that the law allwed a cause f actin; and The cmplaint stated the plaintiff s. If s, the plaintiff has years frm the date f filing the riginal cmplaint t identify and serve any "De" defendants, and it relates back t the riginal cmplaint. Example 14: At a bar, P is beaten up by tw Ds his c-wrker Bill Smith and a stranger, wh then runs away. P files a timely cmplaint against Bill Smith and Jhn De, which sets frth the material facts, asserting a trt claim against each D, demanding a judgment fr $125,000 frm each D, and declaring that P des nt knw De s true name. Tw years later, after the statute f limitatins has expired, P learns that Jhn De s name is Rb Lawless and amends his cmplaint t name Lawless. What is the result? The plaintiff his cmplaint and name Lawless because the plaintiff has satisfied all f the requirements cncerning fictitius defendants. G. Sanctins CA apprach is generally the same as Federal Rule 11. Certain technical distinctins: Themis Bar Review, LLC CA Civil Prcedure Distinctins

11 Curt must determine whether a party seeking sanctins exercised. 21-day grace perid fr crrecting ffending cnduct r written material applies nt nly when a party made a mtin (as in Rule 11), but als when a curt acts n its wn. Curt can sanctin a party fr bringing a mtin fr sanctins fr an. CHAPTER 3: MULTIPLE PARTIES AND CLAIMS A. Jinder f Parties Similar t Federal Rule 20 CA allws jinder when: The parties have adverse claims r defenses; r Their causes f actin r defenses arise frm the same and present a cmmn questin f. B. Interventin CA allws interventin by a, but nly if the curt finds the nnparty s interest t be. Cmpare the mre permissive Federal Rule 24(b), which allws interventin if the nnparty s claim r defense and existing case present a cmmn questin f law r fact, and the riginal parties wn t suffer prejudice r delay. Example 15: Diana, a hmewner in an exclusive beachfrnt cmmunity, adpts sme pt belly pigs that emit a ful rder and make squealing nises frequently. Diana is sued fr varius prperty and trt law vilatins by her next dr neighbr, Penelpe. Anther hmewner, Percy, wh lives n the beach but is 12 huses away, mves t intervene as a c-plaintiff. Percy claims Diana's pigs will reduce his prperty's value, althugh he cannt see r smell the pigs and has n intentin f selling his huse. Can Percy intervene? Under the FRCP? Under the CA rules? Under the FRCP -. Under the CA rules -. C. Jinder f Claims CA's apprach is similar t Federal Rule 18, except that when many defendants have been jined, there must be at least ne questin f cmmn t ALL defendants. CA Civil Prcedure Distinctins 2017 Themis Bar Review, LLC 11

12 Curts have discretin t sever claims t prevent r prejudice. Recall that CA uses the unifrm term crss-cmplaint t describe what the Federal Rules call cunterclaims, crss-claims, and impleader. The same basic rules apply in CA as in federal cunterclaims and crss-claims. But, as cmpared t federal impleader, CA allws jinder mre generusly. Example 16: A plaintiff sues a defendant and the defendant turns arund and files a crss-cmplaint alleging a new cause f actin against the plaintiff. Either the riginal defendant r the riginal plaintiff can defend against the claim by saying smene else is liable. If s, they are called and can implead (bring int the lawsuit) any ther third-party defendant wh might be liable and assert all relevant claims and defenses. In CA, if a crss-cmplaint lays ut a new cause f actin and adds a new party, impleader is allwed nly if that new cause f actin: Arises ut f the same as in P s riginal cmplaint; r Alleges a claim in the plaintiff s actin against a third-party plaintiff (wh may then jin ther new third-party defendants r causes f actin against them). Example 17: Dave gets int an accident with Paula; bth are CA residents. Paula claims Dave ran a light that had just turned red and sues Dave fr negligence in the apprpriate Superir Curt and demands $90,000 in damages: $25,000 fr damages t the car and $65,000 in persnal injuries. Dave prmptly files a crss-cmplaint against Paula claiming that she negligently caused the accident by entering the intersectin befre the light turned green. Dave als believes that anther persn, Rick, may be partly at fault fr the accident by running int the intersectin t grab his unleashed dg. What shuld Dave d? and allege that Rick's actin cnstituted negligence. The curt wuld permit impleader because Dave's new cause f actin against Rick arises ut f the same ccurrence (the accident that was the basis fr Paula's cmplaint). D. Class Actins 1. Basic Requirements CA class actins are similar t actins under the FRCP, but use smewhat different wrds and rder. A plaintiff can bring a class actin in CA if: Themis Bar Review, LLC CA Civil Prcedure Distinctins

13 The parties are and it s impracticable t bring them all befre the curt; OR The questin presented is f t many persns. 2. Class Actin Certificatin Requirements An class; and A well-defined cmmunity f interest amng members cnsidering whether Cmmn questins f law r fact predminate; A class actin will benefit the parties and the curt; and The named representative will represent the class. 3. Subject Matter Jurisdictin Amunt in cntrversy can be btained by adding up claims f the. Example 18: Nelsn s ship, sailing alng the cast f Malibu, accidentally discharged a substance that cst Malibu s 500 ceanfrnt hmewners $51 a piece t clean up. Nted class-actin attrney McMahan seeks t represent Jane Jenkins and 499 ther hmewners against Nelsn in an unlimited civil class-actin suit, arising under trt law in Ls Angeles Superir Curt. Will the curt certify the class?. With numerus plaintiffs, it makes sense nt t have each f them file a separate suit; the trt questins are f cmmn interest t all 500 plaintiffs; the class is readily ascertainable; they have a cmmunity f interest"; a class actin is efficient fr the parties and the curt; and it s likely that McMahan will adequately represent the class. Example 19: Fllw-up questin t the previus example: Des the curt have subject-matter jurisdictin?. The class plaintiffs can reach the threshld amunt in cntrversy ($25,000.01) by adding up their claims. 4. Technical Ntes abut CA Class Actins Ntice - a curt determines wh bears the cst f ntice (the plaintiff r the defendant), whereas the plaintiff pays under Federal Rules. Judgment - binds any class member wh des nt. A Superir Curt rder denying class certificatin is immediately. CA Civil Prcedure Distinctins 2017 Themis Bar Review, LLC 13

14 CHAPTER 4: PRETRIAL PROCEDURE & DISCOVERY A. Mandatry Disclsures Unlike the Federal Rules, in CA there are initial mandatry disclsures. B. Electrnically Stred Infrmatin (ESI) CA treats ESI the same as. C. Discvery Scpe and Limits 1. Scpe CA discvery standard (any material relevant t the in litigatin) is even brader than the federal standard (any matter relevant t a claim r defense ). Example 20: Bb prperly brings an unlimited civil actin against Tammy, a newly licensed 17-year-ld San Dieg resident, in San Dieg Cunty Superir Curt fr negligently hitting his car in San Dieg and causing $50,000 in damages t his car and $40,000 in persnal injuries. Tammy insists that she was nt at fault because, amng ther things, she braked crrectly and thus shuld have stpped befre she hit Bb. During discvery, Bb suspects that Tammy s brakes might have been defective. 1(a) Can Bb, in a depsitin, questin Tammy abut her driver training n braking, when she hit the brakes befre the accident, and hw hard she hit the brakes?. This infrmatin is relevant t the subject matter f the litigatin. 1(b) Culd Bb discver this infrmatin if he had brught his actin in U.S. District Curt? (Assume that the federal curt had jurisdictin).. These questins are permitted because the matter sught is relevant t Bb s claim f negligence and Tammy s defense. (2) In discvery, culd Bb questin Tammy abut the brakes themselves e.g., hw they respnded when she pressed them befre the accident r whether they made any funny nises? (a) If the case were in federal curt?. This infrmatin is nt relevant t Bb s claim that Tammy was negligent r her defense. Rather, it cncerns whether a party nt befre the curt (the carmaker) made a defective prduct. (b) Hw abut the actual case filed in CA state curt? Themis Bar Review, LLC CA Civil Prcedure Distinctins

15 . The pssible defectiveness f the brakes themselves is relevant t the f the litigatin. Bnus questin: In the CA case, Tammy believed that the carmaker had sld her a car with defective brakes, what shuld she d t bring the carmaker int the case? Tammy (as a third-party plaintiff) shuld file a against the carmaker as a third-party defendant wh might be liable because her cause f actin against the carmaker arse frm the same ccurrence as Bb s riginal actin. 2. Privileges As in the Federal Rules, a party cannt get the ppnent s privileged material. In CA, privileged infrmatin can be brader than under the Federal Rules because the CA Cnstitutin prtects the right t (which extends t discvery). A curt balances this right against the ppnent s need fr the infrmatin. All parties must the claim f privilege. If a plaintiff attempts discvery and the defendant bjects that the infrmatin is privileged, the defendant wuld have t prvide sufficient facts fr the plaintiff t evaluate the merits f the claimed privilege. 3. Limitatins n Discvery Materials prepared in anticipatin f trial Federal Rule 26(b)(3) generally prtects all such materials, regardless f wh prepared them (a party, its representative, r its attrney), unless there is a shwing f substantial need and hardship. By cntrast, the CA rule applies ONLY t, which is abslutely privileged. "Wrk prduct" - attrney's research, legal pinins and cnclusins, evaluatins f the case, impressins, tactics, etc. The privilege als applies when an attrney hires an investigatr t recrd witness statements if the recrdings shw the attrney's impressins, evaluatins, r tactics. If they d nt, the party seeking discvery can btain thse witness statements upn a shwing f unfair prejudice r injustice. CA Civil Prcedure Distinctins 2017 Themis Bar Review, LLC 15

16 Example 21: Pete sues Dn fr assault and battery claiming Dn suddenly attacked him frm behind in a bar. In preparatin fr the trial, Pete hires Magnum, a private investigatr, wh btains a statement frm a witness stating that it was Pete wh had thrwn a glass f beer at Dn and shved him befre Dn retaliated by hitting Pete in the face, nt frm behind. Dn's attrney demands a cpy f the witness's statement, but Pete's attrney asserts that it is privileged. Is it privileged?. Only the wrk prduct f an attrney prepared in anticipatin f trial is privileged. The witness statement was btained by a party, Pete. 4. Experts A party can request disclsure f lists identifying experts, their prpsed trial testimny, and their reprts. Experts must be available fr. 5. Supplementatin CA require supplementatin f prir discvery (unlike the FRCP). Hwever, a party can make use f rdinary discvery devices t btain material that the ppnent gets later. D. Discvery Cnference Unlike Federal Rule 26(f), CA require parties t cnfer abut discvery r prvide a discvery plan. Hwever, within 180 days f the cmplaint s filing, CA Superir Curt must hld a case management cnference t review all aspects f the case with the parties, including discvery. CA has a fast track system with gals fr speedy dispsitin: Unlimited cases - 75% f cases in 12 mnths, 85% in 18 mnths, and 100% in 24 mnths. E. Discvery Devices 1. Depsitins CA impses a limit n ntice f depsitin. CA des NOT limit (unlike Federal Rule 30, which generally limits each party t 10 depsitins). Length f depsitins is limited t hurs, with many exceptins (the parties s stipulate, witness is an expert, curt designates the case as cmplex, case against emplyer regarding emplyment relatinship, depnent is mst qualified persn t be depsed, the party appeared after cnclusin f regular depsitins, r the curt determines mre time is needed) Themis Bar Review, LLC CA Civil Prcedure Distinctins

17 2. Interrgatries Party may serve n an ppnent an unlimited number f Judicial Cuncil frm interrgatries, but nly individually drafted interrgatries (mre if gd cause is shwn). Cntrast: FRCP 33(a) limits all interrgatries t Requests t Prduce Dcuments/Inspect Prperty Basically the same as Federal Rule Physical Exams In CA, an attrney must be allwed t attend. 5. Requests fr Admissin Requests fr admissin f dcuments - (same as Federal Rule 36) All ther requests fr admissin - limited t (unless gd cause is shwn). F. Enfrcement 1. Mtin t Cmpel May be filed if a party believes that a respnse t a discvery request is incmplete/evasive r cntains baseless bjectins. Mving party must first have made a effrt t infrmally reslve the prblem with the ppsing sides. 2. Sanctins Similar t Federal Rule 37 Exceptin: In CA, initial misuse f discvery result in mnetary sanctins (unless unjust), and further abuses will result in sanctins f ever-increasing severity at the trial curt's discretin. Example 22: Tammy files a crss-cmplaint against the carmaker. Tammy sends the carmaker 23 carefully drafted interrgatries. The carmaker des nt respnd. Tammy makes a secnd request and the carmaker respnds, but des nt fully answer critical interrgatries regarding hw the brakes were designed and tested. Tammy requests that the carmaker respnd fully and the carmaker expressly refuses t d s. Tammy then brings a mtin t cmpel discvery and seeks sanctins. What wuld the curt be likely t d? The curt wuld prbably the mtin and mnetary sanctins against the carmaker because Tammy nly submitted 23 carefully drafted CA Civil Prcedure Distinctins 2017 Themis Bar Review, LLC 17

18 interrgatries, and Tammy reasnably believes that the carmaker's respnses are incmplete n key questins, and she has tried infrmally t reslve the issue, the carmaker refuses t cperate, and this seems t be part f a pattern with the carmaker. G. Adjudicatin withut Trial 1. Dismissal a. Vluntary In cntrast t Federal Rule 41(a), in CA, a plaintiff s vluntary dismissal after trial begins will be, unless the parties agree therwise r gd cause is shwn. b. Invluntary On a party's mtin r n its wn, a CA curt may dismiss if the plaintiff failed t "diligently prsecute" the cmplaint. The curt may dismiss years after the cmplaint is filed, and must dismiss after years (r after three years if the cmplaint was never served). 2. Summary Judgment A mving party can try t establish that the ppnent has n meritrius cause f actin r defense. The mvant can present nt merely pleadings, discvery materials, and affidavits (the materials cnsidered in federal curt), but als any ther evidence negating the ppnent s claims/defenses r factual assertins, r shwing that the ppnent des nt have the necessary supprting evidence. If the mving party succeeds, the burden shifts t the ppnent t demnstrate a triable. CA requires the mvant t file a separate statement listing all material facts alleged t be undisputed, with supprting evidence fr. The ppsing party must present a statement listing disputed facts with supprting evidence. Timing: A SJ mtin may be brught days after the ppnent makes a general appearance. The mvant must serve all papers days befre the hearing. The ppsitin papers must be filed days befre Themis Bar Review, LLC CA Civil Prcedure Distinctins

19 The reply papers days befre. Summary judgment can be reviewed by a writ f mandamus. CHAPTER 5: TRIAL AND POST-TRIAL PROCEDURE A. Trial Prcedure 1. Jury Trial The CA Cnstitutin guarantees the right t a jury in actins at. A party must a jury trial when the case is first set fr trial. There must be jurrs, unless the parties agree t fewer. Jurr is excused after the trial begins - trial prceeds unless a party bjects. Unlike federal law, there s n requirement f. Just a three-quarters majrity 2. Mtin fr Nnsuit Similar t judgment as a matter f law/directed verdict Defendant may bring a mtin fr nnsuit after the plaintiff s pening statement r case in chief. Based n the same standard as a directed verdict - n culd find fr the ppsing party as t sme r all f the issues. If the mtin is denied, the defendant can still present evidence r mve fr a directed verdict later. 3. Judgment Ntwithstanding the Verdict (JNOV) Made after the jury has rendered a verdict Unlike Federal Rule 50(b) which requires that a mvant had tried t get an earlier judgment as a matter f law, CA require a prir mtin fr a directed verdict. 4. Mtin fr a New Trial Rarely granted CA curts can determine a new trial will be held unless its prpsal is accepted t either reduce an excessive jury verdict ( ) r, unlike federal curts, increase an inadequate award ( ). A party must accept the reductin/additin within days and submit a prpsed amended judgment, r there is autmatically a new trial re: damages. CA Civil Prcedure Distinctins 2017 Themis Bar Review, LLC 19

20 Example 23: Emplyee sues Emplyer fr breach f cntract. The law is at will emplyment ( i.e., Emplyer can fire Emplyee freely unless (1) there is a cntrary written cntract, r (2) Emplyee is prtected by a statute that prhibits discriminatin based n age, race, r gender). After discvery and after Emplyee presents his case, the undisputed evidence shws that he is a 25-year-ld white male wh is nt prtected by any antidiscriminatin statutes and des nt have a written cntract with Emplyer. In additin, Emplyer has cause due t the fact that Emplyee has been caught playing vide games in his ffice fr several hurs each day after warning him that he wuld be fired if he did s. Emplyer des nt mve fr a nnsuit. The jury finds fr Emplyee. Emplyer mves fr a judgment ntwithstanding the verdict. Can the curt hear the mtin? If s, will the curt grant r deny the mtin? The defendant s failure t file an earlier mtin fr a nnsuit the state curt frm hearing the JNOV mtin. JNOV wuld likely be granted because under the undisputed facts and applicable law, n culd have fund fr Emplyee. B. Pst-Trial Prcedure 1. Alteratin r Relief frm Judgment Rare circumstances - party can ask the trial curt fr relief, but nly when the attrney s mistake r negligence resulted in a default judgment r dismissal. Trial curt is required t grant that relief. Cntrast - Under FRCP 60(b), the district curt has discretin t grant relief t avid injustice. 2. Appeals In CA, appeals g t the CA Curt f Appeals, then t the CA Supreme Curt. a. Final Judgment Rule As in federal curts, the lsing party must wait fr the trial curt's. Unlike federal law, it s cnsidered a final judgment when a CA trial curt enters judgment against ne party (f many) and leaves n further issue fr decisin as t that party. Curt need nt expressly direct entry f such a final judgment. Example 24: P1 and P2 sue D. Curt grants D s mtin fr nnsuit against P1. Is that a final judgment that P1 can appeal? Themis Bar Review, LLC CA Civil Prcedure Distinctins

21 , because the judgment is final as t P1. In federal curt, it wuld nt be final because the case is still live as t P2. b. Interlcutry (Nnfinal) Orders CA generally fllws the federal rule that these rders are nt appealable, with a few exceptins (e.g., rders invlving injunctins). CA adds exceptins fr trial-curt rders: Made after an appealable judgment; Granting a mtin based n frum nn cnveniens r t quash service f summns; Granting a r denying a mtin fr JNOV; and Impsing sanctins f mre than $. c. Cllateral-Order Rule A party may immediately appeal a dispsitive interlcutry rder n an issue cllateral t the merits that directs the r perfrmance f an act. 3. Claim Preclusin ("Res Judicata") Similar t federal law final judgment precludes claims Tw differences in CA frm federal law: CA cnsiders a judgment final nt when rendered, but rather when appeal cncludes (r the time fr appeal expires). Unlike federal curts, CA curts dn t apply the apprach, but rather the dctrine (i.e., ne suit invlves ne harm and ne frm f redress). Example 25: Bb brings a negligence cause f actin against Tammy fr $50,000 in prperty damages fr accidentally ttaling his Mercedes. Bb btains a final judgment fr $50,000. A few mnths later, Bb sues Tammy fr $40,000 fr persnal injuries suffered in that same accident. Tammy raises the affirmative defense f res judicata. What is the result? A CA curt wuld Tammy s defense because Bb is asserting a different primary right (persnal injuries) than in his riginal suit (prperty damages). By cntrast, a federal curt wuld accept the defense f res judicata under the transactinal apprach. CA Civil Prcedure Distinctins 2017 Themis Bar Review, LLC 21

22 4. Issue Preclusin ("Cllateral Estppel") Similar t federal law Exceptin: CA gives and judgments preclusive effect as t material issues actually raised in the pleadings. C. Summary Civil prcedure requires yu t identify each discrete issue and apply the specific gverning rule. Randm examples: reclassifying a limited case t an unlimited ne; determining venue in a trt dispute; making a general demurrer; filing a crss-cmplaint against a third-party defendant; figuring ut what materials prepared fr trial are privileged frm discvery; ascertaining whether a summary judgment mtin has been made in time; r determining whether a trial curt judgment is cnsidered final when an appeal is pending. Each f thse issues triggers applicatin f a particular rule that slves the prblem. Yu must memrize each rule and knw when and hw t apply it. [END OF HANDOUT] Themis Bar Review, LLC CA Civil Prcedure Distinctins