NOTE: CALL IT CAUSE OF ACTION, NOT CLAIM

General Note: Fast-track is REALLY not a reality at this point.

Chapter 3. Pleadings and Joinder

A. Complaint

1) Signature requirements: generally atty signs pleadings, not client.

2) Special Filing Requirements 118
a) Usually filing a complaint starts the lawsuit, BUT sometimes a party may have to do something
BEFORE file a complaint
i) Cover SHEET: CCR 3.220: The first paper filed in an action or proceeding must be accompanied
by a case cover sheet
ii) Independent assessment Requirements:
(1) CCP 411.35: In every suit, arising out of the professional negligence of (certain types of
professionals including architects, engineers), on or before service of complaint, a party shall
serve certificate of merit stating expert was consulted and will attest to that merit.
(2) Alleging conspiracy w/ D and P’s atty: P must get a court order first. §1714
(3) Right to sue letter must be obtained for certain types of employment suits.
(4) Vexatious litigants must obtain permission to sue under CCP 391 (@ least 5 non-small claims
suits in last 7 yrs)
(5) Whistle Blower must exhaust administrative remedies §8547
iii) Failure to do these will usually allow for a motion to strike or demurrer. Typically no leave to
amend. So you are completely SOL! Usually total bar to fail to do these things.
iv) Prefiling notice requirements:
(1) State employees must file complaint w/ State personnel board before filing a complaint in
actual court (includes state operations like state universities).
(2) Med Mal: CCP 364: 90 days prefiling notice to healthcare service providers for
professional negligence. Rule is to screen out invalid cases & encourage settlement. CCP
365: failure - state bar discipline.
v) Govt SUIT Requirements;
(1) Before suing GOVT for personal injury, P’s must file a NOTICE to the appropriate public office,
w/i 6 mo of accrual of the claim. Breach of K notice can be filed w/i 12 mo of accrual. Must
make entity aware of essential information re alleged wrongdoing or you WAIVE suit.
(a) Government Code § 905 requires that “all claims for money or damages(Tort, break of K)
against local public entities” be presented (give NOTICE) to the responsible public entity
before a lawsuit is filed. Failure to present a timely claim bars suits. (Stockton)
(i) Notice: Must include essential info about alleged wrongdoing & relief sought
(ii) Can’t file action until receipt of written notice of denial or passage statutorily-
defined period, implying rejection
(iii) K w/ public entities (Stockton): K claims against public entities fall under Gov.
Claims Act
 (iv) Professor: If you have a claim against GOVT of PUBLIC ENTITY of some king, you will
probably have to send SOME type of notice.
(b) Exceptions to §905:
(i) 1) Revenue & Tax code; 2) claims where filing of notice, statement of claim, or stop
notice is required for LIEN claim; 3) workman’s comp; 4) public assistance programs
(eg welfare); 5) public retirement or pension; 6) bonds, notes, debt; 7) by a state
agency; 8) unemployment insurance code; 9) labor code; childhood; 10) Labor code;
11) childhood sexual abuse; 12) education code.
(c) Estoppel rule: A public entity may be estopped from asserting §905 WHEN its agents or
employees have prevented or deterred the FILING of a timely claim by an Affirmative act;
ie when state entity does something that PREVENTS P from TIMELY FILING CLAIM.
1. usually this arises from misleading statements about the need or advisability of a
claim; actual fraud or intent to mislead is NOT required. (Stockton)
b) City of Stockton v. Superior Court : 120
i) Facts: City acted shady to contractor it hired, Civic. Civic brought a breach of K action before first
giving notice as required per §905.
ii) D Demurrer: K claims barred because P had failed to comply with the government claim
requirements
iii) TC: overruled Ds' demurrer, deciding that the claim requirements did NOT apply to plaintiff's
breach of K causes of action.
iv) Issue: Whether §905 applies to breach of K cases w/ govt? YES – clearly claim for $ & damages.
v) Issue: Whether P waived defense under §905 by: a) failing to notify P that claim was defective,
OR b) by cross-complaining against P, OR c) by failing to raise the act in first 2 demurrers.
(1) : §910.08 states: If, in the opinion of the board, a claim as presented fails to comply w/ §910,
the board may give written notice of its insufficiency. §911: any defense as to sufficiency
based on defect or omission is WAIVED if no notice is given per §910.08.
(2) CT: This is APPLICABLE when you PRESENT case to them.. which P did NOT.
vi) Conclusion: §905 is applicable & no leave to amend b/c action BARRED.
vii) NOTICE: Normally parties are given LEAVE to amend, but FAILING to do THIS means you are can
NOT sue anymore. They lost their chance at notice and now the case is pretty much dismissed;
they were given leave to amend but obviously (like the court said) they havent been able to
advance an argument yet so they probably wont later.
3) Pleading Causes of Action 126
a) Petitions Vs Complains 126
i) Complaint: Typically initiates a court action.
ii) Petition: Some actions however, are commenced by a petition rather than a complaint in CA. EG
petition to dissolve a marriage.
b) ‘‘Notice’’ Versus ‘‘Fact’’ Pleading 126
i) Fact Pleading: CCP 425.10: cause of action must include a statement of the facts constituting
that cause of action. (a)(1): "statement of the facts constituting the cause of action, in ordinary
and concise language
ii) Notice Pleading: FRCP 8: claim must contain short and plain statement
(1) Main Difference: CA requires Party is to plead ULTIMATE facts, NOT evidentiary or
CONCLUSORY facts.
 (2) ULTIMATE FACTS:
(a) An actual FACT must be plead for EACH element of the theory of liability for a valid prima
facie case.
(b) CCP 430.10(e): A complaint & a D’s cross=complaint, are subject to a general demurrer for
failing to state facts sufficient to constitute a cause of action.
(c) Exception: R: CA state courts MUST apply FED NOTICE PLEADING STANDARDS when
determining whether a complaint can survive a demurrer for a claim under federal
statutes.
(d) Professor: need facts to support each element. These facts SHOULD NOT be
conclusory/ultimate facts like an element.. they should be the proof/info that validates the
element.
(e)
iii) Bockrath v. Aldrich Chemical :
(1) Facts: P developed multiple myeloma. No idea what ACTUALLY causes it, works with
HUNDREDS of dangerous chemicals. Sues 50 D’s. Complaint just says during course of work,
he was exposed to these chemicals that were improperly stored & ventilated.
(2) R: In an ORDINARY personal injury case, factual recitations plainly show the connection b/w
cause & effect; THUS it is sufficient to plead causation generally. HOWEVER certain suits, like
negligence (& fraud & statutory causes of action), require pleading w/ particularity to give
rise to an inference of causation.
(3) granted leave to amend and allege facts that EACH D manufactured a product that was a
SUBSTANTIAL FACTOR in CAUSING his disease; (exposure to each, which toxin dangerous,
how got into his body, chemicals substantial factor)
iv) Notes and Questions 132
(1) Fraud Cases: CA supreme court requires STRICT PARTICULARITY in pleadings for EACH
ELEMENT; must be SPECIFICALLY & FACTUALLY plead. General pleadings of legal
conclusions are insufficient;
(a) SC: They involve a serious attack on character and fairness to the D demands that he
should receive the FULLEST possible details of charge in order to prepare.
(b) Exception: ENTITY D’s when it appears by the nature of the allegations that the D MUST
necessarily possess full info concerning the facts of the controversy. eg press
releases/annual reports by co containing fraud.
(2) Statutory Claims: Must also be plead w/ particularity.
(3) Ordinary negligence: CAN be plead in GENERAL terms w/o specificity to the precise act or
omission.
(4) Negligence against PUBLIC ENTITY: Since this is under the Gov’t claims act, the general rule
that statutory causes of action MUST be plead w/ particularity is applicable.
(5) R: To state a cause of action against a public entity, EVERY FACT material to the existence of
its statutory liability MUST be plead w/ PARTICULARITY.
c) Form Pleadings
i) Purpose: Making the process easier, cheaper – giving access to ppl to do it themselves
ii) 425.12(a): The Judicial Council shall develop and approve official forms for use in trial courts of
this state for any complaint, cross-complaint or answer in any action based upon personal injury,
property damage, wrongful death, unlawful detainer, breach of contract or fraud.
iii) People ex rel. Department of Transportation v. Superior Court :
(1) Complaint Simply stated: P maintained highway dangerous way  accident  injry.
(2) Form pleadings R: Judicial counsel forms (FORM PLEADINGS) have NOT changed the
statutory requirements that complaints MUST contain “facts constituting the cause of action“;
 even they MUST contain whatever ULTIMATE facts are essential to state a cause of action
under existing law.
(3) Professor: ONLY allege enough facts to survive a demurrer, NOT EVERYTHING. Dont put all
your cards out on the table.
(a) All you are doing is providing fodder for all their discovery requests.
(b) They always ask for all PPL and info associated w/ EACH fact on complaint.

4) Demand for Judgment

a) Statement of damage:
i) Demand: Complaint must contain a "demand for judgment for the relief " §425.10)(a)(2).
ii) Damages: "the amount demanded shall be stated" in the complaint."
(1) Exception: Personal Injury and Wrongful Death Actions: P may not state the amount of
actual (compensatory) or punitive damages in the complaint. §425.10(b). To reveal the
amount P seeks, P may serve on the D or the D may request from P, a separate "statement
setting forth the nature and amount of damages being sought." §425.11(b). No default
judgment may be entered against the D unless the P has served a statement of damages.
(2) Exception: Claims for Punitive Damages: P is prohibited from including in any complaint
amount of punitive damages sought. §3295(e). If P intends to seek an award of punitive
damages, right is preserved by serving on D a statement of punitive damages. §425.115. P
must serve the D with statement of punitive damages if seeks a default judgment that includes
an award of punitive damages w/ AMT stated. §425.115(f). Schwab v. Rondel Homes Inc.
(3) Filing Options: If personal injury or wrongful death P seeks punitive damages, must also
serve statement of punitive damages, either as separate doc or as part of §425.11 statement
of damages. §425.115(e).
iii) How to find out if D has $$$$$!
(1) Generally cant find out financial info about another party UNLESS it is in controvery (which is
not that hard for P to do.. just make a claim that puts it in controversy.. battery?) But for
punitive it is different.
(2) §3294 provides the vehicle for plaintiffs to bring a motion seeking the court’s permission to
conduct discovery into financial records of the defendants that might otherwise be prohibited
by law.
(a) P Must: P must be able to establish, through affidavits and other evidence, that he or she
“has a substantial probability to prevail on the claim for punitive damages,”. Then the
Court is within its right to grant the discovery once D makes a motion under 3294.
(i) Strong probability in this context means VERY LIKELY or a strong likelihood (jabro)
(3) Professor:
(a) You can NOT discover financial condition during trial.
(b) There is a motion which allows you to do this however, in advance of trial.
(c) HARD motion to win b/c you have to show strong probability of winning the punitive
damage claim
(d) This is very personal and private information so it makes sense b/c P would use this info
to discover doctors info in med mal co. Basically it was a tactic used at one point to get
people to settle just for privacy reasons.
(e)
b) Punitive Damages Limitations
i) CCC § 3294(a): In an action for the breach of an obligation not arising from contract, where it is
proven by clear and convincing evidence that the defendant has been guilty of oppression,
fraud, or malice, the P, in addition to the actual damages, may recover punitive damages for the
sake of example and by way of punishing the defendant.
 (1) Limitations:
(a) Only available for breach of an obligation; NOT for breach of K even w/ malice
(b) Employer is NOT liable for punitive damages based on ACTS of EMPLOYEE UNLESS
employer had advanced knowledge & still employed individual w/ disregard for
rights/safety of others OR authorized or ratified wrongful conduct.
(c) Professional negligence of health care provider: CCP 425.13: No claim for punitive
damages shall be allowed UNLESS court enters order allowing punitive damages in an
amended pleading. Court may enter order ONLY if P establishes substantial probability of
prevailing. CCP 425.14: Same 4 suit vs. religious org. (arising out of HEALTHCARE neg)
(i) Amended pleading when punitive first sought MUST be filed w/i 2 years after
complaint OR no less than 9 mo before trial date.
(ii) Basically cant plead claim for punitive damages against health care providers or
religious organizations UNLESS you have prior court approval and the court will only
give that approval if P can satisfy the standard below w/i the prescribed time frame.
(d) “Clear & convincing evidence“ = higher standard than preponderance of evidence.
ii) College Hospital, Inc. v. Superior: Argument about what SHOWING is required for 425.13
(1) H: 425.13 requires P to move amend complaint very early for punitive damages, maybe before
discovery is complete; thus it does not contemplate a mini-trial in which witness testimony is
introduced but instead is more like a demurrer decided entirely on an "affidavit” or pleading.
(2) R: the motion requires the plaintiff to demonstrate that he possesses a legally sufficient claim
which is "substantiated," that is, supported by competent, admissible evidence.
(3) P can NOT move to amend for punitive unless he both states and substantiates a legally
sufficient claim.
(a) the court must deny the motion where the facts asserted in the proposed amended
complaint are legally insufficient to support a punitive damages claim (oppression, fraud,
or malice,) SO state enough facts to show triable issue of fact on 3 above
(b) The court also must deny the motion where the evidence provided in the "supporting and
opposing affidavits" either negates a triable claim or fails to reveal the actual existence of a
triable claim. & D’s opposition can NOT negate that triable issue.

5) Economic Litigation Procedure:

a) History: CA legislature concerned that rising cost of lit was having bad impact on judicial/lit
system/
i) Solution: Developing pleading, pretrial & trial procedure which will reduce expense of lit to
litigants in cases involving less than 15k. CCP: Part 1, Title 1, CH 5.1 See all of CCP 93.
ii) CCP 92(c): Special demurrers are not allowed.
iii) CCP 92(d): Motions to strike are allowed ONLY on the ground that the damages or relief sought
are not supported by the allegations of complaint.
iv) CCP 93(a): The plaintiff has the option to serve case questionnaires with the complaint, using
forms approved by the Judicial Council. The questionnaires served shall include a completed copy
of the plaintiff's completed case questionnaire, and a blank copy of the defendant's case
questionnaire.
v) CCP 94(b): One oral or written deposition.
vi) CCP 98: Rather than oral testimony, a party may offer the prepared testimony of relevant
witnesses (Inc experts) in the form of affidavits or declarations under penalty of perjury.
b) Subscription: CA pleadings must be subscribed by the attorney or unrepresented party.§446(a).
Absence of signature does not render it void.
c) Verification: P has the option of filing a verified or unverified complaint, but in some actions it is
required. Verified pleadings enjoy an evidentiary value bc is itself a sworn affidavit.
 i) Exception: in limited civil cases and cases involving gov. D's, answer to a verified complaint must
be verified by the D, thus includes specific denials, rather than general.
ii) Verification (§ 446): Supply complaint w/ affidavit (sworn under oath) stating allegations are
true of his own knowledge, except those that are only based on his information or belief
iii) Verified complaints: Respondent must respond to every single allegation; answer must also be
verified
iv) Application:
(1) Suits against Gov: If ∆ is the Gov., then π must verify complaint, but Gov. doesn’t need to verify
answer
(2) Injunctions / Restraining Order Suits: Must verify complaint for injunctions or RO’s as relief
v) Out-of-state: If party is out of country, attorney may verify

B. Responses
1) 1. General Demurrer
a) General Demurrer: CA tool for formally asking a TC to rule on the sufficiency of the factual
allegations in a pleading under code pleading standards (430.10a & e; 430.20a)

i) 430.10(e): General demurrer contends that the complaint fails to “state facts sufficient to
constitute a cause of action“ May address entire complaint or any individual COA w/in it.
ii) §430.10 D may file demurrer instead of or at same time as filing answer. §430.30(c). P may file
demurrer against D's answer.
iii) Answers 430.20(a): also subject to general demurrer on the grounds that it fails to state facts
sufficient to constitute a defense.
iv) 430.30(a): Lack of SMJX can also be raised on a general demurrer.
v) 430.30(a): Basis fr demurrer appears ON ITS FACE; no examination of evidence or ruling on the
merits.
vi) Standard: It is NOT the ordinary function of a demurrer to test the truth of the plaintiff's
allegations or the accuracy with which he describes the defendant's conduct. A demurrer tests
only the legal sufficiency of the pleading. It admits the truth of all material factual allegations
in the complaint; the question of plaintiff's ability to prove these allegations, or the possible
difficulty in making such proof, does NOT concern the reviewing court.
(1) if reasonable minds of jury could differ, this is a Q of fact and NOT of law. The SC in sheehan
seems to assert that this COULD be a Q of fact mattering on Ds answer. Thus the demurrer
would have to be OVERRULED. Here it appears that someone could see this as an invasion,
thus the judge should overrule.
vii) Leave to amend: Normally judges DONT sustain demurrer w/o leave to amend to facilitate lit on
the merits BUT the judge MAY deny eventually & then P must appeal to resurrect the case.
viii) If there is a REASONABLE possibility that an amendment will cure an inherent defect in a
complaint, a reviewing court should NOT affirm a TC order granting judgment on the pleading or
Demurrer UNLESS the P has been given an opportunity to amend.
ix) AC: When reviewing judgment sustaining a demurrer w/o leave to amend, AC MUST reverse for
further proceedings if the P has feasibly stated a cause of action under ANY possible legal theory.
b) Professors comment on Demurrers:
i) Good attys RARELY file demurrers.. or never. WHAT? WHY?
ii) Judges hate granting them w/o leave to amend because of the principal that CASES SHOULD BE
TRIED ON THEIR MERITS.
iii) Notice the Tension: leaving cost of lit down vs allowing cases to be judged on merit not
technicality.
 iv) Judges NEVER/RARELY ever grant demurrer w/o leave. If they do that is an AUTOMATIC grant
reversal in AC.
v) THUS... why would an atty file... all your doing is showing the opposing party the weakness in
their case. AND why would you do this especially when you now the judge will NOT grant it.
c) General standard:
i) R: In reviewing the sufficiency of a complaint against a general demurrer - CT treats the demurrer
as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of
fact or law. The court also considers matters which may be judicially noticed. Further, the court
gives the complaint a reasonable interpretation, reading it as a whole and its parts in their
context. When a demurrer is sustained, the court determines whether the complaint states facts
sufficient to constitute a cause of action.
ii) Judge is only to gauge if there is a triable issue; ie whether a reasonable jury could differ or find
for the P.
2) Special Demurrer
a) Attack sufficiency of complaint on alternative grounds, e.g., lack of legal capacity to sue; another
action pending between same parties; defect/misjoinder of parties; failure to disclose whether K is
oral or written; failure to file certificate required as a condition for filing certain types of cases 430.10
b, c, d, f, g, h & i; 430.20b & c
b) Differences:
i) CCP 92(c): Special demurrers are NOT allowed in LIMITED civil cases.
(1) Instead these can be raised as affirmative defenses in the answer.
c) Judicial Notice:
i) Judicial notice: Rule that allows a party to ask the court to take judicial notice (consider w/o
formal proof) certain matters not set forth in the original complaint or pleading.
(1) “Facts and propositions that are of such common knowledge that they can NOT reasonably be
disputed“ AND/OR
(2) “Facts & propositions that are NOT reasonably subject to dispute and are capable of
immediate & accurate determination by resort to resources of reasonably indisputable
accuracy“
ii) 430.30: Allows courts to take judicial notice on demurrers.
iii) Normally on demurrer the judges only look to the four corners of the pleading for a decision,
HOWEVER judicial notice allows them to consider matters outside of that pleading.
iv) SO, although the facts in a pleading are GENERALLY taken as true, the court can take judicial
notice of contrary facts outside of the pleading.
v) Judicial notice however, does NOT equate to an acceptance of truth. Judicial notice can
ONLY be dispositive (settles conflict) where there is NOT or can NOT be a factual dispute
concerning that which is sought to be judicially noticed.
3) Timing:
a) Demurrer or Motion to strike GRANTED  w/ leave to amend:
b) Non-movant: If court grants demurrer / motion to strike w/ leave to amend, then non-movant has
10 days to amend pleading after Ct. grants demurrer ruling w/ leave to amend
i) Amended Complaint (§ 586 (a)(1)): Movant has 30 days to respond to amend.

4) Motion to Strike: §435-437

a) MTS. designed to remove irrelevant/improper matters that should NOT remain in pleading. §436(a)
b) CCP 436: The court may, on motion or its own discretion strike out any irrelevant, false, or improper
matter inserted in ANY pleading (demurrer, answer, complaint or cross).
c) CCP 437: grounds for a motion to strike shall appear on the face of the challenged pleading or from
any matter of which the court is required to take judicial notice in any pleading.
d) Improper Demand for punitive damages: could be subject to motion to strike.
 e) Specific statutory applications:
i) Cal civ Code 1354(c): failing to provide cert of alternative dispute resolution completion is cause
for motion 2 strike or demurrer.
ii) Cal civ code 1714.10: failing to obtain court order before filing civil conspiracy grounds for
motion to strike.

5) Judgment on the Pleadings: §438

a) Judgment on the Pleadings. commonly employed as a delayed general demurrer, only about
PLEADINGS. D may bring motion after filing an answer and the time to file a demurrer has expired.
§438(f)(2)
i) 438 can ONLY be made on the FACE of the pleading OR on matters the court takes under judicial
notice..
b) 437 is for SUM J & allows introduction of affs & other materials.

6) Motion Practice
a) Motion Practice. Motion is the application to the court for an order. Generally has 3 parts: 1) Notice
of Motion, 2) Motion itself, 3) and Memorandum of Points and Authorities (legal argument) ISO
Motion. Can be filed separately or all in 1 doc. §1010 Filed in Ct & served to opposing side.
i) Notice: Notice must state when and the grounds upon which it will be made, and the papers upon
which it is to be based.
(1) Merely stating that a motion will be about X is NOT sufficient.
(2) If motion or demurrer attacks pleading, it must specifically identify which segment is being
challenged.
(3) Moving party arranged hearing time & date and MUST include this info.
ii) Memo of Points & Authorities:
(1) Legal arguments in support of the motion.
(2) Controlling statutes, rules and precedent.
(3) Can also be filed by party opposing the motion & the moving party will have opportunity to
reply to this.
b) CCP 1005: usually must be served & filed 16 court days b4 hearing; extended for out of state, country
& certain types of mailings.

C. Answer

1) General Requirements: Places all un-admitted material facts in the complaint "at issue". D may not
request affirmative relief in answer, must file cross-complaint . Answer must be filed within 30 days
after service of summons and complaint on D. Filing answer has conseq. of general appearance,
subjecting the D to the PJX of the court UNLESS D simultaneously moves to quash service of summons.
Normally contains 2 components: denials and affirm + defenses.
i) Can say you don’t have info = denial

2) Timing:
a) Time to Respond (§ 412.20(a)(3)): ∆ must answer 30 days after summons served on him
i) Failure to respond: Default entered against ∆

3) General and Specific Denials

 a) Denials. D responds to allegations contained in the complaint by admitting or denying them. Any
material allegations NOT denied are deemed admitted. §431.20(a). The answer must contain a
general or specific denial of the "material allegations" of the complaint.
b) General Denials. Blanket statement that denies all material allegations of an unverified complaint.
General denial not permitted if complaint verified. §431.30(d).
(1) Effect of is to "put at issue material allegations of complaint."
(2) Material allegation: is "one essential to the claim or defense and which could not be stricken
from the pleading w/out leaving insufficient as to that claim or defense." Advantac
c) Specific Denial: commonly pled on a paragraph-by-paragraph basis in response to a verified
complaint. D may specifically deny an allegation (1) directly, based on personal knowledge, (2) based
on information and belief, (3)based on lack of info. §431.30(c-f)
i) Subscription and Verification. Ds attorney or, if not represented, D must sign answer. D must
respond to a verified complaint w/ verified answer. See exception above: gov or limited cases.

4) Affirmative Defenses
a) Generally: Affirmative Defenses: D’s assertion that even if P proved all elements of complaint to
win @ trial, liability could be avoided on independent grounds.
i) D has BofP, which must be pleaded according to fact pleading standards: ultimate facts with
particularity.
ii) Waiver: Most affirmative defenses are waived if not pleaded in the answer.
b) Denials vs Affirmative defenses: Affirmative defenses raise new issues in the lawsuit while
DENIALS alone place the complaints essential allegations at issue; VITAL to know when D must plead
aff D to place NEW matters at issue & when matters have already been placed at issue by denial/
i) Advantec Group, Inc. v. Edwin’s Plumbing Co:
(1) Advantec: D’s issue of non-licensure WAS NOT a new matter b/c it responded to an essential
allegation of P’s complaint – statute REQUIRED licensure; when D generally denied, put all of
P’s claims at ISSUE including non-licensure issue - THUS P had burden to produce certificate
to show licensure status  NOT a new issue!
(2) H: General denial answers put at issue all material allegations of the Complaint and that the
allegation of licensure was a material allegation which was therefor controverted by a General
Denial.
c) Statute of Limitations
i) Basics:
(1) AFFIRMATIVE DEFENSE - must be pleaded in answer. When multiple COA, must separate
each one.
(2) If P files untimely complaint, barred from recovery.
(3) Accrual of COA: SOL GENERALLY begins to run when P suffers actual harm, when the "last
element essential to the COA" occurred. Norgart v. Upjohn Co.
(a) Exception: Discovery rule: When Elements accrued BUT discovery DELAYED – accrual is
ALSO DELAYED until P "suspects/discovers or should suspect injury & negligent cause. P
may discover COA even if identity of D is not known. Obj standard. Jolly v Eli
(i) Discovery rule can EXTEND SOL but NOT shorten it.
(ii) Atty Misadvise: Case against D barred but may have Malpractice against atty.
(4) Tolling of COA: Clock either will NOT start running or will temporarily STOP running.
ii) Ways to change SOL:
 (1) Contract: The SOL can be contracted around. CA case law says that you can actually shorten
the SOL so long as the shortened period is reasonable and one which manifests no undue
advantage/unfairness.
(2) Legislature: The legislature can amend an SOL and it will be retroactive, so long as the
remaining SOL is still a reasonable amount of time for the person to bring an action.
iii) When SOL accrues:
(1) Jolly v. Eli Lilly & Co:
(2) Facts: P here was injured in 1972. She couldn’t find out who manufactured the DES that she
took. She filed in 1981.
(3) Ct: The Court here says that for the discovery rule, the CoA accrues when the P is aware of
the injury and suspects or should have suspected that it was caused by wrongdoing. It breaks
down like this:
(a) She knew of injury & manufacture by DES in 1972 BUT she did NOT she didn’t suspect that
there was wrongdoing until 1978.
(b) R: Discovery of Injury + Knowledge of Cause + Suspicion of Wrongdoing = Accrual under
the Delayed Discovery Rule.
(c) Important Note KNOWLEDGE of CAUSE does NOT mean WHO TO SUE… here P KNEW
drug was cause.. that is enough… don’t need to know who the MANUFACTURER IS…
Knowledge of car accident being cause is enough.. knowing driver doesn’t matter. ALSO
can have different accrual for different D’s b/c might know something is a cause at same
time if more than 1 cause.
(i) DOE PRACTICE KEY!
iv) Tolling SOL:
(1) Tolling of D’s cause of action: When the plaintiff files a complaint, this tolls the SOL on ALL of
the defendant’s COA’s so long as they weren’t barred at the time that the plaintiff filed the
complaint. The defendant can amend his original cross claim as much as he wants, because the
plaintiff’s action tolls his CoAs.
(2) Statutory Tolling. SOL tolled for specific reason (war, minor, incarceration)
(3) Equitable Tolling. judge made doctrine that suspends SOL in interest of practicality and
fairness as long as would not prejudice D.
(4) Statute of Repose Comparison. bar on all suits brought more than a specified period after
the date of manufacture of a product and delivery to the purchaser. Contains an absolute
deadline, regardless of when injury was or could have been discovered. Lantzy v. Centex
Homes No equitable tolling.
(a) No action for … after 10 years: clear that this is MAX statute & no equitable tolling.
(5) Equitable Tolling: Equitable tolling is a judge-made doctrine which operates independently
of the literal wording of the Code of Civil Procedure to suspend or extend a statute of
limitations as necessary to ensure fundamental practicality and fairness. This court has
applied equitable tolling in carefully considered situations to prevent the unjust technical
forfeiture of causes of action, where the defendant would suffer no prejudice.
(i) if the plaintiff believes they have a state and federal CoAs, and in good faith asks for
federal supplemental jurisdiction of the state claim, then the SOL is tolled until the
federal court dismisses the case. But there are three components:
1. The defendant must get notice of the claim before the SOL runs; this means formal
notice that is sufficient to get the defendant to protect his interests through
investigation, etc.
2. There must be lack of prejudice to the defendant,
 3. The plaintiff must act reasonably and in good faith.
(6) Equitable Estoppel: when D is barred from asserting SOL defense/c D’s OWN conduct
induced P to NOT bring timely action w/I applicable period.
(7) Continuing Violation Doctrine: deems subsequent events to be new violations that "re-
start" the running of limitations period.
v) Relation Back of Amendment: If new claim arises out of the same occurrence or transaction of
complaint, then amendment w/ new claim can relate back despite SOL having passed

D. Cross–Complaint

1) Cross Complaint: Pleading that allows D to assert COA against P, co-D, or party not yet part of suit.
§422.10
2) General rules & Timing:
a) Time to File (§ 428.50 / 428.60):
i) May file cross-complaint up until when ∆ has to answer
ii) Time to Answer Cross § 432.10: 30 days
b) Separate doc: Cross-complaint is separate from answer
c) Service by mail: May serve cross on π via mail b/c π already consented to jx.
3) D against P: Compulsory or Permissive:
a) Compulsory Counterclaim. for related COA that "arises from same t/o, or series of t/o", or “same
property or controversy” as those pleaded in the Ps complaint. §426.10(c).
i) Failure to Raise: by time of judgment bars later suit. §426.30(a). Align Technology v. Tran
ii) SOL & Relating back: When the cross-complaint arises out of the same subject matter as the
original complaint, the cross-complaint will relate back to the date the P filed original complaint for
purposes of SOL.
(1) Exception: this only BARS claims that are AVAILABLE at time of SERVICE of ANSWER.
iii) Logical relationship: Relatedness doesn’t require absolute identity of factual backgrounds, but
only a logical relationship. Transaction construed broadly, doesn’t mean SINGLE transaction for
isolated event but may embrace a SERIES of acts logically interrelated.
(1) Ask: any FACTUAL or LEGAL issues relevant to BOTH CLAIMS?
(2) Align tech v Tran: Claim 1: corp raid against various employees inc Tran; This claim: D’s
misappropriation  CT said both AROSE out of ONE EMPLOYMENT RELATIONSHIP.
iv) Timing: Before answer, after answer must get leave of court (granted unless bad faith).
v) Exceptions:
(1) No personal jx. over party
(2) No subject matter jx.
(3) Person who failed to plead related cause of action did not file an answer to the complaint
against him
(4) Indispensible co-parties
(5) Subject of other pending action
(6) Special proceedings
(7) Small claims actions
(8) When P is seeking only declaratory relief. HOWEVER, if any party to the action seeks a
remedy other than declaratory relief, the compulsory joinder provisions apply.
(9) When P files an action in interpleader, no compulsory cross-complaints may lie against that
person or entity.
b) Permissive Counterclaim: D may file claims against P that are NOT related to the subject matter of
P’s complaint. §428.10.
 i) SOL & Relating back: Subject to own SOL and does not relate back.
4) Cross-Complaints by D against Co-D or Third Party: always permissive.
a) COA MUST arise out of the same t/o, or series of t/o, property or controversy that is the subject COA
brought by the P against cross-complaining D. No leave of court required before trial date is
set. 428.10(b).
i) The party defending a complaint or cross-complaint may file a permissive cross-complaint
against a co-defendant or against a third party who might not already be a party to the suit. In
both of these situations, the cross-complaint MUST arise out of the same transaction or
occurrence s the original action, or involve the same property or controversy. Even though a
relationship is required between the causes of action in the plaintiff’s complaint and those in the
∆’s cross-complaint, such cross-complaints are never compulsory. The ∆ is free to raise its
causes of action against co-defendants or third parties in a separate lawsuit, assuming the
applicable SOL has not already expired.
ii) Such cross-complaints against co-defendants or third parties are often brought for indemnity or
contribution:
(1) Two Basic types of Indemnity:
(a) Express indemnity and
(b) Equitable indemnity
(i) ∆s are permitted to file a cross complaint against a concurrent tortfeasor for equitable
indemnity on a comparative fault basis.
(ii) Because an indemnity action is separate and distinct from the plaintiff’s original action
against the ∆, the ∆ has the option of waiting until the ∆ has paid a judgment or
settlement before seeking indemnification.

E. Amendments

1) General Practice: Some amendments are permitted as a matter of right, others need a court order.
Amendments making material substantive changes trump original pleading. Amended complaint must
be served on all opposing parties, who must file new responsive pleadings.
a) Typically used when demurrer or M2S granted or when new info surfaces.
b) Amendment as a Right: Party may amend pleading once as a matter of right before a responsive
pleading (answer or demurrer) is filed, OR after a demurrer is filed and before it is heard. §472.
c) Amendments by Court Order: 2nd amend or outside of time frame – need court order.
i) Leave to amend: should be granted GENEROUSLY under discretion of ct to avoid FORFEITURE
of COA as long as requesting party acted in GF. §426.50.
d) Service: Must serve opposing party w/ amendment
2) Typical Amendments:
a) Cure a Pleading defect (ie adding missing fact),
b) Add a theory of liability or defense that emerges during discovery, OR
c) Add a party
3) Timing: after amended complaint is served, D has 30 days to answer amended complaint. after answer
is amended, P has 10 days after service to demur to the amended answer. when court sustains a
 demurrer or motion to strike, often grants 10 days leave to amend, unless courts specifies a different
time.
4) Doe D: Can amend to add Doe D’s w/in 3 years if there were charging Doe D allegations in complaint.
a) 211
5) Relation Back 212
a) 1) SOL and 2) Relation Back Doctrine: Amendments to add new COA or new parties may be subject
to the bar by SOL unless relation back doctrine applies.
b) ‘‘New’’ Causes of Action:
i) For claim or defense to be added & relate back to original pleading, it must assert cause of action
or defense arising out of same conduct descried:
(1) rests on same general set of facts (Davaloo v. State Farm Insurance Co – insufficient facts
original, cant ADD facts to amended. Must allege enough facts to support that new COA if you
are adding it)
(a) Notice: if you FAIL to allege enough facts for fact pleading standard & SOL runs out, even
for 1st amend complaint as a right, you can be BARRED. If you are UNSURE, go a little more
broad – if don’t know what caused injury – say a dangerous instrument @ place.
(2) involves same injury, AND (personal injury vs property injury)
(3) refers to same offending instrumentality as original pleading. (failure to warn v. negligent vs
product liability; electrocution by one thing vs by another)
ii) Note: different legal theories or CoA are OK as long as above satisfied
iii) Exception for D: Tolling of D’s cause of action: When the plaintiff files a complaint, this tolls the
SOL on ALL of the defendant’s COA’s so long as they weren’t barred at the time that the plaintiff
filed the complaint. The defendant can amend his original cross claim as much as he wants,
because the plaintiff’s action tolls his CoAs.
iv)
c) ‘‘New’’ Parties and Doe Defendants:
i) Doe D’s: you’re amending to add completely new defendants or Plaintiffs. Normal relation back
deals with things, Doe relation back deals with people—it’s possible to have to deal with both
from just one amendment. §474.
ii) CA practice for new defendants:
(1) The P must file an action against at least one named defendant before the SOL runs,
(2) The P must be ignorant “of the identity” of Doe D in GF,
(a) This doesn’t mean ACTUAL name.. even if knows name.. includes ignorance – lack of
knowledge – of persons CONNECTION w/ the case or the P’s injuries.
(3) The P must plead this ignorance in the complaint,
(4) The P must allege a CoA against the Does,
(5) The amended complaint (with a Doe filled in) should be based on the same facts as the
original,
(6) The P must serve the amended complaint within three years of filing the original; this is the
limit because that is the mandatory time limit on service of process.
iii) Fuller v. Tucker: Complaint filed injury caused by operation. Doe in complaint. Anesthesiologist
tucker added after SOL up. Claims she didn’t know that injury by anesthetic shock & did not know
that D was the anesthesiologist. D claims name all over papers & knew anesthetic part of surgery.
RPP would have known.
 (1) R: Ignorance of IDENTITY is NOT just about name – it includes ignorance of connection w/ P’s
injuries.
(2) R: Having MEANS to obtain the KNOWLEDGE is irrelevant.. no duty to investigate

F. Truth in Pleading
1) Frivolous Pleadings: see all of §391 for Vexatious lit.
a) Vexatious Litigants: means a person who does any of the following:
i) In last 7 years, has commenced five litigations other than in a small claims in pro per (w/o atty)
that were determined against him OR unjustifiably allowed to stay 2 years w/o bring to trial.
ii) After a litigation has been determined against the person, tries to relegate in pro per against
either same D’s OR same controversy (notice no time frame)
iii) In any litigation while acting in propria persona, repeatedly files unmeritorious motions,
pleadings, requests – frivolous tactics; OR (notice no time frame)
iv) Previously been declared to be a vexatious litigant by any state or federal court on same matter.
b) Motion allows D to dismiss claim by showing P is a vexatious litigant AND that there is not a
reasonable probability that P will prevail in the litigation against the moving D. §391.1.
c) Professor: Once you are added as a vexatious litigant - the person CAN NOT file w/o getting
permission. Makes it almost impossible to refile. EVEN if you now are NOT pro per you still need
permission.
d) Vexatious Attorneys?
i) Atty can NOT be charged as vexatious litigant when acting for a client.
ii) INSTEAD atty can be SANCTIONED for adhering slavishly to clients demands. §128.7

2) Anti–SLAPP Motions
a) SLAPP: Strategic lawsuit against public participation.
i) In California, a SLAPP lawsuit is a lawsuit brought primarily to discourage speech about issues of
public significance or public participation in government proceedings.
ii) You can use California's anti-SLAPP statute to counter and challenge a SLAPP suit filed against
you. The CA anti-SLAPP statute gives D the ability to file a special motion to strike (i.e. motion to
dismiss) the complaint brought against them for engaging in protected speech or petition
activity.
iii) Basically law suits against someone engaged in exercising constitutional right of free speech or
petition who are then sued (by a SLAPP), where the P hopes to chill the D from exercising that
right. Basically trying to financial hurt D from talking; no merit to suit or care for winning.
iv) Generally brought by large private interest against common citizens
v) Function to deter or punish citizen from exercising political or legal right.

b) Anti-Slapp statute: Legislature needed something else to protect public interest to encourage
continued participation in matters of public significance and participation SHOULD NOT be chilled
through abuse of judicial process so the Anti-SLAPP statute was enacted.
i) Target is abuse of JUDICIAL process so does NOT apply to arbitration.

ii) CCP 425.16: (b) (1) A cause of action against a person arising from any act of that person in
furtherance of the person's right of petition or free speech under the US or CA Constitution in
connection with a public issue shall be subject to a special motion to strike (DISMISS whole
THING), unless the court determines that the P has established probability that he will prevail on
claim.
iii) Process:
(1) D MUST be engaged in constitutionally protected activity
(a) D then makes prima facie showing that P ‘s cause of action ARISES from an act in
furtherance of the D’s 1st amend rights. (intent to chill right NOT needed). 4 acts:
(i) any written or oral statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law;
(ii) any written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any other official
proceeding authorized by law;
(iii) any written or oral statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest; or
(iv) any other conduct in furtherance of the exercise of the constitutional right of
petition or the constitutional right of free speech in connection with a public issue or an
issue of public interest.
(b) Illegal, constitutional speech: Statute does NOT protect illegal speech, e.g., extortion.
Atty gave public detail about rape case. (Flatley): D in rape case sued P’s atty for fraud,
defamation & extortion. Atty files anti-slapp. Ct said anti-slapp will NOT protect criminal
extortious speech.

(2) If step satisfied, burden shifts to P to establish a probability of prevailing on the merits. NO
leave to AMEND allowed here. Must establish as is – if doesn’t the whole case DISMISSED.
(a) Must show that complaint is LEGALLY sufficient & supported by prima facie showing of
facts sustaining a favorable judgment @ trial.
(b) Can be supported by affs and other docs; Similar to SUM-J motion. Proof MUST be made on
competent ADMISSIBLE EVIDENCE.
(c) Court does NOT weight evidence, simply determines if P has made prima facie showing of
facts necessary to establish claim @ trial.

iv) Timing: 425.16(f): Must be filed within 60 days of the service of the complaint or, in the court's
discretion, at any later time upon terms it deems proper.
v) Effect on Discovery: 425.16(g): All discovery proceedings STOPPED once motion is filed. The
court, on noticed motion and for good cause shown, may order that specified discovery be
conducted
vi) Fees and Costs: Mandatory Attorney Fees and Costs for Prevailing Party §425.16(c)
If D does
prevail on its motion and the court rules in D’s favor, it will dismiss the P’s early in the litigation
and award D attorneys' fees and court costs. (Now, proceed to SLAPPback, below)
vii) Appealability: 425.16(i): Motion decision appealable IMMEDIATELY, w/o final judgments,
whether granted or denied.
viii) Motion to Quash:
(1) In addition, if a party to a SLAPP suit seeks personal identifying information, CA law allows
you to make a motion to quash the discovery order, request, or subpoena.
(2) In addition to creating the motion to strike, the statute also allows a person whose personal
identifying information is sought in connection with a claim arising from act in exercise of
anonymous free speech rights to file a motion to quash -- that is, to void or terminate the
subpoena, request, or discovery order seeking your personal identifying information so you
do not have to provide that information.
(3) When you make your motion to quash, the court "may" grant your request if it is "reasonably
made." In reviewing your motion, the court will probably require the plaintiff to make a prima
facie showing, meaning he or she must present evidence to support all of the elements of the
underlying claim (or, at least, all of the elements within the plaintiff's control). If the plaintiff
 cannot make that showing, the court will probably quash the subpoena and keep your identity
secret.
(4) If your successful motion to quash arises out of a lawsuit filed in a California court, the judge
has discretion to award expenses incurred in making the motion. The court will award fees if
the plaintiff opposed your motion "in bad faith or without substantial justification," or if at
least one part of the subpoena was "oppressive." But note that if you lose your motion to
quash, and the court decides that your motion was made in bad faith, you may have to pay the
plaintiff's costs of opposing the motion.
ix) Issues:
(1) Appealability issue b/c even meritless anti-slap can be automatically appealed & TC stayed.
(2) Also began to be MISUSED. Corp D’s Ads or misrepresintation suit  would bring anti-slap
against private P’s; they would scare the crap out of private P’s b/c of the fee rules & corp
attys VERY expensive.
(a) 2004 Amend: tried to exclude this type of use by BIG CO’s in these types of cases.
c) Slapp-Back: Last Amendment to ward off meritless Anti-Slapp Motions; basically suit for missuse of
ANTI-SLAPP motion. §425.18
i) Allows a P who wins an ANTI-SLAPP by D to file a new suit – slapp back.
ii) Ex: P, small P brings an action. D, big co, files anti-slapp motion. If the D loses, the P can sue under
a SLAPP-back suit. Now there is more of an incentive for D NOT to use this unless they have a
valid case.
d) Federal issues w/ Anti-Slapp?
i) Fed ct has applied anti-SLAPP language governing the availability of the special motion and the
award of attorney’s fees, but has rejected the statute’s “discovery- limiting aspects . Metabolife
International, Inc. v. Wornick

G. Joinder:
Permissive Joinder (§ 378 / 379)
- Any person may join action as π / ∆ if:
o Claim arose from same transaction or occurrence;
 Transaction: Causal chain; same facts; same time
o Claim involves common question law or fact

Compulsory Joinder (§ 389)

- 3 steps inquiry:
o (1) Necessary: Person ought to be joined
 Factors –
 Complete relief not possible in absence of party
 Interest in subject of action such that in absence of joinder:
o Interest will be impaired/impeded; or
o Existing parties subject to multiple liability
 Simply b/c multiple ∆’s may be joint and severally liable does not make them
automatically necessary parties
 o (2) Possible: Joinder possible based on personal jx. and SMJ
 Subject to service of process
 Joinder w/i SMJ
o (3) Indispensible: If joinder is not possible (e.g., no personal jx. or SMJ), then is party is
indispensible to the action?
 Factors—
 Prejudice to present and absent parties
 Can prejudice be avoided w/ protective provisions?
 Adequacy of judgment / remedy if dismissed
 Court’s options: Depending on weighing of factors, may (1) proceed with parties before
it; or (2) dismiss w/o prejudice, the absent person being thus regarded as
indispensible
- Common Joinders:
o Claimants to common fraud
o Conflicting claims to ownership or possession of property
o Co-obligees w/ jointly-held rights
o Suits involving trusts
o Rescission of contracts

Intervention (CCP § 387)

- In General:
o Applicable party: Any person w/ an interest in (1) matter of litigation; (2) success of either
party; or (3) against both parties, may intervene
 (1) Proper procedures must be followed
 (2) Nonparty has a direct and immediate interest in action
 Political involvement / General interest (State Fund): Active political
involvement or general interest in litigation will not support intervention
 (3) Intervention will not enlarge issues in litigation
 (4) Reasons for intervention outweigh any opposition by parties presently in action
- Other Parties:
o Unconditional right: If provision of law grants party unconditional right to intervene
o Interest in property / transaction: Party claiming intervention has interest relating to property
or transaction subject to action
o Conditions: May intervene if –
 (1) Impair / impede / inadequate representation: Disposition of action may
impair/impede person’s ability to protect that interest, unless interest is adequately
represented by party in action
- 14th Amend. claims (CCP § 52): AG/DA/City Attny. Allowed to intervene in actions seeking relief from
denial of equal protection under 14th Amend.
 - Environmental actions: AG may intervene in environmental actions
- Property: Anyone claiming legal/equitable interest in property subject of an eminent domain may
intervene in action

Interpleader (CCP § 386): I got no DOG in this fight – I hold $ but you two fight it out
- Parties:
o Interpleader: Plaintiff; owner/stakeholder of the res
 Res: Common property / fund in dispute
o Claimants: Defendants; all persons having possible interest in res
- When to file:
o When stakeholder does not know to whom to apportion the res, stakeholder files an
interpleader and forces claimants to litigate the dispute and resolve issue

Class Actions (CCP § 382)

- Purpose: Permit persons to sue / to be sued on behalf of others when there’s a common question of
interest to many persons or parties are numerous, and it is impracticable to bring parties to court in
one action
- Elements:
o Ascertainable class: Categorical description of class members
o Joinder impracticable: Class too numerous for joinder
o Community interest: Predominant common questions
 Typical claim/defense: If claims have separate causations, then not typical
 Adequate representation
 Manageable
 Superior method: Would class action be superior to individual claims?
- Different damages: Just because parties have different damages, does not mean it can’t be a class
action for a particular issue common to members
- Employment discrimination cases: Hard to be class action b/c different managers and different
locations = different causation

Representative suits (CCP § 382)

- Person/entity permitted to sue pursuant to statute or case law on behalf of real parties in interest
- Procedural requirements for statutory representative suits: Not subject to detailed procedural reqs.
as class actions
- Certification: Representative suits brought by private individuals/entities must be certified as class
actions
 Chapter 4. Discovery
A. Discovery Philosophy

1) Purpose
a) Allow parties to better ascertain truth & prevent perjury
b) To allow effective means of detecting false, fraudulent claims or defenses.
c) To allow less expense in fact discovery
d) To show parties real value of claims & defenses - Promote settlement
e) Expedite lit & prevent delay
f) Safeguard against surprise - Narrow down issues
g) Better trial results
2) Professor NOTES:
a) What are the main concepts of discovery:
i) Discovery needs to be self executed.
ii) Discovery broad scope or broad discovery.
iii) The motions that judges to hear, more than any other, are ones for DISCOVERY disputes.
iv) This is b/c judges have to read every Q & answer to what you are fighting over and all the
arguments on both sides and usually the discovery requests have HUNDREDS of things on them.
And they have to rule on each of these. They dont have time and these require MUCH time for all
the specific rulings. Also judges see these as something the attys should resolve. Also because
they have to rule ON SO MANY specific issues, it opens these judges up to be over-ruled or at least
reviewed on one of the issues they ruled on.
v) Result: whenever these issues come before a judge, ONE PARTY will pay (be sanctions or
allocation of fees changed) just because the judges are pissed and this is one of the main tools
they have to deter ppl from doing these things.
b)

3) Timing:
a) Hold: π’s discovery must be put on hold at the outset of lawsuit
i) 20 days: π must wait 20 days before serving notice of deposition
b) Anti-SLAPP hold:
i) Anti-SLAPP motion stays discovery until the resolution of motion
c) Sequence & Timing: § 2019.020
i) Methods of discovery can be used in ANY sequence
ii) No party’s discovery method should delay any other party’s discovery
iii) Court order for parties’ convenience: Court may establish sequence and timing of discovery for
convenience of parties and witnesses and in interests of justice

4) Federal vs State discovery: CA purposely made to be LESS restrictive than FED discovery.
a) Initial disclosures: NONE in CA

5) Signature rule:
 a) Discovery responses, MUST be signed by CLIENTS.
b) Attys do NOT sign discovery requests or responses UNLESS there is an objection
c)

B. Scope of Discovery

1) Informal Discovery
i) Pullin v. Superior Court: P asked to conduct tests on the D vons’ floor. They said request was not
timely. Investgator walked in, quick test, bought something & walked out. Never asked to leave &
never trespasser.
ii) Ct: Nothing in DISCOVERY ACT prevents a party from conduct a UNILATERAL (informal)
investigation w/o resorting to statutory discovery decide, as long as the investigation is lawful.

2) Relevance and Admissibility

a) Discoverable Persons & Matters (§ 2017.010): General rules
i) Any party can discover any non-privileged matter
ii) Matter must be (1) itself admissible in evidence or (2) appears reasonably calculated to lead
to discovery of admissible evidence
(1) Relevance is NOT the test..… allow discovery if it might reasonably assist a party in
EVALUATING the case, PREPARING for trial, or FACILITATING SETTLEMENT.. ie reasonably
lead to admissible evidence… fishing expeditions ate permissible.
iii) Relevant to . . .
(1) Subject matter involved in pending action; or
(i) Notice FED only allows relevant to claim or defenses – this is broader b/c allows for
discovery ALTERNATE claims or defenses beyond express terms of pleading.
(2) Determination of any motion made in that action
b) 2017.020: Limits on discovery scope – burden expense, intrusion - & sanctions.
c) 2017.210: Discovery allowed for insurance carriers who may pay. 2017.220: sexual harassment,
assault & battery suits
i)
3) Protection From Discovery
a) Relevance: ONLY for DEPOS? I think?
i) Stewart v. Colonial Western Agency, Inc.
(1) Irrelevance (Stewart): Irrelevance alone is insufficient ground to justify preventing a witness
from answering a question posed @ deposition.. RELEVANCE is for JUDGE to decide.
(a) R: Do not object & instruct not to answer to relevance, competency b/c that is up to judge
and is NOT waived by failure to object. HOWEVER, object & instruct not to answer to
PRIVILEGE & WORK PRODUCT b/c if you don’t, you waive 2025.460 – when to object.
(2) “Character” Q regarding employer being sued for wrongful termination were relevant in that
they sought to assess employers treatment of subordinate employees.
b) Privacy: CA, unlke fed, has EXPRESS right to privacy
i) Pioneer Electronics (USA), Inc. v. Superior Court: Consumer class action, P wanting to learn
from D which OTHER consumers have complained.
 (1) TC: said they have to opt IN… SC said no, they only have to OPT out. Active vs Passive
(2) SC: In class action litigation: the names and phone numbers of complaining customers can
be disclosed to the plaintiffs — so long as the complaining customers are given reasonable
notice and an opportunity to object and opt out of the disclosure
(a) Balance Test: If there is a LEGALLY PROTECTED privacy interest (Could embarrassment
or indignity result? Do social norms protect invasion)… Next ask if REP exists…. Then is
invasion of a SERIOUS NATURE?.. now balance that against COMPETING INTEREST.. if
competing reason legit, usually allow unless SUPER intrusive.
(b) Basically: That test balances the nature of the privacy interest, the holder’s reasonable
expectation of privacy under the particular circumstances, the seriousness of the subject
breach, the countervailing interests in disclosure, and safeguards and other alternatives
that may minimize the invasion.
c) Privilege: Generally if there is a privilege, disclosure PROHIBITED.
i) General Process:
(1) Object – notify of privilege; if contested:
(2) Party claiming privilege has INITIAL BURDEN of proving existence of privilege.
(3) Usually, after 2, absolute bar. But sometimes like in trade secret, ct allows another step: Then
Party seeking discovery must make prima facie PARTICULARIZED showing that info sought it
RELEVANT & NECESSARY to the proof or defense of MATERIAL ELEMENT.
ii) 2019.210: Privilege of trade secrets
(1) Particularity requirement: Party alleging misappropriation shall ID trade secret w/
reasonable particularity subject to any orders that may be appropriate.
iii) Attorney-client privilege: prohibits discovery by adversary of confidential info exchanged b/w
atty and client.
iv) 2031.230 & 2031.240(b): Inability to comply w/ interrogs & doc requests– privilege log

d) Work Product Protection: 2018.030

i) Privilege vs Protection: absolute bar on privilege but protected can be discoverable in extreme
circumstances.
ii) General rules:
(1) Rationale (§ 2018.020): Preserve attorneys’ right to prepare cases for trial w/ privacy
necessary to encourage them to prepare their cases thoroughly

(2) Defined (§ 2018.030):

(a) Absolute (NOT DISCOVERABLE UNDER ANY CIRCUMSTANCES):
(i) Writing that reflects attorney’s impressions, conclusions, opinions or legal research;
Attorney’s thoughts
(b) Qualified (DISCOVERABLE IF SHOW PREJUDICE/INJUSTICE): Attorney’s work product
other than the absolute products, e.g., witness statements; crime scene pics.
(c) Other examples: Tests from experts; memoranda
 (3) Attorney’s agents: WPD applies to work products derived from attorney AND attorney’s
agents!

(4) Exceptions to WPD

(a) Breach of duty (§ 2018.080): Action between attorney and client/former client of
attorney
(b) Disciplinary proceedings (§ 2018.070): State Bar may discovery WPD against attorneys
w/ pending disciplinary charges
(c) Crime fraud (§ 2018.050): Official investigation against attorney for crime fraud
(d) Waiver: If attorney voluntarily discloses information

iii) Derivatives vs. Non-derivatives??? Should I include this?

(1) Derivatives: Things derived from attorney’s actions or efforts – subject to WPD
(2) Non-derivatives: Things not derived from attorney’s actions or efforts, e.g., facts of a case –
may be discoverable and not subject to WPD
iv) General Process:
(1) Objections & notify other side (§ 2030.240 - Interrogatories; Hernandez)
(a) Partial objection: If part of interrogatory objectionable, then must still answer rest of
interrogatory
(b) Specify ground: Must specify objection ground clearly in response
(c) Claim of privilege: If objection based on privilege, then particular privilege must be
clearly invoked
(d) Work product protection: Must be EXPRESSLY asserted

Privilege / Work Product Doctrine

Privileges
Types Ways to Waive
Attorney-client o Disclose significant parts – showing
anyone even JUDGE
Work Product
o Failure to object
Spousal communications o Failure to Respond (stadish)
Self-incrimination o Put @ issue – mainly for privacy but
can apply to most if not all.
Privacy &/or tax returns o Crime fraud (§ 2018.050): If privilege
Trade secrets is used for crime-fraud, then
privilege is gone.
Notification: Must notify opposing party about privilege claim ie OBJECT
Privilege log: Must provide specific factual description of documents in aid of substantiating claim of
privilege in connection w/ request of document production; permit judicial evaluation of privilege claim.
ONLY info that identifies the doc that is being described.. just brief recipient of doc like date &
recipients/sender, etc.. NO CONTENT INFO... enough info to give other party a shot at going before ct and
requesting it. If you give CONTENT info.. even to JUDGE.. you MIGHT waive PRIVILEGE.
  Preferred method (Hernandez): Failure to provide a privilege log does not lead to waiver of
privilege, (but still must notify/object PRIVILEGE)… HOWEVER, there is NO RIGHT TO refuse to
GIVE info regarding related document… ct can ORDER more SPECIFIC answers.
 Existence of privileged docs: party may object to interrogatory seeking privileged information,
but the existence of docs containing privileged info is NOT itself privileged
CLAW BACK RULE: Inadvertently provided clearly privileged information (Rico): When a lawyer
who receives materials that obviously appear to be subject to attorney-client privilege or otherwise
clearly appear to be confidential and privileged and where it is reasonably apparent that the materials
were provided or made available through inadvertence, lawyer receiving such materials should refrain
from examining materials any more than is essential to ascertain if materials are privileged, and
shall immediately notify sender that they possess material that appears to be privileged
 Sequester: Party receiving such information shall immediately sequester information and either
return or present information to court
 Notice: Rico used CL for this rule.
 CCP 2031.285 has rule but CCP only uses rule for ELECTRONIC DISCOVERY. Go CL if no e-issues.

Objections ALLOWED:
i) Three general ways of objections:
(1) Privilege / WPD
(2) Error & irregularities
(a) Unclear
(b) Error in oath or affirmation
(3) harassment, embarrassment, etc.
(a) Overbroad, burdensome
ii) Timely objections OR WAIVE
(1) All 3 waive privilege & workd product is not TIMELY  Depos waive more
iii) failure to answer / produce  Motion to compel VALID & GRANTED
(1) Deposing party may . . . (§ 2025.460/480)
(a) Adjourn deposition OR complete examination;
(b) Move for motion to compel answer/production of doc. 60 days after completion of depo.
Record
(2) Interrogs: motion to compel & sanctions 2030.290 & .300
(3) Inspection/ production request: motion to compel & sanctions 2031.300 & .310
iv) Objections to Interrogs: 2030.240, 290, 300  2030.290 untimely waiver
v) Objection to requests inspections of doc & things: 2031.230, 240  2031.300 untimly Waiver
vi) Objection to Depos: 2025.240 waiver 2025.460
(a) Privileged info / WPD: Must be timely made @ depo., or waive
(b) Errors & irregularities: Must be timely made @ depo., or waive
(i) Examples: Manner of taking depo.; oath/affirmation; conduct of
party/attorney/deponent/officer; form of any question or answer
 (c) See unnecessary objections above – do not need to object based on relevance
b) Suspension of deposition for P.O. (§ 2025.470): May suspend deposition to enable party or
deponent to move for P.O. on the ground that depo. is conducted in . . .
i) Bad faith; or manner that unreasonably annoys, embarrasses, or oppresses deponent or party
c) Possible Effects of P.O.’s see (§ 2025.420):

4) Electronic Discovery
a) 2016.020: electronic means relating to technology having electrical, digital, magnetic, wireless,
optical.. or similar capabilities
b) 2017.730: Can use tech in discovery when BOTH SIDES or CT orders stipulate that procedure meets
following criteria:
i) They promote cost-effective and efficient discovery or motions relating thereto.
ii) They do not impose or require an undue expenditure of time or money.
iii) They do not create an undue economic burden or hardship on any person.
iv) They promote open competition among vendors and providers of services in order to facilitate
the highest quality service at the lowest reasonable cost to the litigants.
v) They do not require the parties or counsel to purchase exceptional or unnecessary services,
hardware, or software
c) Claw Back Rule: if you get eletroniclly stored info subject to privilege or work product -
d) Electronically-stored Information (ESI): NOT reasonably accessible
i) Demand: if demand does not specify FORM of production, responding to produce in form that
they normally keep or form that is reasonably usable – don’t have 2 produce again in diff form.
ii) Not readily accessible: If party objects to ESI discovery b/c not reasonably accessible due to
undue burden/expense, then must ID types/categories of ESI that’s not reasonably accessible.
2031.280. Preserves objection
iii) Good cause shown for production: If court finds good cause for production despite not readily
accessible, then may still order protection but limit frequency/extend discovery
iv) No sanctions for good faith operation (§ 2031.060(i)): No sanctions on party for failure to
provide ESI that’s lost/damaged/altered/overwritten as a result of good faith operation of ESI
except under exceptional circumstances, e.g., when info is VERY relevant to case
v) Examples: E-mail; attachments; spreadsheets; texts; instant messages; voicemail; electronic
calendars; animations; powerpoints; metadata; source codes; browsing applications; operation
logs; document properties; history; tracked changes
vi)
e) Translating to a usable form & cost shifting:
i) Toshiba America Electronic Components, Inc. v. Superior Court
(1) General rule: cost of discovery born by RESPONDING PARTY
(2) Exceptions:
(3) 2034.430(b): costs shifted to deposing party when deposing other party’s expert.
(4) 2025.510(b): Party deposing pays cost of TRANSCRIBING
(5) 2031.280 (e) places the burden on the demanding party where it is necessary to translate
any data compilations into a useable form. This places the burden on the responding party to
 seek a protective order per 2031.060 so that cost to TRANSLATE can be assigned to
DEMANDING party.

C. Discovery Devices

2) Discovery Methods: CA recognizes the following discovery methods/devices: §2019.010

i) Interrogatories to a party: Written questions that must be answered within time limit
ii) Oral & written depositions
iii) Physical & mental examinations
iv) Inspections of documents, things and places: Doc requests from PARTIES
(1) Non-parties? SUBPOENA documents
v) Requests for admissions:
(1) Parties: Request for admissions must be between parties
(2) Purpose: Admit genuineness of documents; facts; legal contentions
(3) Limit: No set limit for requests in CA (Cf. FRCP: There’s limit!)
vi) Simultaneous Exchanges of expert trial witness information

b) Limited civil cases & Discovery:

i) CCP §94 for limited CIVIL cases (-25K) has different rules. A party is limited to a TOTAL # of 35
interrogatories , demands to inspect docs/things, & requests for admission. One depo is allowed
for both sides BUT depo for ONE organization is considered ONLY 1 even if more than 1
employee deposed.
ii) CCP §95 allows the court to order additional discovery beyond the 35 max only if moving can
show they are unable to prosecute/defend w/o it & also allows the parties to STIPULATE to
additional discovery.

c) Motions allowed for ALL discovery: Only 3 allow JUDGE review

i) Protective order: eg 2019.030 & 2030.090: a responding party may move for a protective
order to challenge a discovery demand.
ii) Motions to compel response or further response: eg 2030.300 & 2030.290: see both under
INTERROGS

3) Interrogatories: §2030.010
a) General rules:
i) Number allowed:
(1) §2030.030 allows UNLIMITED # of form interrogatories.
(2) §2030.030 ALSO allows for total of 35 relevant specially prepared (meaning your own Q)
INCLUDING subparts.
(3) 2030.040-.050 allows for MORE than 35 to be answered if some conditions (case complexity,
financial or expedience issue) are met & a declaration is attached. NO NEED TO GET LEAVE OF
CT – just ATTACH dec and assert case complex or EXPENSE

b) Timing: §2030.020
 i) Plaintiff: Must wait 10 days after service of summons
ii) Defendant: May submit interrogatories to party w/o leave of court at ANY TIME
iii) Modification: May change time w/ motion w/ good cause OR stipulation

c) Scope: (§ 2017.010; 2030.010):

i) Contentional Interrogs: Certain contentions; or to facts, witness, and writings on which
contention is based; questions about insurance policy (carrier, limit of policy)
(1) Basically asking: Do you contend that X is true. If so, on what factual basis? Can basically ask
what are your defenses & what facts are they based on.
(2) NOT OBJECTIONABLE: Originally objectionableE but now due to LIMIT on # of interogs, both
FED & CA rules say that they are NOT OBJECTIONABLE. Just because an answer involves
opinion/contention that relates to fact or application of law to fact; or based on legal theories
developed in anticipation of litigation or in preparation of trial.. doesn’t make it objectionable

ii) Broad Questions: objectionable

(1) A TC does NOT have to compel answer to interrogatory if the questions are very broad.
(2) Ex of broad: ALL the facts D intended to produce for its defense
(3) NARROWLY TAILORED ALLOWED: “facts now known by the D that form the basis its
affirmative defense”

d) Form Interrogs: 2030.060:

i) Numbering: Must number each set of interrogatories consecutively
ii) Definition: May define terms
iii) Complete in and of itself: Each interrogatory must be complete in and of itself
(1) No preface; no instruction included separately w/ each set of interrogatories; no subparts;
can’t be made a continuing one so that opposing party has duty to complete w/ later acquired
info
(2) Professor: they can NOT be modified. If you SEE that they are modified, even if ONE TINY
word is scratched out or added to a Q’s that is checked (meaning that they want you to answer
it) the WHOLE thing becomes a special.

e) Service of documents (§ 2030.080):

i) Party propounding interrogatories must serve copy on opposing party
ii) Propounding party must serve copy on all other parties in the action unless court directs
otherwise
f) Response requirements:
i) Time to respond:
(1) 30 days: Responding party must respond within 30 days after service of interrogatories
(2) Original response to propounding party: Serve original response to propounding party; do
not file interrogatory/written discovery with court!
(3) WAIVER if late response: If responding party responds after 30 days, then waive ALL
objections including privileges
ii) Mode of response; required content (§ 2030.210):
(1) Writing; under oath; separately to each interrogatory
 (a) Answer containing information sought to be discovered;
(b) Exercise of party’s option to produce writings;
(c) Objection to particular interrogatory (see above)
iii) Answers in response; contents and form; obligations of responding party (§ 2030.220):
(1) Complete and straightforward; answer to extent possible
(2) No personal knowledge: Party must state he has no personal knowledge, but also make
reasonable and good faith effort to obtain info.
iv) Answers supplemented by attached documents; specificity of references to attachments;
examination and inspection by responding party (§ 2030.230):
(1) Compilations: If answer requires preparation/making of compilation of documents, and if
cost would be the same for both parties, then responding party can just specify writings
where the answer can be derived
v) Signature (§ 2030.250)
(1) Must sign under oath unless response contains only objections
(2) Public or private corporation: Officer/agent must sign response under oath on behalf of
entity
g) Motions available:
i) 2030.290: If a party FAILS to respond timely, the propounding party may make a motion to
compel response.
(1) Party who fails to respond timely waives ANY objection to the interrog; TC can relieve that
waiver ONLY if: party has responded in compliance & the failure to respond was due to
mistake, inadvertence, or excusable negligence.
(2) If party unsuccessfully opposes or makes motion, sanctions can be asserted against them. If
order is granted & a party FAILS to obey the order can issue more sanctions. SEE RULE.
ii) 2030.300: A propounding party that is NOT satisfied w/ response may move for a motion to
compel FURTHER response. Propounding has 45 days & must have good faith meet & confer first.
(1) Basically they have responded but there responses are deficient in some way. SEE RULE
(2) MEET & CONFER FIRST & DEC REQUIREMENT

h) Untimely Responses:
i) Sinaiko Healthcare v. Pacific Healthcare: Responses not given timely BUT given BEFORE
motion to compel.
(1) R: As soon as a party has failed to serve timely interrogatory response, the trial court has the
authority to hear a propounding party's motion to compel responses, regardless of whether a
party serves an untimely response.
(2) R: Also, as soon as a party fails to serve a timely response to interrogatories, all objections that
it could assert to those interrogatories are waived.

4) Depositions
a) Purpose: used to find out facts, investigate, can be offered as evidence in pretrial proceedings and in
some circumstances during trial when deponent is unavailable.
b) General Rules:
i) Timing: § 2025.210
 (1) Plaintiff: May serve depo. notice 20 days! after service of summons
(2) Defendant: May serve depo. notice any time after ∆ appeared in action

ii) Parties vs Non-party Service:

(1) Parties: Must service notice of deposition
(2) Non-parties: Must service notice of deposition AND subpoena
(a) For records only: Then only need to serve subpoena
iii) Supervision: A deposition must be conducted under the supervision of a deposition officer who
is authorized to administer an oath. §2025.320.

iv) Recording: The deposition testimony must be recorded stenographically, unless the parties
agree or the court orders otherwise. §2025.330. If the testimony is recorded stenographically, it
must be recorded by a certified shorthand reporter. Id.

v) Transcription: §2025.510: The recorded testimony at a deposition must be transcribed, unless

the parties agree otherwise; the party noticing the deposition shall bear the cost of that
transcription, unless the court, on motion and for good cause shown, orders cost be borne or
shared by another party. (notice one of the few fee-shifting)
(1) Depo reporter MUST notify all parties attending the depo & the deponent when the ORIGINAL
transcripts of each session of depo is available for reading, correcting and signing UNLESS the
parties agree that the reading, correcting & signing will be waived or will take place at another
time. Any party may order copy.
(2) Correction of Transcript (§ 2025.520): Deponent may change form/substance of answer to
question for 30 days following officer’s notice
vi) Contention Questions: Unlike Interrogs, can NOT be asked.
vii) Lying: If party believes that deponent is lying, they can NOT threaten prosecution for perjury or
any other law. They instead can report belief to appropriate judicial office or authority.
(1) Signature: required and this is used for perjury purposes later.

viii) Retaking another deposition of same individual: Both FED & CA prohibit taking of depo of the
same individual twice. CCP §2025.610
(1) Exception: §2025.610 for good cause eg: for fraud, new parties or other reasons the ct finds.

ix) Limiations: CA UNlimited civil (25k+) ONLY 1 for ANY PERSON for 7 hours on ONE DAY by ALL
parties (other than the witness’s counsel of record) . There can be HUNDREDS for other ppl BUT
you only get 1 day, 7 hours…. If you need more than 1 day or 7 hours.. must get leave of ct.
(1) Exceptions allowed: by ct if needed to fairly examine the deponent;
(2) Specific Exceptions: If parties stipulate, expert witnesses, complex cases, corp parties.

x) Cost of Depos: Person taking them pays for them! Fee shifting

xi) Location of Deposition: §2025.250 - 260:

(1) Natural person may be deposed - party or not - either w/i 75 mi of res or w.i 150 miles of her
res w/i county where action pending UNLESS they are a non-party, then only w/i 75 mi of
principal res.
(2) Deposition of entity: Within 75 miles of organization’s principal executive/business office in
CA OR within county where action is pending + 150 miles of that office
(3) Outside of limits allowed by ct see rule 2025.260 considerations.
 xii) Corporate depositions: A notice of DEPO for an ENTITY does NOT name a person; the entity is
RESPONSIBLE for designating the appropriate person to appear & speak on its behalf. §2025.230

xiii) Content of depo notice (§2025.220)

(1) When and where: Address & date of deposition;
(2) Known deponent: Name of each deponent; address & telephone # of deponent not a party to
action
(3) Unknown deponent: Must provide general description sufficient to ID person or particular
class to which person belongs
(4) Materials: Specification w/ reasonable particularity of any materials to be produced by
deponent

xiv) Defective Notices (§ 2025.410)

(1) Notify deposing party: Deponent must notify deposing party w/ written objection on any
defect/irregularity in notice at least 3 calendar days before deposition date
(2) Failure to notify  waiver: Failure to notify deposing party w/i time period will WAIVE any
error/irregularity

c) Motion to compel further answers or APPEARANCE: 2025.450 & 480.

i) MEET & CONFER FIRST & DEC REQUIREMENT

d) Allowed objections:
i) Three general ways of objections:
(1) Privilege / WPD
(2) Error & irregularities
(a) Unclear
(b) Error in oath or affirmation
(3) Suspend depos. b/c of harassment, embarrassment, etc.
(a) Overbroad, burdensome
ii) Timely objections OR WAIVE (§ 2025.460) & 2025.240
(1) Privileged info / WPD: Must be timely made @ depo., or waive
(2) Errors & irregularities: Must be timely made @ depo., or waive
(a) Examples: Manner of taking depo.; oath/affirmation; conduct of
party/attorney/deponent/officer; form of any question or answer
(3) See UNNECESSARY OBJECTIONS ABOVE
iii) Suspension of deposition for P.O. (§ 2025.470): May suspend deposition to enable party or
deponent to move for P.O. on the ground that depo. is conducted in . . .
(1) Bad faith; or manner that unreasonably annoys, embarrasses, or oppresses deponent or
party
(2) Possible Effects of P.O.’s see (§ 2025.420):
iv) Deponent’s failure to answer / produce  Motion to compel (§ 2025.460/480)
(1) Deposing party may . . .
(a) Adjourn deposition OR complete examination;
(b) Move for motion to compel answer/production of doc. 60 days after completion of
depo. Record
v) Objections to Interrogs: 2030.240, 290, 300  2030.290 untimely waiver
vi) Objection to requests inspections of doc & things: 2031.230, 240  2031.300 untimly Waiver
vii) Objection to Depos: 2025.240 waiver 2025.460

e) Maldonado v. Superior Court

 i) Person Most Knowledgeable rule:
(1) Person Most Knowledgeable (PMK) / Deponent not a natural person ie corp (§
2025.230;)
(a) Not a natural person: Must designate and produce person most knowledgeable to testify
on its behalf . . . to the extent of any info known or reasonably available to the deponent..
must bring docs requested & should EDUCATE themselves on docs.
(b) Person no longer @ entity: Then must find person to educate herself about the issue.

5) Physical and Mental Examinations

a) Physical Exams: § 2032.220
i) Physical exams for personal injuries of P: D may demand w/o leave of court ONE physical
exam of personal injury P.
ii) Physical exams for D & non-personal injury P & NON-PARTY: D or other P’s or even NON-
parties can be subject to exam if court order requested exam, NOT A RIGHT – granted if their
injury placed in CONTROVERSY & good cause. §2032.310-20
iii) Restrictions: can NOT be painful, protracted, or intrusive, & not more than 75 mi from residence.

b) Mental Examinations: §2032.310- 20

i) Same idea – BUT ALWAYS requires leave of ct is MENTAL state being placed in CONTROVERSY?
Ie emotional distress – notice MENTAL exams are considered bigger PRIVACY invasion than
physical exams & are thus more hesitant to allow these types.
ii) Professor: If you are making a claim of some kind of emotional distress and that person is
SEEING a therapist, it is likely that the other side will GET access to the info from your doctor.

iii) Vinson v. Superior Court : P alleges employer sexual harassment. D order mental & physical.
(1) Sexual harassment suits (§ 2036.1): Party seeking discovery must show good cause for
discovery into opponent’s sexual past; inquiry must be relevant to subject matter and
reasonable belief that discovery would lead to admissible evidence – Extraordinary
circumstances required
(2) Steps for granting ct order:
(a) Is physical/mental state in controversy:
(i) Did P claim physical or emotional injury in pleading? For a D – defenses? If has NOT
asserted, not in CONTROVERSY. If asserted – generally controversy.
(b) If in controversy, is request being made in GOOD CAUSE?
(i) Requires specific facts to JUSTIFY.. inquiry to be RELEVANT to subject matter.
(ii) Basically, even if in good cause, if not likely to discover anything, wont grant ct order.
(iii) Here: P claims CONTINUES to suffer reduced self esteem, sleeplessness, fear, anxiety,
mental anquish. B/c TRUTH is relevant, good cause established.
(3) If granted: ct to specify the conditions, scope, nature and manner:
(a) Sexual history & practices are NOT relevant.. Scope justified by relevance: also balance
relevance & privacy interest.
 (b) R: NO absolute right to have ATTY presence & verbatim transcripts.. ONLY allowed when
circumstances require more protection.. NOT NEEDED here – examiners notes & cross
exams serve to ALLOW proper protection
(i) Notice 2032.530 & 510 which authorized recording & atty presence of mental exam do
NOT alter this holding… b/c both rules require ct order. & ct only grants under

6) Inspection of Documents and Things

a) Professor: General idea: Asking about KEY aspects of the case and asking other side to admit or
deny certain things. If you admit then its done. If they DENY, you get to ask about specific reasons
why they deny & docs, witnesses and other materials that aid the denial. If you fail to respond to
RFA, it is DIFFERENT then failing to respond to the above b/c court allows this to mean ADMISSION..

b) General Rules
i) Persons & things subject to demand (§ 2031.010)
(1) Any party may demand any other party produce/permit party make demand to inspect and
copy a document, photograph, test, or sample of any tangible things that’s in possession,
custody or control of party whom demand is being made
ii) Time (§ 2031.020)
(1) Plaintiff: Must wait 10 days after service of summons to make demand for
inspection/copying/testing/sampling w/o leave of court
(2) Defendant: May make demand at any time w/o leave of court
iii) Form of demand; Manner of production (§ 2031.030)
(1) Numbering: Shall number each of demands consecutively
(2) Sampling: May request a range of docs. e.g., word searches, date ranges
(3) Electronically stored info: May specify form/forms in which each type of e-stored
information is to be produced, e.g., .doc, .pdf, etc
iv) Privilege (§ 20312.230(b)(2)): If objection to demand for production of docs. is based on claim
of privilege, the particular privilege invoked shall be stated!
v) Stadish v. Superior Court : included several privileged/objections BUT missed one.

(1) Waiver (§ 2031.300; ): Failure to respond to demand for production of docs. w/i time
permitted waives all objections to demand.
(a) Failure to SPECIFY specific ground also WAIVES..
vi) Failure to respond PROPERLY: Motion to compel FURTHER:
(1) 2031.310 MEET & CONFER FIRST & DEC REQUIREMENT

c) Responses to Inspection:
i) Time to respond: 30 days
ii) Electronically-stored Information (ESI) see above

7) Requests for Admission :

a) Difference w/ other discovery devices:
i) Above devices are about GATHERING INFO – RFA take DEBATABLE MATTERS OUT
ii) Cost & Fee-shifting feature
(1) Failure to admit, w/o substantial justification may result in fee shifting of atty costs & costs to
prove to party who SHOULD have admitted prior to trial. 2033.420(a)
iii) HUGE Difference:
(1) Failing to answer interrog or other discovery– usually results in phone call or judge ordering
you to answer.
(2) FAILURE to TIMELY RESPOND TO FRA = ADMISSION!!!!!!
(3)
b) Failure to TIMELY RESPOND: 2033.280
i) All objections are waived (ct exception), Deemed admitted (ct exception), SANCTIONS (no
exception)
ii) Issuing party makes a motion to have UNANSWERED RFA deemed ADMITTED.. ct to grant but
there is exception.
c) General rules
i) Persons (§ 2033.010): Any party may obtain RFA
ii) Time (§ 2033.020)
(1) Plaintiff: May make RFA 10 days after service of summons w/o leave of court
(2) Defendant: May make RFA any time w/o leave of court
iii) Numeric Limitation (§ 2033.030)
(1) 35: No party shall request other party to request more than 35 matters that do not relate to
genuineness of documents
(2) Genuineness of documents: No limit for these RFAs
iv) Form (§ 2033.060)
(1) Numbering: Must number each set of requests consecutively
v) Service (§ 2033.070)
(1) Requesting party shall serve copy on responding party and all other parties in action
d) Responses for Admission
i) Form (§ 2033.210): Respond in writing under oath separately
ii) Time (§ 2033.250): Must respond within 30 days after service of RFAs
iii) Verification (§ 2033.240): Must sign under oath unless response contains only objections
iv) Motion for Protective Order (§ 2033.080):
(1) Protect party from unwarranted annoyance, embarrassment, oppression, or undue burden
and expense
(2) Monetary sanction: May impose sanction for party who unsuccessfully moved for P.O.
v) Consequences of Admission
(1) Conclusiveness (§ 2033.410): Admission conclusively establishes against party making
admission in the pending action unless court permits withdrawal/amendment
 (a) Binding to present action ONLY: Not an admission for any other purpose or in any other
proceeding
vi) Consequences of Failing to Admit
(1) Waiver (§ 2033.280): Waiver of any objection to RFAs, including those based on privilege or
work product protection
(2) Motion to Deem Admitted (§ 2033.280(b)): May move for an order to deem admitted truth
of any matters specified in RFAs and the genuineness of any docs.
(3) Cost-and-fee shifting (§ 2033.420; FRCP 35(a)): If party fails to admit genuineness of any
doc. and requesting party proves genuineness/truth of matter, then may move court for an
order requiring party to pay reasonable expenses, including attorney’s fees!
vii) Withdrawing/Amendment of Admissions
(1) Leave of court + notice to parties required (§ 2033.300): May withdraw or amend
admission on leave of court after notice to parties
(2) Court’s discretion: May allow withdrawal/amendment ONLY if MOVING PARTY SHOWS…
(a) Mistake; inadvertence; excusable neglect & other side not substantially prejudiced
(b) New Albertsons, Inc. v. Superior Court: cts favor deciding on MERITS, doubts resolved in
FAVOR of party seeking relief..
(i) Excusable neglect: anything other than CLEAR INEXCUSABLE NEGLECT. Could
anyone reasonably make the mistake?
8) Continuing Discovery 389
a) Biles v. Exxon Mobil Corp: new witness discovered but didn’t tell other side about it.
i) A responding party to an interrogatory has no duty to supplement its responses if new
information comes into that party's possession. It can use that INFO too, it will ONLY be
precluded if providing party gave willful false answers.

D. Experts

9) Experts – Simultaneous exchange

a) Three types of experts:

i) Retained, testifying expert – can discover info about them and their trial testimony
ii) Retained, consulting expert – non-testifying; can’t do discovery on them
iii) Non-retained, testifying expert

b) Written demand (§ 2034.210-230) One of the parties must make demand to exchange
i) Time: Exchange must occur 70 days before trial date OR no later than 10th day after initial trial
date has been set, whichever closest to trial.
ii) Purpose: Any party may demand mutual/simultaneous exchange of expert witness info.
iii) Response: 20 days after service of demand OR 50 days before initial trial date
 iv) Contents of demand: Date for exchange of lists of expert trial witnesses; expert witness
declarations; and any demanded production of writings
c) Specified date (§2034.230): May specify date for list of exchange
d) Content of exchanges (§2034.260):
i) Witness declaration signed by attorney must contain:
(1) Names & address of testifying and retained experts PLANNING to use INFO @ trial
(2) Brief summary of expert’s qualifications
(3) General substance of anticipated testimony
(4) Representation that expert has agreed to testify & will be able to give depo concerning
specifics
(5) Fees to be described that are paid for testimony & consultation
e) Failure to identify in exchange:2034.300 judge will NOT permit testimony
i) Exception: 2034.310: Impeachment: Expert’s testimony of UNIDENTIFIED can be used ONLY to
IMPEACH previously identified expert.
(1) True impeachment: Expert’s testimony used to impeach falsity or nonexistence of facts used
for foundation of opinion
(a) Can’t impeach THE opinion!
f) Production of reports and writings (§ 2034.270): May demand exchange all discoverable reports
and writings by any designated expert
g) FEES Deposition of Expert Witness
i) Payments (§ 2034.430): Must pay expert’s reasonable and customary hourly or daily fee for any
time spent @ deposition
ii) Fees for preparation and travel (§ 2034.440): Must pay expert for preparing for a deposition
and for traveling to the deposing location
h) Fee shifting:
i) Person DEPOSING always pays!
i) Supplemental (rebuttal) experts (§ 2034.280):
i) Any party in exchange may submit supplemental expert witness list
j) Augmentation / Amendment (§ 2034.610): Court may grant leave to . . .
i) Augment party’s expert witness list and declaration by adding other experts
ii) Amending general substance of testimony the expert is expected to give (see Bonds v Roy)
iii) Sufficient time required: Motion to augment/amend list must be made w/ sufficient time to
allow deposition of any expert

1) Bonds v. Roy: D in a medical malpractice case designated a doctor to testify about the scope of P’s
disability before and after surgery. At trial, defense counsel sought to broaden the scope of his expert's
testimony to comment upon the "standard of care" owed by D.
a) CT: § 2034(k) mandates EXCLUSION of testimony outside of designation. Permitting expert
testimony on subjects not mentioned in the declaration required would frustrate the purpose of
2034 which envisions full disclosure so that the opposition may properly prepare for trial.
 b) 2034.610: This allows change in GENERAL SUBSTANCE of statement.. NOT adding a NEW AREA OF
testimony.

E. Systemic Oversight

General Idea: Resolve Discovery Issues & Disputes between the parties themselves w/o judicial
involvement. “Come on, we are all adults here” Rule.
Two key Principles of CA discovery: Liberal construction in favor of discovery vs requirement of informal
efforts to resolve disputes.

1) Meet and Confer Requirement:

a) Rules regulating Meet & Confer:

i) Declaration rule: 2016.040 When a discovery dispute arises between counsel in California state
court, the attorneys are required to “meet and confer” prior to filing a motion to compel further
discovery responses.
(1) If they do have to file a motion, this rule requires that a meet & confer declaration is attached
to the motion.
(2) Should state facts that atty’s attempted to confer in person or by phone or letter in good faith
attempt to resolve the issue.
ii) Failure to comply w/ above motion rule: Failing to meet & confer in GF allows sanctions
against atty who makes a motion that requires meet & confer dec page. 2023.010
(a)
iii) 2023.020: REQUIRED sanctions: No matter how the motion turns out, this rule requires that
court to impose a monetary sanction on any atty to fails to meet & confer for reasonable expenses
(including atty fees) incurred by anyone as a result of this conduct.
b) Obregon v. Superior Court: P sent interrogatories, D responded w/ some objections. P did nothing
for 5 weeks. Then, 13 days before motion to compel had to be filed, P sent D letter requesting further
responses stating that the responses given were evasive. D responded saying basically same thing w/
more elaboration as to their objections & “still gathering info”. Response received 1 day before filing
deadline. B/c of only 1 day, P filed motion w/o contacting D
i) D says: my letter offered P some suggestions as to resolving this dispute but got no response
from P, who just filed motion. Also could have gotten extension on filing motion date.
ii) Ct:
(1) R: When discovery requests are overbroad on their face, & hence do not appear reasonably
related to a legitimate discovery need, a reasonable inference can be drawn of an intent to
harass.
(2) How to figure out when attempts at informal resolution are ENOUGH?
(a) Meet in confer requires MORE than just a brief meeting or curt letter.. should try to lay all
cards out on the table.
(b) Level of effort required to show GF effort depends on circumstances.
 (i) In a larger, more complex discovery context, a greater effort at informal resolution may
be warranted. In a simpler, or more narrowly focused case, a more modest effort may
suffice.
(ii) The history of the litigation, the nature of the interaction between counsel, the nature
of the issues, the type and scope of discovery requested, the prospects for success and
other similar factors can be relevant.
(c) Townsand case: Mere bickering at depo did not constitute reasonable & GD attempts.
(i) Some effort is required in ALL circumstances. Doesn’t matter if prospect is bleak.

(3) Here: P sent GROSSLY overbroad interrogs, Upon receiving ecpected objection, P simply sent
a single brief letter, late to relevant time period.

(4) Appropriate action for motion when inadequate effort:

(a) Sanctions above are available but ct must also decide on motion:
(b) Motion can also be denied based on this failure. Ie summary denial of motion w/o reach
merits of it. But this is only for Egregious lack of GF effort to resolve dispute: basically
cases where ct finds CLEAR INTENT to burden or harass, clear dismissal of
responsibilities, cases w/ established track record for lack of GF… etc.
(c) In not such egregious cases ct should try to instead specify additional efforts before
allowing to hear motion.
(d) Factors to consider in deciding if egregious or not: past conduct of attys, history of case,
nature/extent of actual efforts, nature of discovery requested, size & complexity of case,.
(i) Past conduct includes acts beyond this case.. firm & atty reputation will FOLLOW you.
(ii) Professor: Notice very SUBJECTIVE things to look out.
c) Professor on meet & confer:
i) What is meaningful meet & confer in PRACTICE: the factors are very subjective
(1) If case is complex, we expect a LOT of meet & confer b4 going to court and addressing
discovery issues.
(a) Discovery referee: HIGHLY recommended & judges will expect you to at LEAST discuss
this option in COMPLEX cases.
(2) You cant just put in one phone call & one email regarding a discovery issue arises.
(a) EX: 50 different doc requets propounded (not really that many)
(b) The other side just responds w/ objections: we dont understand, asking for things not
relevant
(c) What you can do:
(i) Contact the other side and ASK to meet & confer and set up a time. You will NEED
several hours to go over EVERY Q, their position, express why you disagree, and they
willl then express why they disagree.
(ii) All of this will exchange will be taken notes of b/c you will need to have documented A
MEANINGFUL meet & confer to file any of the discovery motions.
(d) Minimum:
(i) Multiple requests, document all requests contested requests and the other issues.

2) Discovery Sanctions
a) Rules Regulating Sanctions:
i) Conduct subject to sanctions: 2023.010:
(1) Persisting, over objection and w/o justification, in an attempt to obtain info or materials that
are outside the scope of permissible discovery.
 (2) Employing a discovery method to cause unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense.
(3) Failing to respond or to submit to method of discovery.
(4) Making, without substantial justification, an unmeritorious objection to discovery.
(5) Making an evasive response to discovery.
(6) Disobeying a court order to provide discovery.
(7) Making or opposing, unsuccessfully and without substantial justification, a motion to compel
or to limit discovery.
(8) Failing to meet & confer when required.

ii) Types of sanctions allowed: 2030: ct may impose following for anyone misusing discovery
(1) monetary sanction: can be imposed against atty or person for the reasonable expenses,
including attys fees, incurred by anyone as a result of that conduct. If misuse ct must impose
unless justification or unjust.
(2) Issue Sanction: Ct may impose and order that designated facts shall be taken as established
in the action with the claim of the party adversely affected by misuse of the discovery. The
court may also order sanction prohibiting misuser from supporting or opposing designated
claims or defenses.
(3) evidence sanction ct may prohibiting any party engaging in the misuse of the discovery
process from introducing designated matters in evidence.
(4) terminating sanction:
(a) An order striking out the pleadings or parts of the pleadings
(b) An order staying further proceedings until an order for discovery is obeyed
(c) An order dismissing the action, or any part of the action
(d) An order rendering a judgment by default against that party.
(e) Professor: Looked at very closely by appeals ct b/c these have power to KILL the case. An
atty screw up is not enough here. Usually you need acts of the party too.
(5) EXCEPTION: Electronically stored info lost, damaged, altered, or overwritten as the result of
the routine, good faith operation of an electronic information system.

a) Doppes v. Bentley Motors, Inc: D Persistent misuse:

i) Insufficient person & papers @ depo; ct granted motion to compel & produce, no sanctions
ii) D failed to comply w/ motion to produce  ct granted 2nd motion to produce
iii) D failed to produce on second order  Ct appted discovery ref who found: D willful withholding,
no explanation dec filed, P significantly prejudiced huge loss of time. Issue sanctions approved
iv) 3 month later, D still no compliance: P sought terminating sanction, Ref & ct gave issue sanctions
again.
v) AC:
(1) Sanctions incremental: start w/ the lesser sanctions. If the lesser sanction fails to curb misuse,
a greater sanction is warranted. Continued misuse warrants incrementally harsher sanctions
until finally curbed.
(2) Terminating sanction: although not to be made lightly, should be made when a violation is
WILLFULLY, preceded by HISTORY of abuse, and where evidence shows lesser sever sanction
would not produce compliance.
(a) NoteL history of abuse can include prior cases too.
(3) Holding: TC abused discretion by denying terminating sanctions when it new D was acting
willfully, continuously to abuse AND prior lesser sanctions did not curb the abuse. Next level
 of sanctions – which was terminating sanctions – was required.

2) Protective Orders:
a) General Idea: Not about asserting abuse but about asking for PROTECTION
b) Rules regulating protective orders:
i) Oral Depo 2025.420: Before, during, or after a deposition ANY effected person (party, deponent,
random ppl) may move for protective order. The CT, for good cause shown, may make any order
to protect from from unwarranted annoyance, embarrassment, or oppression, or undue burden
and expense justice requires to protect including:
(1) No depo, or depo at different times, place, scope, conditions, limitations. Can order video,
expert or have docs sealed after… etc see rule

(2) MEET & CONFER DEC REQUIREMENT!!!

ii) Written depos: 2028.070; interrogs 2030.090(b). Inspection demands 2031.060(b), Mental
& physical exams: 2030.510, requests for admissions 2033.080(b) and exchange expert
witness info 2035.250(b)

iii) 2019.030(b): Unsuccessful attempt to obtain or resists=sanctions unless substantial justification.

c) Planned Parenthood Golden Gate v. Superior Court:

i) Facts: P picketer suing PP for battery and emotional issues. P argues that PP improperly objected
to disclosure of certain staff members & volunteers IDENTITY based on invasion of privacy b/c no
constitutional right to privacy for NON-PARTY employees, volunteers.. PP filed Protective order.
ii) TC: Followed Ref recomndtn that PP b ordered to comply for Employees/volunteers BUT NOT for
patients HOWEVER some protective measures included in PP’s protective order to be included.
iii) AC:
(1) CA constitution: all ppl have inalienable right to privacy.. protects against compelled
disclosure of private info.
(2) HOWEVER, this right is NOT absolute & must be balanced w/ other important interests.
Whenever compelled disclosure implicates privacy right, ct must BALANCE privacy interest of
individual vs state interest (litigants need for recovery) in compelling disclosure
(a) Intrusion into privacy, even if necessary must be the least INTRUSIVE MEANS.
(3) Here: Non-witness, Non-party individuals have right to freely & privately associated w/ PP.
(a) Affiliation w/ advocacy groups does implicate a PRIVACY interest.. b/c may effect freedom
of association.
(b) Ct says not JUST asking for names but addresses & numbers which also implicates an
interest in the PRIVACY of ones HOME.
(c) Balancing both: Privacy is stronger.. allowing this disclosure could lead to mass
dissimentation of private affairs like association. Litigants interest in recovery would only
allow disclosure of this type of info if it is ESSENTIAL to the fair resolution.. the need for
witnesses when PP has already given a list of employees that they may use as witnesses is
NOT enough.
d) Note: generally speaking, when it comes to disclosure info of non-parties look at the STRENGTH of
privacy interest. Ct can say that consent should be required for disclosure like they did here. But in
Pioneer case, we said they can OPT-OUT (ie not actually consent). Why the difference? Pioneer was a
defective product case & they wanted info of complaining customers.. not like PP affiliates.
 e) Discovery Refs:
i) can look at evidence and ISSUE RECOMMENDATIONS - NOT orders
ii) When they do issue the RECOMMENDATIONS - partys have 10 days to object
iii) Typically judges ALWAYS adopt REF RECOMMENDATION - so overworked, that the refs who are
retired judges or very experienced attys.
iv) Almost mandatory in complex cases. Judge will not be too happy if you don’t at least consider
getting one.

3) Discovery Completion:
a) Fairmont Insurance Co. v. Superior Court:
i) Pretrial Discovery Cut off rule: no more discovery motions may be heard.
(1) CCP As with all discovery proceedings, a party is entitled as a matter of right to complete
discovery proceedings (depos, interrogs, etc) on or before the 30th day before the date
initially set for the trial, and to have motions concerning discovery heard on or before the
15th day before the date initially set for the trial
(2) What does Initial date mean? Is it really the INITIAL trial date? What about retrials or new
trials?
(3) In the case of a retrial or new trial, discovery is reopened and these deadlines are calculated
by reference to the date initially set for the NEW ACTION.
(4) This rule refers to the FIRST date set for a trial of THE ACTION.. ie the pt was so that ppl
couldn’t get continuances, push trial dates back for purpose of discovery.

Chapter 5. Disposition Without Trial

A. Arbitration
 Legislative intent (CCP § 1141.10): Arbitration hearings provide simplified and economical procedure
for obtaining resolution for disputes.. MONEY!

1) Contractual Arbitration
a) Types:
i) Consumer contracts: Many of them have arbitration clauses
ii) Atty Stipulation: attys may agree (BUT clients must sign agreement or allow atty to sign for them
or not valid)
(1) For both.. deemed consent to arbitration JX to ENFORCE and AWARD so can not appeal award
amt.

b) Arbitrators:
i) Must be neutral 3rd parties… Impartial
ii) Typically a retired judge.
c) Petition to compel arbitration: Parties may file petition when other side refuses to enter
arbitration; may also file this petition when opposing side files a lawsuit in ct that suit fied in (or can
ask for ct to stay action) 1281.2

d) Order compelling arbitration: NOT appealable 1294 however see validity review below
e) Duty to disclose/recuse: any potential biases that if a person was aware of facts, might reasonably
entertain doubt about the judges ability to stay impartial.
CT JX for arbitration dispute:
i) Ct can only have JX when arguing validity of ARBITRATION clause.. if arguing validity of WHOLE
k.. it is up to arbitration ct to decide.

f) Arbitration procedures by agreement (CCP § 1281):

i) Enforceable: Written agreement to submit to arbitration . . . is valid, enforceable and irrevocable
ii) Employment contract: Employer must pay costs of arbitration b/c it would be unconscionable to
require employee to pay
g) Petition to confirm/vacate: VALIDITY REVIEW: See 1286.6 & 1286.2 for arbitration Q
i) Winning party: May file petition to confirm and reduce arbitration result to judgment so the
court can enforce judgment on other party
ii) Losing party: May file petition to vacate arbitration based on limited review –
(1) Cannot challenge it on errors of law or errors of facts
(a) Notice even an error of LAW!! Even if it causes substantial injustice (Moncharsh)
(2) Can only challenge based on –
(a) The award was procured by corruption, fraud or other undue means.
(b) Fraud or corrupption on arbitrator
(c) Computational error evident from arbitrator’s decision
(d) Disqualification – Arbitrator had conflict of interest
(e) Notice: Basically arbitrator needs to commit a crime to have things thrown out.
iii) VALIDITY of order to compel arbitration: not appealable but can BE reviewed after judgment.

h) Exceptions to Contractual Arbitration limitations:

i) Ct has said that ANY of above rules about ct not have much JX can be contracted around. K can
give ct more authority or more right to review… it just has to be there.

i) Rules of ct vs rules of arbitration:

i) if there is an arbitration matter in CA, the RULES are COMPLETELY different than those in a
NORMAL judicial proceeding.
ii) Fee splitting agreement: In CA, if 2 or more attys work on a case and agree to SPLIT the fee you
are UNABLE to do that UNLESS the client is informed in writing and agrees to it. Not applicable
for arbitration and that is TOTALLY fine and NOT appealable.
iii) Rules of evidence, civil procedure, etc and other normal rules DONT apply thus judges can HEAR
whatever they want and can decide however many depos & interrogatories the parties agree on.
(1) Notice that this is part of the reason why decisions can not be overturned b/c things
considered in arbitration and rules on procedure and such do NOT apply in arbitration but DO
APPLY in appeals/review courts.

j) Professor: Positives vs negatives of arbitration:

i) Positive: Theoretically parties are given autonomy to contract for WHAT THEY want.
 (1) However like in the cell phone case, there are many times when co’s stick this into a K where
person doesnt have much of a choice.
ii) Positive: Takes some of the pressure of the regular court
iii) Negative: no real review so arbitrators dont have to care about overturned or being reviewed so
they decide NOT based on actual law BUT ON who is “buttering their bread“ so to speak.
(1) Short of comitting a crime or fraud in decision, the decision that arbitrator make can NOT be
OVERTURN the DECISION
(2) HOWEVER The AWARD AMOUNT can be CHANGED/REVIEWED by a TC.
(3) Only other option is court finding the ARBITRATION clause in itself UNCONSCIONABLE:
(a) Ex of Illegible, tiny print, in a different language
iv) Notice: most fee agreements have ARBITRATION clause saying that if atty is sued you agree to
arbitration and usually have bar as arbitrator.

k) EXAM INFO.. If you get arbitration on exam.. talk about THIS rule
i) One distinction in fed & ca laws:
(1) In CA parties can agree that if something goes to arbitration.. arbitrator can NOT make
decision on erroneous law. & if does it can be reviewed by ct.
(2) Fed ct: Federal court has different RULE.. you can NOT contract around that in FEDERAL
arbitration.
(3) It has NOT yet been decided whether fed rules trump CA rule.. for now CA rule still stands.

ii) Previously CA had rule that said can NOT arbitrate class actions. Federal rule was different &
USSC rules that CA rule was OUT!

2) Judicial Arbitration:
a) Court Imposed arbitration
b) Rationale:
i) Ct lengthy and costly. Small cases suffer and expense on ct & parties too much. Arbitration has
appeared to be efficient. Thus it might be a better option
c) Failure to comply: Penalty if party refuses to comply.
d) Cases subject to arbitration (CCP 1141.11; CRC 3.811)
i) Ct. may order cases to judicial arbitration when amt. in controversy doesn’t exceed $50K
e) Discovery (CRC 3.822)
i) Parties have right to discovery, but must close discovery 15 days prior to arbitration
f) Characteristics: Informal; provide parties w/ maximum opportunity to participate directly in
resolution of disputes
g) Arbitrators: Members of state bars serve as arbitrators.. ATTYS or retired judges
h) Evidence: Must be taken in presence of arbitrator and all parties
i) Result: Non-binding b/c it would deprive parties right to jury trial
j) De Novo Trial Arbitration (CCP 1141.20-.21; CRC 3.826): Either party or both parties can request
de novo trial after arbitration
i) Timing: 30 days to request trial de novo – may not be extended!
ii) Reasoning: Since this is a judicially-ordered arbitration, parties have constitutional right to send
the case to trial
 iii) Less favorable judgment (CCP § 1141.21): If trial judgment not more favorable in either amt. of
damages or type of relief granted for party that demanded trial de novo, then the court MUST
order party to pay following nonrefundable costs and fees unless finding of substantial economic
hardship: expert witness fees; compensation for arbitrator
k) Judicial Vs Contractual:
i) ALLOWS for court review so in case below parties are arguing about if arbitration specified was
JUDICIAL or contractual.
ii) CA rule for judicial arbitration:
(1) Subject to a de novo review: basically not binding.
(2) Also 5 year statute of limitation TOLLS
(a) R: if after 4 years & 6 mo, there is a case that is in judicial arbitration - the time is tolled so
that it doesnt go over the 5 year SofL.
iii) Parties can agree to it voluntarily and JUDGES can impose it BUT this doesn’t usually happen b/c
usually one of the parties wants K arbitration and judges dont like doing it b/c they know
someone will appeal using a de novo rule.

B. Mediation

1) General rules: see all 1775

a) Mediation: Neutral person that facilitates communication between disputants to assist them in
reaching mutually acceptable agreement. Basically negotiation in alternative setting. 1775.1
i) Mediation privilege: Can’t discuss settlement / mediation information during trial; encourage
parties to be candid during settlement
ii) Introducing mediation as evidence @ trial: Mediations are generally all confidential and may
not be introduced as evidence.
2) Failure to comply: No real penalty… people have right to withdraw at anytime 3.853
3) Statutory Regime:
a) Cases subject to mediation:
i) Ct annexed Mediation: when ordered by COURT Cant be more than 50k on each side. Crc 3.871
ii) Participants may agree: Common in K to mediate before litigate or arbitrate.
(1) Ct would have same rights here as in K arbitration.. if mediation provision is unconscionable,
ct can stike out.
4) Mediation privilege: Confidentiality
a) Foxgate Homeowners’ Association, Inc. v. Bramalea California, Inc.
i) R: All communications negotiations or settlements, discussed by the participants or mediator in
the course of mediation consultation must remain confidential.
ii) R: Documents and other materials prepared for mediation purpose are protected from discovery.
iii) Professor:
(1) Mediation privilege is ABSOLUTE.. information can NOT be used for any other purpose.
Anything that happens in Mediation, stays in mediation. Even if someone is acting in a
sanctionable way.
 (2) Exception: Docs that are used in mediation, as long as NOT solely used for mediation. Can still
be introduced in ct
(3) Privilege Extends to other cases: cant sue your atty for malpractice in a later case due to
mediation issue.
(4) One of the most absolute privileges we have!

C. Case Management
1) Delay Reduction: Trial court delay reduction Act aka Fast track:
a) Required that courts resolve 90% of cases in 12 months & 100% by 24mo.
b) Also allowed for local courts to make OWN time rules for certain acts. Ie all D’s must be served w/I
60 days.
c) Current standard: Unlimited: relaxed and allows for only 75% to be done in 12, . Still same for
100%
i) Limited to be resolved by old standard.
d) CA Govt rules: Makes judges responsible for eliminating delay.
i) Pivotal rule in making this happen:
(1) Initial Case management review rule: required to take place @ 180 days days from filing
date of action. Crc 3.721
(2) Case management conference statements: Docs to be submitted by clients/attys to help in
process. Document to be submitted before case management conference
(a) Doc generally requires: brief statement of case, damages, estimated length of trial, ADR
that’s taken place, and any discovery to be completed.
e) Cases included & excluded: Rules apply to GENERAL CIVIL CASES. Juvenile, probate & domestic
relations, complex, & coordinated cases excluded. Family law, small claims, TRO, harassment also
excluded
f) Judge discretion: Judges may use discretion to exempt some cases BUT even should still resolve in 3
years. 3.712

2) Sanctions
a) 575.2 allows local Ct to set up OWN rules of sanction based on failure to meet fast track rules.
i) EG sanction for failure to meet a timeline.
ii) Failure to appear for case management conference or to file case management statement could
lead to sanctions including dismissal &/or money sanctions.
b) Garcia v. McCutchen:
i) Ct said that a court may NOT impose sanction of dismissal based on non-compliance w/ fast track
rules IF non-compliance was responsibility of ATTY and NOT litigant.
c) Professor:
i) courts are reluctant to screw a party when it is ONLY the attys fault. The parties usually only get
dinged when the PARTY itself is involved in the screw up or issue.
 ii) Fast track: Previously thought to allow judges to come down hard on litigants.. Professor says
this is history now b/c courts are so busy that they dont have time to really keep up w/ this law
BUT it is still valid - just rarely used

D. Dismissal
1) Voluntary Dismissal
a) Paying Cost Obligation:
i) NOTICE if you dismiss a case, you are OBLIGATED to pay costs.
(1) You are STATUTORILY liable for the COST that the D incurred up until that point.
ii) Usually the P will call the D and say something like, we will dismiss IF you waive statutory right to
claim cost.
iii) Costs include
(1) all costs associated w/ filing fees, service, motions, SOME discovery costs, transcripts
(2) ATTY fees NOT included - they are RARELY treated as costs.
iv) Dont have to dismiss whole; you can DISMISS portions
v) Now what does that MEAN for the payment of costs?
vi) If you dismiss A WHOLE D out of a case, then they can come after you for costs
vii) If you dismiss ONLY some of the causes of action, then the D can NOT come after you for costs.

b) FRCP 41(a)(1): P may dismiss complaint w/o a court order ONLY before opposing party files an
ANSWER or a MOTION for SUM-J.
c) CCP 581(b)(1): P may dismiss their own case w/ or w/o prejudice (up to them) at ANY time BEFORE
the ACTUAL COMMENCEMENT OF TRIAL.
d) Exception to commencement of trial rule:
i) CCP 581(e): says P MAY STILL voluntarily dismiss after trials starts by either getting consent of
ALL parties or by court order on a showing of good cause.

e) Franklin Capital Corp. v. Wilson:

i) R: a P may dismiss w/o prejudice @ ANY time BEFORE the ACTUAL COMMENCEMENT OF TRIAL
OR something similar to commencement of trial based on the MERE FORMALITY test.

ii) Mere Formality Test: VOLUNTARY dismissal is INEFFECTIVE if

(1) a) in light of a PUBLIC or FORMAL indication by the TC of the legal merits of the case (in
the context of a SUBSTANTIALLY dispositive proceeding); OR
(a) ie where TC publicly indicated that an impending motion would result in SUBSTANTIVE
dismissal of the action. Basically a tentative ruling or indication that you are going to lose
on the LEGAL MERITS of the case & P knows he cant do ANYTHING about the UPCOMING
SUBSTANTIVE dismissal. IMPOSSIBLE for P to survive the motion.
(b)
(2) b) in light of some procedural dereliction (willful neglect) by the P that made dismissal
INEVITABLE,
(a) R: Once a general demurrer is sustained w/ leave to amend, and P does NOT amend w/i
time given and does NOT extend time, he can no longer voluntarily dismiss.
(b) R: P has the RIGHT to dismiss prior to ANY decision on the AMENDED complaint.
 (i) Basically when no reason to BELIEVE that case is inherently a LOSER as a MATTER OF
LAW.

(3) Overall rule: public and formal judicial expressions of the merits of a case in the context of a
substantively dispositive proceedings; MUST keep in mind the IDEA of “trial“

f) Notes and Questions

i) What event UNAMBIGUOUSLY extinguished a CA plaintiffs right voluntarily dismiss?
(1) The official commencement of trial - ie opening statements, administering of oath.
ii) Under what circumstances can this right be cut off sooner?
(1) BUT the right can be cut off sooner IF basically the P is CLEARLY about to lose/ have his case
dismissed on the merits and he tried to dismiss just to avoid it.

2) Involuntary Dismissal
a) Failure to Prosecute
i) Most common is a dismissal due to P’s failure to diligently proceed w/ suit. These are basically
a type of penalization. PROFESSOR: BUT the court can NOT dismiss w/ prejudice when it comes
to these.
ii) 583.210: P MUST serve summons & complaint w/i 3 years of filing complaint.
iii) 583.420: Court may ONLY dismiss for delay of prosecution IF service not made w/i 2 years (Fast
track cases: note that county can statutorily assert their OWN time).
iv) Ct MAY also dismiss if P doesnt bring action to trial w/i either 2 or 3 years.
(1) If you dont bring it w/i 5 years, the court MUST dismiss - no choice.
v) But see ccp 581(i) below

b) Other involuntary dismissals:

c) 581(f): Ct may dismiss complaint when: demurrer/motion to strike all is sustained w/o leave & one
part moves to dismiss; when leave granted for a demurr or motion to strike all but P fails to respond;
d) For failure to comply w/ discovery obligations.
e) For failing to appear at trial - these are USUALLY w/o PREJUDICE.
f) 581c: Once trial does start, D can move for nonsuit after P’s opening statements can move to dismiss
for NONSUIT on some or ALL of issues. similar to motion for directed verdict.

g) Exception:
i) CCP 581(i): says that NO dismissal OF AN ACTION allowed at ANY time IF D has cross-complaint
OR motion pending for an order to TRANSFER to another COURT. Applies to both voluntary &
involuntary

E. Default and Default Judgment

1) Two types of default scenarios:
a) “True“ default: when D fails to file a timely response to a complaint (or make one of many motions
allowed).
i) 585a: once D fails to respond to complaint or make motion of some allowed kind, or fails to
answer once one of those original motions denied, the P may apply to clerk of court to obtain
entry of the D’s default THEN P can goes to court and hearing for judgment amt is determined -
specifically amt stated on complaint (and MAYBE + atty fees)
 ii) Failure to timely respond: When ∆ fails to file timely response to complaint, π may apply to clerk to obtain
entry of ∆’s default
(1) Entry of default: Does NOT need to be served on ∆!
b) Judge’s role: A judge may enter a default against ∆ only if π has precisely followed certain procedures that ensure ∆
received sufficient notice of pending action to make an informed choice as to whether to defend or ignore π’s claims
c) Court’s favor of merits: Law favors disposing cases on their merits, so any doubts must be resolved in favor of
party seeking relief from default
d) Effect: Once clerk enters default, then ∆ is no longer a party to litigation.
i) Terminates ∆’s ability to appear except to seek relief from default
ii) Establishes ∆’s liability on merits of actions in complaint
iii) DOES NOT establish amount of damages
iv) Must DOUBLE SERVE ∆ w/ statement of damages for PI/WD cases or seeks for punitive damages
e) Judgment: After entry of default, then π may obtain default judgment from court
i) 1. Clerk-entered judgment (CCP § 585(a)): Contract/recovery of money, where amount of damages is certain
ii) 2. Court-entered judgment (CCP § 585(b)): In all other actions, π may apply to court for relief demanded in
complaint through evidence
(1) Hearing of evidence: Court hears evidence and determines judgment in favor of π, not exceeding amount
stated in complaint
(2) Affidavits in lieu of testimony (CCP § 585(d)): Court may permit use of affidavits, in lieu of personal
testimony, for evidence/proof required for court-entered judgment – personal knowledge of affiant
required!
f) “Penalty” default: when D is PENALIZED for not complying w/ lit obligations which allow judge to
enter a default judgment.

2) CA v Fed:
a) Proof up hearing CA: D does NOT get to participate to Proof up hearing b/c if you have failed to
participate, you can NOT go.
b) Proof up hearing FED: D gets to go and ARGUE about DAMAGE amounts ONLY.

3) Fasuyi v. Permatex, Inc.

a) R: a judge may enter a default judgment against a D only if the P has precisely followed certain
procedures that ensure that the D received sufficient notice of the pending action to make an
informed choice as to whether to defend or ignore the plaintiff's claims.

b) The following documents are required for a default: Written application consists of
i) Request to Enter default form
(1) Declaration of MAILING COPIES to D & D’s counsel
ii) Proof of service & summons OR notice of fixing time for further response (eg after demurrer
overruled)
iii) AND in Injury or death actions P must SERVE 425.11 statement of damages & proof of that
service.

4) Relief from DEFAULT:

a) CCP 473: ct may, upon ANY terms as may be just, relieve a party from judgment, dismissal, order...
due to his mistake, inadvertence, surprise of excusable neglect.
b) Mistake/inadvertence/surprise/excusable neglect: Court may relief party b/c of those reasons,
but relief must be just
i) Timing: Application for relief must be made no more than 6 months after entry of judgment,
accompanied by attorney’s sworn affidavit attesting to mistake, inadvertence, surprise or
excusable neglect
ii) Compensatory fees: When relief granted based on attorney’s affidavit of fault, ct. shall direct
attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties
 c) Discretionary penalty (CCP § 473(c)): Upon relieving party from default, ct. may impose penalty no greater than
$1,000 on offending attorney/party
d) Clerical mistakes (CCP § 473(d)): Ct. may void judgment at any time when error was based on
clerical mistake in judgment
e) No actual notice / Motion to set aside default (CCP § 473.5): When service of summons did not
result in actual notice to ∆ in time to defend action and a default judgment entered against ∆, ∆ may
serve and file notice of motion to set aside default
i) Timing: Reasonable time, but can’t exceed 2 years after entry of default against ∆; OR 180 days
after service on him/her of written notice that default was entered (whichever is earliest)

5) Professor & Exam Tips:

a) In a personal injury or wrongful death case, any anytime P seeks ACTUAL or punitive
damages, what must P do before taking D's default?
b) P must serve the the statement of damages on the D, even if D didn't request it.

c) The court was all over this case & was all about reversing.
d) Section 473: is the MY BAD rule. Its is ABOUT a mistake and the Ds counsel went to P and said my
bad, but please do not penalize the CLIENT.
e) If it is a MISTAKE, judges will ALMOST always throw out the default.
f) The court here is REALLY focused on the P’s atty:
i) If you get this type of Q on exam, focus on the attys. Did D make a mistake... Even if FOCUS on
what P DID. Did he reach out to the other side. Did he have contact w/ the D. Did the D’s atty
reach out to P and explain mistake? How soon did P go for default AFTER the deadline ended.
g) if you have a going for a DEFAULT, and you have personal injury or wrongful death where damages
are NOT on the complaint, P MUST send
h) What if P had completed the statement of damages appropriately.

F. Settlement
1) General Procedure
a) Mandatory Settlement Conferences (CRC 3.1380)
i) Conferences: On court’s own motion OR a party’s request, court may order one or more
mandatory settlement conferences
(1) Persons attending: Trial counsel, and persons w/ full authority to settle case
ii) Statement: Each party may submit to court and serve on each party a mandatory settlement
conference statement
(1) Timing: No later than 5 days before initial date set for settlement conference
(2) Content:
(a) Good faith settlement demand
(b) Itemization of economic/non-economic damages by each π
(c) Good faith offer of settlement by each ∆
(d) Statement identifying and discussing facts and law pertinent to issues of liability and
damages
b) CA CRC 3.1380 Settlement conference: Can be set by the courts OWN motion or request of a party.
i) each pty must submit to the ct & serve all other a Mandatory settlement conference statement
ii) P must furnish settlement demand, inc itemization of econ & non econ damages
iii) D Must provide OFFER settlement
 iv) Each party must provide statement discussing in detail all facts & law pertinent to the issues of
liability & damages.
c) No general DUTY to settle EXCEPT under insurer-insured liability where great risk of recovery
BEYOND policy limits so that most reasonable manner of disposing is to settle.
d) Judges can NOT compel settlement but may direct atty to personally engage in settlement
negotiations.
i) Failure to INCREASE a settlement offer to participate meaningfully in settlement negotiations
violates NO RULES of ct & can NOT be sanctionable.
ii) Evidence of settlement offers is GENERALLY inadmissible.

e) Entry of Judgment Pursuant to Terms of Stipulation for Settlement (CCP § 877.6): Ct. may enter
judgment pursuant to settlement terms if parties stipulate, in a writing signed by parties outside
presence of court OR orally before court
i) Motion to enforce settlement: Allowed if made in good faith!
f) Motions to Enforce Settlement (CCP § 664.6): Parties may request the court to oversee settlement
until it’s enforced GF requirement
i) Requirements:
(1) Must be a writing signed by parties (not representatives); OR
(2) Orally made before court
(3) ** If request is not in writing or made orally before court, then parties must start a new
lawsuit for breach of settlement K
ii) On the record: If settlement agreement isn’t on the record (signed by parties or orally made
before court), then parties must bring lawsuit to enforce settlement
iii) Summary enforcement: Allow court to summarily dispose action
iv) Adjudicate disputed facts: Presence of disputed facts does not prevent summary enforcement of
settlement agreement
g) Offers of Settlement (CCP § 998)
i) Writing: Allows either party to make offers in writing
ii) Time for offer and acceptance:
(1) Offer: No less than 10 days before commencement of trial/arbitration
(2) Signed acceptance: Has 30 days to accept in writing and signed (by counsel for accepting
party or accepting party himself); must file settlement w/ proof of acceptance w/ clerk or
judge
(3) Entry of settlement: Court must enter settlement after filing
iii) Penalties for π’s failure to accept and obtain more favorable judgment (Jones): If π rejects
∆’s good-faith offer and fails to obtain a more favorable judgment than offer at trial, then (1) π
CANNOT recover postoffer costs; (2) π must pay ∆ post-offer costs; and (2) court may order π to
pay expert witness fees

h) Walton v. Mueller
i) CCP 664.4 allows a party to have something like a SUM-J option to ENFORCE a settlement
reached DURING PENDING LITIGATION.
ii) R: [a]n action is deemed to be pending from the time of its commencement until its final
determination upon appeal, or until the time for appeal has passed
 (1) Exception:
(a) Dissolution of marriage where child support was ongoing & ct retained CONTINUED JX to
effectuate terms of judgement W/O separate proceedings.
(b) R: a dissolution action remains pending after entry of judgment, particularly for purposes
of child support modification.

2) Settlement Planning
a) Two issues that are essential to settlement PLANNING
i) Avoiding Contribution issues:
(1) Note: Nonsettling D can sue a SETTLING contributory D for CONTRIBUTION among Joint
tortfeasors claiming that he has paid MORE than his fair share. --> meaning another ROUND of
lit
(2) This is b/c contribution right MAY ONLY be unforced after one tortfeasor has discharged the jt
judgement OR has paid more than his fair share.
ii) What to do w/ Penniless D:
(1) Presence of this D can affect settlement negotiations

b) Good Faith Settlement Hearing: Tortfeasors are entitled to hearing on issue of good faith of a
settlement entered into by π or other claimant
i) Factors Relevant - Tech–Bilt,
(1) Rough approximation of π’s total recovery and settlor’s proportionate liability
(2) Amount paid in settlement
(3) Allocation of settlement proceedings among plaintiffs
(4) Recognition that settlor should pay less than in settlement that he would if he were found
liable @ trial
(5) Financial conditions and insurance policy limits of settling defendants – BROKE likely to pay
less
(6) Existence of collusion, fraud or tortious conduct aimed to injure interests of non-settling ∆s
ii) General principle: ∆’s settlement figure must not be grossly disproportionate to what a
reasonable person, at the time of settlement, would estimate the settling ∆’s liability to be
iii) Affidavits: May determine good faith based on affidavits
iv) Effect of good-faith settlement: If ct. establishes co-tortfeasor made offer in good faith, then
other tortfeasors can’t claim against settling tortfeasor for equitable comparative contribution, or
partial/comparative indemnity
v) Effect of not finding good faith: Settling ∆ can still be sued for indemnity
vi) Incentives:
vii) Plaintiff: Has incentive to settle as much as possible b/c non-settling ∆ gets credit for settling ∆’s
offer;
viii) Non-settling defendant: If settlement is too little, then non-settling ∆ will want to challenge
settlement b/c wants more credit
c) Professor Hypo
i) Settlement amounts: EX you have a PI case w/ 3 D’s. Damages of 300K: 100 in meds & 200 is Pain
& suffering. Jury finds responsibility at: D1 - 25%; D2- 25% and D3-50%
(1) If they ALL have $, all 3 will be allocated 4 their percent of damages
 (2) Now what if D3 broke:
(a) Well then D1 & D2 would be responsibile for the WHOLE 100k but ONLY 50% of the P&S
(3) What if D2 broke:
(a) D1 & D3 would have to pay the WHOLE 100k - so they would have to split the EXTRA b/c
50% of 100K & 25% of 100K only adds to 75 so they would likely each go up to 66 & 33%.
(b) D1 & D3 would ONLY be responsible for THEIR actual portion of P&S.
ii) Now notice PPL dont want to settle b/c if they DO, the left over D’s can STILL indemnify the
settled D for DAMAGES decided on in the suit.
iii)

G. Summary Judgment
General rules
- Timing to file: 60 days after general appearance in action
- Service of notice: Service notice of motion + supporting papers at least 75 days before hearing (Cf.
FRCP: 35-day notice for SJMs)
o Mail service: Increase to 80 days if serve to CA residence; 85 days if outside of CA; 95 days if
outside of U.S.
- Opposition: 14 days before hearing on motion
- Reply: 5 days before hearing
- Support: Affidavits, declarations, admissions, answers to interrogations, depos., matters of judicial
notice
o Cf. FRCP 56: Lower threshold b/c party may rely on pleadings

Moving Papers (CCP § 437c(b)(1)); CRC 3.1350(c)

- Content: Affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of
which judicial notice will be taken
- Separate statement: Setting forth material facts which movant contends are undisputed
o Two columns: One column states undisputed facts; other column states evidence in support of
undisputed facts
- Notice of motion: Notice of hearing

Opposition Papers (CCP § 437c(b)(2)(3)

- Content: Respond and say why fact is undisputed; may supplement another statement of facts to
show why it’s disputed w/ evidence

Reply Papers (CCP § 437c(b)(4)

- Content: Make reply points made in opposition; may not sandbag non-movant and save new
arguments and facts in reply brief
Evidence “in the box”
- CCP § 437c(d) Admissible evidence
 o Support motion/opposition with admissible “in the box” evidence
o Declarations (CCP § 437c(d): Must be based on personal knowledge; not in bad faith
o Cannot admit: Inadmissible evidence (e.g., hearsay)
 3rd party discovery exception under oath: Admissible for SJM, even though that’s
hearsay
- CCP § 437c(b)(5) Evidentiary Objections
o Waive if not raised: Objections to evidence not raised @ hearing will be waived!
- CCP § 128.7 Signature required
o SJM Papers submitted to court must satisfy signature requirement

Standard (CCP § 437c(c))

- No triable issue: If all papers submitted show there is no triable/genuine issue as to any material
fact and that moving party is entitled to judgment as a matter of law.
o “Genuine issue of material fact”: When evidence would allow reasonable trier of fact to find
underlying fact in favor of non-movant according to applicable standard of proof.
- Inferences favor nonmovant: All reasonable references for nonmovant
o Reasoning: Because inferences are for jury to decide.
- Evidence: Judges may not weigh the evidence
- Credibility: Judges may not make credibility determinations
o Collateral attacks are insufficient: Just because movant can attack the credibility of a
declarant, does not mean that movant will be entitled to SJ
o Exceptions:
 1. Sole witness: When affidavit / declaration is made by sole witness to the fact;
 2. State of mind: Where a material fact is an individual’s state of mind
 ** If succeed in attacking the credibility of the sole witness / state of mind, then may be
entitled to SJ
- Contradictory inferences: Motion shall not be granted based on inferences reasonably deducible
from evidence if contradicted by other inferences or evidence that raise a triable issue as to any
material fact.
- Prism of standard of proof of evidence: Must analyze evidence through the prism of standard of
proof of evidence (preponderance of evidence; clear and convincing evidence; beyond a reasonable
doubt)

Burdens
- Movant –
o Plaintiff: Must bear burden of persuasion and prove each element of cause of action
o Defendant: Must show one or more elements of action can’t be established (by showing π
does not possess OR cannot reasonably obtain needed evidence); OR show complete
defense to action
- Non-movant –
 o Plaintiff: Must show triable issue of one or more material facts exists in action
o Defendant: Must set forth specific facts showing triable issue of material fact exists as to that
cause of action/defense

Summary adjudication (CCP § 437c(f)(1))

- Partial summary judgment: Eliminates one or more claims/defenses/issues
- Application limited to:
o One or more causes of action; affirmative defenses; damages; or issues of duty
o Cf. FRCP: Ct. has discretion to summarily adjudicate anything, including sub-issues
- Standard: Same as summary judgment motion
Denial of SJM for More Discovery (CCP § 437c(h)(i))
- If it appears that facts essential to justify opposition may exist but cannot be presented, court shall
(1) deny SJM; or (2) order continuance to permit more discovery

Court’s ruling (CCP § 437c(h)(i)

- Deny / Grant motion: Ct. must issue written or oral order . . .
o Specify reasons for determination;
o Specifically refer to evidence for reasoning

Motion for Reconsideration (CCP § 437c(f)(2)

- No second bite at SJ apple: NO motion for reconsideration for a SJM denied unless newly
discovered facts or circumstances or change of law

Review in Appellate Court (CCP 437c(m)(1))

- Appealable: SJ order is appealable like any other judgment
- Timing: 20 days after service of written notice of entry order
- Peremptory writ: Petitioner may file a petition for an peremptory writ

Chapter 6. Trial
See other notes
A. Obtaining Trial by Jury 606
1) Right to Trial by
a) Fed: 6th amend guaranteed for criminal
b) Fed: 7th amend guaranteed for civil cases
i) Both have some exceptions but generally not common
c) CA: Notice that the 6th amend APPLIES to state criminal laws BUT the 7th DOES NOT so thus
federally it is NOT required for state to guarantee jury for civil suits.
d) Legislative right: So this is all up to the LEGISLATURE if you can get jury for civil suit.
 e) Small claims: NEVER A jury trials for SMALL CLAIMS.
i) If you appeal a small claims decision, you dont get a jury trial when you get reviewed in superior
court.
f) Misdemeanors: No jury trial for these either.
i) Some P’s actually WANT to be charged w/ felony so that they can get a jury trial... that doesnt
work.
g) Notice: even if you get a jury, the right can be WAIVED and the parties can have a JUDGE
h) Notice: Both sides have a right to JURY when one exists.

2) What is jury in CA:

a) Normally if you ARE entitled to a jury trial, you get 12 jurors and 2 alternates.
b) To succeed: you need to get 9 out of 12.
i) Notice: the parties can agree to an 8 person or 6 person jury
ii) Just need 3/4 to win.
3) Equity claims & legal claims:
a) Fed: the JURY will try the legal -fact based issues, then the JUDGE will look at the equitable claims
b) CA: different; the opposite set up.
c) The judge will FIRST try the equitable issues to determine if there is even a NEED to decide the legal
claims.
d) Reasoning: This is MORE efficient to get rid of claim w/o troubling a whole jury
4) Equitable issues:
a) Restraining order, declaratory relief
b) Basically asking the court to MAKE a LEGAL FINDING that doesn’t have to do with damages.

5) Waiving right to a jury:

a) Failure to demand jury on complaint
b) Agree to waiver with opposing counsel
i) Written stipulation; OR
ii) Orally in court
c) Failure to pay for jury fee by time assigned
i) Now if other side wants jury and PAID, its will be up to them to allow the person who missed
payment to pay and have.
d) By conduct:
i) The judge and D discuss waiving jury and P doesnt SAY/DO anything - P waived
e) Contractual agreement:
i) K says arbitration - no jury trial

6) Who pays jury fees:

a) CA: Litigants pay JURY costs
b) Fed: Litigants do NOT pay

7) Jury process:
a) Jury Pool: the list of potential jurors that can be drawn from the WHOLE county
b) Jury Vaneer: the ppl who show up at the courthouse for a case. Most sent home b/c cases usually
settle right before trial so most cases wont even have to be tried.
c) Jury Panel: generally 50 ppl who are sent to a court for a SPECIFIC case. from the 50 the 12 will be
pulled.

People v Garcie: Cognizable test - here we are talking about pre-emptory challenge
 2 members of jury vaneer were lesbiens and both were dismissed.
 Wheeler motion: Criminal motion basically saying that the strikes exercised were improper
  Cognizable test:
o PPL being excluded share the
o Members being excluded cant be represented by some other group.

Preemptory challenge:
You can remove someone for whatever reason as LONG AS it is not unconstitutional.
Garcia basically saying that this WAS UNCONSTITUTIONAL.
Each side gets 6 preemptory strikes
Notice when there are MULTIPLE D’s, typically the whole D’s side will get a few more like 8 or 10
total and they basically have to argue over them.
CA: attys are allowed to Q jurors.

Voideer:
 CA:
o When attys get to ask questions to the jurors
o Usually the judges asks the general questions and then attys will ask the more specific ones.
o Judges will usually put some type of limit because this can take days and sometimes attys will
ask too many or stick to one issues
 Fed:
o Generally/usually Qening asked by judge

Advising the juries:

Before jury trial, the court will ask both sides to submit jury instructions:
Two types of jury instructions:
Form jury instructions
Called CASI - put together by commission of judges and attys
Special instructions: drafted by the attys in the case themselves
Before the trial, the parties get together and agree on jury instructions and disagree on others... They also
submit their own special instructions.

Mitchell v Gonzalez case: About whether approved jury instruction is appropriate

 The test:
o Whether there was a jury instructions error; AND
o if there was one, whether that error was prejudicial
 Ct: the jury mislead jurors so there was an error
 Ct: also found that this error was prejudicial
o Professor: the ct took a JURY INSTRUCTION that has been used for a VERY LONG TIME -
thousanda of cases - and the court said we are basically going to invalidate this instruction.
 Basically invalidated proximate cause/but for test in torts cases using JURY
INSTRUCTIONS.
 Realistically this is NOT the way to go about it but take notice that JUST B/C they are
FORM instructions, doesnt mean they are appropriate.

1) Commenting on the Evidence

Judges actions:
 Decoram in a courtroom must be upheld... A judge has been was removed as a judge for making jokes
and not being as serious in court.
 Commenting on evidence:
o Judicial commentary is ALLOWED in CA...
 Other states LIKE AZ dont allow.
o Why allow them?
 CA likes to give judges autonomy to handle their courts..
Attorney action:
o IMPERMISSIBLE ACTIONS:
 Golden rule: You CAN NOT put the JURY in the shoes of one of the parties.
 Basically cant use personal emotions against jurors.
 What if P was daughter... how would YOU feel.
 Per diem rule: Ca Backdoor to this rule: You can say: My client will be in all
this pain for life.. her life expectancy is blah blah... for that pain we are asking for
$x per day for her life.
 Can NOT vouch for client: cant say things like I have never had a better and ore honest
client... or dont say things about your firm & clients being honest.
 You can NOT do this because its NOT about the evidence... now jurors could
base decisions on
 If someone does something in closing AND you want to argue about it later.. you
have to OBJECT AND ask for a MISTRIAL... Must be then, cant be after closing.
 But DONT ALWAYS object... juries dont like things being kept from them
so USE them when it will HURT you MORE than helps you.
 Really object to things that are ONLY really HURTFUL:
 EX: party implying to jury to consider fact that other party has
INSURANCE.
 Dont discuss anything where evidence was NOT PRESENTED during trial.
o What happenes when atty goes too far:
 Professor: Very little. maybe a mistrial

Verdicts:
 Questions: was the D negligent..
o Out of the 12 jurors.. you only need 3/4 so 9 jurors saying yes means yes.
o Here lets say jurors 1-9 say yes and 10-12 say no... so you got your 9
 Lets say first Q above and then the second Q asks if D’s negligence was the proximate cause.
o This time 1-3 say No but 4-12 say yes.. NOW notice that you STILL have 9 but 3 of those 9
(jurors 10-12) had already said that D was NOT negligent in the first Q... so can this still count?
o YES... you need 9... even if they are inconsistent like this, 9 will work.
 Rosch v VW:
o Basically about the above issue... yes you can have inconsist jurors and count their vote.

General vs Special verdict:

 Why would you want a general over a special?
o Special verdicts are more complicated... more moving parts... meaning MORE options for
appeals and turnovers.
 This is actually the case... Special verdicts more likely to be appealed and overturned
than a general verdict. By far more prone to attacks.
o General verdict: implicit and presumed that the jurors found on ALL the elements. but this
really only works for basic simple cases.
  If you have multiple D’s, cant really have a general b/c you will need apportionment.

IMPEACHING a VERDICT.
What happens when a jury comes back w/ a verdict?
 How do the attys find out what went down w/ the jury and how they decided?
o Jury’s can request jury be POLLED after decision. Judge would ask them generally about
decision.
o BUT atty’s also ask the judge to advise the jury that they would be willing to talk to them
about personal choices...
 This is one-on-one type meeting.. up to the jurors if they want to but this is almost
ALWAYS done and this is what helps attys figure out what if anything went wrong.
 Impeaching their own verdict:
o Now, a jury could decide that the verdict reached was incorrect and try to impeach the verdict
but this is NEXT TO IMPOSSIBLE in CA... most states dont even allow it.
 A more likely option is having the judge call a mistrial.
 Steele case:
o a verdict may not be impeached by inquiring into a juror’s mental or subjective reasoning
processes, and evidence of what the juror “felt” or how he understood (or misunderstood) the
instructions or evidence is inadmissible.
o jurors may testify to ‘overt acts’—that is, such statements, conduct, conditions, or events as
are ‘open to sight, hearing, and the other senses and thus subject to corroboration. EX:
 Prejudging and refusing to deliberate.
 Concealed juror bias.

1) Directed Verdict
a) Directed verdict:
i) At the beginning, only D can do that
ii) After presentation of evidence... or at any time before the jury walks back in.. either party can
request a NON-suit.
iii) Basically asking the court to direct a verdict in their favor.
iv) Almost NEVER gets granted... NOTHING in it for judge... better to wait for jury to come back and
then if the judge doesnt like the JUDGEMENT... now they can give motion not withstanding the
judgment.
v) Also, doesnt get granted b/c it will be appealed and IF overturned.. dont want to go back and have
to do it again.. might as well have an actual verdict to just instate.
Dispositive Trial Motions
- JMOL Motions: Motions granted only if evidence allows one reasonable conclusion
o Non-suit (CCP § 581c): After π completes opening statement or presentation of evidence, ∆
may, without waiving right to offer evidence in the event motion is not granted, move for
judgment b/c π can’t win as a matter of law
o Directed verdict (CCP § 630): @ the end of both sides, either party can file DV motion
o JNOV (CCP § 629): Party may file JNOV b/c no reasonable jury could have reached that
verdict
o Cf. FRCP: Must make DV motion before deliberation if want to make JNOV (whereas CCP
allows parties to make any motion @ any time)
- New trial (CCP § 657, 659, 660): May vacate verdict and grant new trial for reasons that materially
affect substantial rights of such party:
- Irregularity in proceedings; misconduct of jury; accident or surprise; newly discovered evidence;
excessive or inadequate damages; insufficiency of evidence to justify verdict; error in law
2) Judgment Notwithstanding the Verdict 689
a) Garretson v. Harold I. Miller, PLC
i) Clear time to USE a JNOV because CLEAR that EVIDENCE for ONE of the ELEMENTS was missing.
ii) Standards for the JNOV is like directed verdict... look at w/ light most favorable to the NON-
moving party
3) Note on Additur and Remittitur
a) Addittur & remitturrer: CA is different from FED cout ONLY in respect to additure.
b) in CA, the court can come UP with a HIGHER number if they feel that the jury amount is NOT
sufficient... BUT the can NOT force that number on the D... they can just suggest it and ask the D to
either accept it or have a new trial.
c) Fed ct: all they can do is require a new trial.
d) In both courts: they can reduce whatever they would like.

Arbitration Case: Moncharsh

If an arbitrator make an error of fact, can the Superior court vacate that award or modify it.? Generally
speaking there is no judicial review with regard to errors of fact in regard to the arbitrator. One of the
reasons is that in many arbitrations, there is no record kept. In most case there is no error of fact, but
sometimes the parties agree that they can review errors of fact in their arbitration agreement.

What about errors of law? Two points:

Court says that the only grounds on which to review an arbitration award is based on a statute. If the
arbitration statutes authorize it, then the court can review based on what the statute authorizes. Generally
speaking there is no statute that authorizes review for errors of law, even errors that are clear on the face of
the award. In the absence of general lines to the contrary, you are assuming that risk when you agree to
arbitration. What minimizes the risk that you will get a grossly unfair decision? There is a statute which
guards against specific instances of injustice. Statute makes sure that you have good neutral
arbitrators. Because there is so much power put into the hands of the arbitrator, what the statue does is
minimize the risk of grossly unfair awards.

What is the presumption at the parties intent: presumption is that the parties intend for the arbitration to
be final and binding. If you want it to be something other than that, you must spell it out in the arbitration
agreement. That is the key ruling from the Moncharsh case.

The source of an arbitrators powers are from the arbitration agreement. The general presumption will be
that the parties want this to be binding and final, which means that there is no review of binding effect of the
agreement. Again, you see the general rule being enforced.

Another part of this opinion which is probably dicta, about the question of who gets to resolve what issues
as between a court an arbitrator.

Plaintiff employer v. def. employee

Compel arbitration, who has the authority in regards to submitting to arbitration. The two things that are
typically raised are:
1. arbitration agreement is invalid
2. The particular dispute is not arbitrable.

General rule, whatever would make a general contract invalid would be a proper defense to an
arbitration. Coercion, unconscionability.

The second ground, the dispute is not arbitratable deals with the scope of the arbitration.

Who has the authority to resolve these defenses? If the defense is that the arbitration clause itself is invalid
on contract grounds, who has the authority to resolve that defense? The court has the authority to do it.

What if you claim that your entire contract is invalid? Who has the authority to resolve that defense?

In the absence of any contrary intent on the agreement, claims will be deemed subject to arbitration, claims
of fraud in the inducement are arbitrable (for arbitrator to resolve) but allegations that arbitration clauses
are invalid must be resolved by the court. Fraud in inducement of the contract is where the promisor knows
what he is signing, but his consent is induced by fraud, and fraud in the execution is that you don’t know
what you are signing and you don’t intend to enter into a contract.

Getting back to Moncharsh, because the employee was really not saying that the employment contract was
invalid, the court says that there was no waiver of this illegality argument by not first submitting it to a
court. The court notes that if you don’t raise it before the arbitrator, then you will have waived it. There
was no waiver here by the employee, the argument really though, what is the argument that he is making
about the illegality of the contract?

Contends that it is illegal because it violated public policy. It also says that, in general there is not going to
be judicial review of this kind of public policy argument. In other words, that argument is for the arbitrator
to resolve and like any other issue in the dispute, the arbitrators decision will be final.