PART I Introduction to Civil Litigation for the Paralegal

PART I Introduction to Civil Litigation for the Paralegal CHAPTER 1 Litigation and the Paralegal KEY POINTS Civil Litigation in California State Courts is regulated by: California Code of Civil Procedure California Rules of Court Local Rules of Court California 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 California Rules of Court California Codes, Cases Judicial Council Forms Recent California Cases www.leginfo.ca.gov/ calaw.html www.courtinfo.ca. gov/rules/ california.findlaw. com/ www.courtinfo.ca. gov/forms/ www.courtinfo.ca. gov/opinions/ WHAT CIVIL LITIGATION IS The basic litigation process in the federal and state court systems is similar. Nevertheless, many differences between the two systems do exist. Time requirements are often not the same, the format of documents may vary and, most importantly, a different set of laws control. In spite of the differences, the job of the attorney and the paralegal in the litigation process remains the same. DIFFERENT TYPES OF LAWSUITS Different types of civil lawsuits exist in California just as they do in all jurisdictions. Some of these differences result in important changes in the litigation process, especially in family law cases, unlawful detainer (eviction actions), and cases where the plaintiff is asking for less than $25,000. FAMILY LAW CASES Family law cases, although civil in nature, are governed by special rules found in the Family Code. Although the general litigation process is similar, special forms must be used for pleadings. UNLAWFUL DETAINER ACTIONS Unlawful detainer actions, while regulated by the general rules of civil litigation, have much shorter time requirements for the various aspects of litigation. 1

2 PART I Introduction to Civil Litigation for the Paralegal CASES OF LIMITED JURISDICTION Lawsuits where the plaintiff requests less than $25,000 in damages are governed by special code provisions known as Economic Litigation for Limited Civil Cases (found in sections 90 100 of the California Code of Civil Procedure). These rules are intended to simplify litigation procedures in small cases. These sections limit discovery but do not substantially alter the litigation process. COMPLEX CIVIL LITIGATION Complex civil cases often present difficult problems for the court. Recently, pilot programs in several counties have been created to deal with these cases effectively, by providing the judges with special training and resources. A complex civil case is defined by California Rule of Court, Rule 1800 as an action that requires exceptional judicial management to avoid placing unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and promote effective decisionmaking by the court, the parties, and counsel. These include such cases as antitrust, securities claims, environmental and mass torts, and class actions. ALTERNATIVES AND LIMITATIONS TO LITIGATION In California alternatives and limitations to the litigation process are growing in popularity. Judicial arbitration, a special type of nonbinding arbitration, has been in effect for many years. Judicial arbitration is part of the litigation process. The California Code of Civil Procedure (referred to as CCP) provides that in superior courts having eighteen or more judges and cases where the damages do not exceed $50,000 shall be ordered to a nonbinding arbitration hearing. Judicial arbitration is optional in other courts. If any party does not accept the award, then the case goes to trial. A party who does not agree with an arbitration award must act promptly to reject it, however. A party rejects an arbitration award by filing a request for trial de novo with the court in which the action is pending within thirty days. (See CCP 1141.10 et seq.). Rules of Court 1600 et seq. contain additional information for alternative dispute resolution in civil cases. The California courts have been encouraged to develop other methods of alternative dispute resolution (ADR), in particular, mediation. Rules of Court 1620 et seq. contain various procedures and rules for the use of mediators in California. Within the state, several ADR providers have been established. These providers consist of retired judges and experienced attorneys who offer their services as arbitrators, mediators, discovery referees, and private judges. Rule of Court 201.9 requires courts to provide parties with an information packet concerning alternative dispute resolution. This information can be made available online. Along with the encouragement of ADR, the California legislature 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 amount of noneconomic damages (usually damages for pain and suffering) that can be recovered, limit the amount of attorney fees that can be charged, and limit the request for punitive damages. SOURCES OF LAW The law of California civil litigation is found in the California Constitution, California cases, California codes (in particular, the California Code of Civil Procedure), the California Rules of Court and various local rules of court. Most courts have posted their local rules of court on the Internet. Local rules of court can usually be found on any court s homepage. A directory of state court homepages (trial, appellate, and Supreme Courts) can be found at www.courtinfo.ca.gov/courts/ Numerous secondary sources exist for litigation practice in the California courts. Several works are published by the West Group. Check their website for a complete listing: store.westgroup.com. A second popular collection of practice books are those published by Continuing Education of the Bar (CEB). Numerous pleading forms are also found in the California Forms of Pleading and Practice published by Matthew Bender. PROFESSIONAL ORGANIZATIONS Many counties in California have paralegal associations. Many of these belong to the California Alliance of Paralegal Associations (CAPA). Their website is www. caparalegal.org. This site links to many local associations.

CHAPTER 2 The Courts and Jurisdiction 3 CHAPTER 1 Addenda THE JUDICIAL COUNCIL AND CALIFORNIA CIVIL LITIGATION The Judicial Council in California is a group of judges, attorneys, and legislative representatives. One of the important functions of this group is to adopt rules for practice and procedures in the California courts. The Judicial Council has also adopted and approved various standard legal forms to be used in the courts. Some of the Judicial Council forms are mandatory, while others are optional. Specific Judicial Council forms will be referred to in subsequent chapters. The Judicial Council website can be found at www.courtinfo.ca.gov/courtadmin/jc/. THE TRIAL DELAY REDUCTION ACT In an effort to reduce the delay in resolving civil cases, in 1986 the California legislature enacted the Trial Court Delay Reduction Act, more commonly referred to as fast track. Generally, fast track requires closer judicial supervision of cases, and results in many of the time limits being shortened. At first this was a pilot project and was adopted only in selected counties. It is now in effect throughout the state. Fast track rules require parties to act promptly in serving and responding to pleadings and severely limit the right of attorneys to grant extensions or continuances to one another. Fast track procedures are found in the California Government Code 68603 et seq., California Rules of Court, Rules 205 210 and various local rules of court. The rules are sometimes referred to as Differential Case Management Rules. The California Government Code sets certain minimum time limits that must be allowed for serving and responding to pleadings, but within those limits, each county is allowed to proscribe time requirements within the county. As a California litigation paralegal, you must be aware of any local rules regarding fast track. Important attention must be paid to time limits. CHAPTER 2 The Courts and Jurisdiction KEY POINTS 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 www.courinfo. ca.gov Information Directory to state Courts www.courts.net

4 PART I Introduction to Civil Litigation for the Paralegal UNITED STATES DISTRICT COURTS California is divided into four districts for the federal trial courts: Location Website Northern San Francisco www.cand.uscourts.gov/ Central Los Angeles www.cacd.uscourts.gov/ Eastern Sacramento www.caed.uscourts.gov/ Southern San Diego www.casd.uscourts.gov/ UNITED STATES COURTS OF APPEALS California is in the Ninth Circuit. The court is located in San Francisco. Its website is www.ca9.uscourts.gov/. STATE COURT SYSTEMS The California state court structure is patterned after the federal system and contains trial courts, courts of appeal and one state supreme court. TRIAL COURTS Until June 1998, the California court system consisted of two different types of trial courts, superior courts and municipal courts. In actions for money damages (actions at law), the superior court had jurisdiction to hear cases where the amount demanded, exclusive of interest and costs, exceeded $25,000. The equitable jurisdiction of the superior court extended to all cases except those in which equitable jurisdiction had been specifically conferred upon the municipal court. The municipal courts had jurisdiction over actions at law where the amount demanded was $25,000 or less and in certain specified equitable cases. TRIAL COURT UNIFICATION In 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. The unified courts would all be superior courts. All counties in the state have unified. All trial courts are superior courts and all judges are superior court judges. In spite of the unification, the courts still recognize the differences between cases that were at one time in the jurisdiction of municipal courts and those that were within the jurisdiction of superior courts. Cases (both cases at law and cases in equity) that previously would have been filed in municipal 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 filing fee and more limited discovery. A complete list of all cases designated as limited civil cases is found in sections 85, 86, and 86.1. The following is a list of some of the more common equitable cases now referred to as limited civil cases: 1. Actions to dissolve a partnership where the total assets of the business do not exceed $25,000; 2. Actions of interpleader where the mount of money or the 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 relief is sought in connection with an action to recover money or property not exceeding $25,000 in value; 4. Unlawful detainer (eviction) actions where the total damage claimed is $25,000 or less; 5. Actions to enforce or foreclose liens on personal property where the amount of the lien is $25,000 or less; 6. Actions to enforce mechanics liens (liens against real property for work done on the property) where the amount of the lien is $25,000 or less; 7. Actions for declaratory relief when brought as a crosscomplaint in a limited civil case; 8. Actions for temporary restraining orders, preliminary injunctions, accountings or appointment of receivers where necessary in a limited civil case.

CHAPTER 2 The Courts and Jurisdiction 5 In addition to original jurisdiction, the superior court also maintains an appellate division that hears appeals from limited civil cases. In exercising appellate jurisdiction, three superior court judges review a case as a panel, in the same way that any court of appeals functions. SMALL CLAIMS COURT A small claims division exists in all superior courts. In general, small claims courts have jurisdiction to hear cases where the amount in controversy is less than $5000 (CCP 116.220). In most cases, parties in small claims court proceedings are not allowed to be represented by attorneys. As a result, the procedures are kept fairly simple and only the defendant is allowed to appeal. Such an appeal is filed in the superior court and results in a retrial of the case. Parties are allowed to be represented by attorneys in a small claims court appeal. Second Appellate Third Appellate Fourth Appellate Fifth Appellate Sixth Appellate Del Norte, Contra Costa, Alameda, and San Mateo San Luis Obispo, Santa Barbara, Ventura, and Los Angeles Siskiyou, Modoc, Trinity, Shasta, Lassen, Tehama, Plumas, Colusa, Glenn, Butte, Sierra, Sutter, Yuba, Nevada, Yolo, Placer, Sacramento, El Dorado, San Joaquin, Amador, Calaveras, Alpine, and Mono Inyo, San Bernadino, Riverside, Orange, San Diego, and Imperial Stanislaus, Tuolumne, Merced, Mariposa, Madera, Fresno, Kings, Tulare, and Kern Santa Clara, Santa Cruz, Monterey, and San Benito COURTS OF APPEAL California is divided into six appellate districts. The larger districts are further divided into divisions. Like their federal counterpart, these courts are primarily courts of review. They hear appeals from cases of unlimited jurisdiction originally tried in the superior court. Cases are heard by a three-judge panel and the majority decision prevails. The following is a list of the counties within each of the six districts: First Appellate San Francisco, Marin, Sonoma, Napa, Solano, Lake, Mendocino, Humboldt, STATE SUPREME COURT California 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 the United States Supreme Court, the exercise of that jurisdiction is usually discretionary. To request a hearing in a civil case before the state Supreme Court, a party files a petition for review rather than a petition for a writ of certiorari (Rule 28, Calif. Rules of Court). JURISDICTION SUBJECT MATTER JURISDICTION The superior court has subject matter jurisdiction over all civil cases not within the exclusive jurisdiction of federal court. CHALLENGING SUBJECT MATTER JURISDICTION Subject matter jurisdiction in California is often challenged by filing a special pleading known as a demurrer in response to the complaint (CCP 430.10). Lack of subject matter jurisdiction can also be raised in the answer as an affirmative defense. PERSONAL JURISDICTION OVER DEFENDANT Personal jurisdiction over the defendant in an action is controlled by CCP 410.10: A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States. Thus, if a defendant is domiciled within the state or has sufficient contacts with the state to satisfy constitutional due process requirements, the state courts can exercise personal jurisdiction over that defendant. Whether a defendant has sufficient contacts with the state is a question of fact to be determined in each case. Case law is important in this determination. One such case is Pavlovich v. Superior Court, 29 Cal. 4 th 262 (2002), a case dealing with the important question of personal jurisdiction over nonresidents whose contacts with the state are through the Internet. In Pavlovich a non-resident who posted a program s source code on the Internet was sued in California for misappropriating a trade secret of a California corporation. The California Supreme Court held that simply posting the source code on the Internet was not sufficient to give the California court jurisdiction over the non-resident. NOTICE The exercise of personal jurisdiction over a defendant is dependent on proper notice or service of process. In

6 PART I Introduction to Civil Litigation for the Paralegal California, service of process is described in sections 413.10 417.40 of the Code of Civil Procedure. Service of process is discussed in more detail in Chapter 5. CHALLENGING PERSONAL JURISDICTION In California, personal jurisdiction must be challenged by a special appearance, that is an appearance made for the sole purpose of challenging the jurisdiction. A motion to quash service of the summons is the most common way of doing this (CCP 418.10). A defendant who files an answer or a demurrer without simultaneously making a motion to quash waives any defect in the exercise of personal jurisdiction by the court and thereby confers personal jurisdiction on the court. VENUE STATE COURT VENUE Venue in state court actions is generally covered in sections 392 402 of the Code of Civil Procedure. Any county or judicial district in which any of the defendants reside at the commencement of the action is usually a place of proper venue. If the action is for damages for personal injury or death, the action can also be maintained in the county in which the injury occurred. Contract disputes can usually be maintained in the county where the contract is to be performed, in the county in which the contract was entered into, or in the county in which the defendant resides at the commencement of the action. If the action is one regarding title to real property, recovery of real property, or foreclosure of a lien on real property, the county where the property is located is usually the county of proper venue. CHANGING VENUE A motion for change of venue in a California action is governed by sections 396b and 397 of the Code of Civil Procedure. The grounds for such a motion in general civil cases are: 1. The court designated in the complaint is not a proper court; 2. An impartial jury cannot be had in the county in which the 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 to another court of proper jurisdiction (CCP 398). The code also requires that certain costs and fees be paid in connection with the transfer (CCP 396b and 399).