Civ Pro II Outline
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CIV PRO II OUTLINE
TERMS
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“Propound” discovery/rogs
o “Respond” to discovery
“Bring” a motion or “move the court” (“opening brief”)
o “Opposition” to the brief, opposition to the motion, “oppose” the motion
o “Reply” to the opposition
“Defendant’s” counsel
“Complaint” – opens up the case, tells a story
“Answer” – defendant answer to complaint (not a “response”, “reply”, etc.)
“File” – send it to the court
“Serve” – give it to the other side
“Opening brief” = brief of person bringing the motion)
Pleadings = complaint & answer
Demur is “sustained or overruled”, all other motions are “granted or denied”
“Lodged” order – not “in” the ct file, “attached” to the file
UNDERSTANDING THE RULES
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Code of Civil Procedure (“CCP”)
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California Rules of Court (“CRC”)
o CRC is a supplement to the CCP and have the authority of the CCP as long as they do not conflict
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Local Rules (“LR”)
o Every CA county enacts local rules to supplement the CCP and CRC
o LR have the same validity as CCP and CRC as long as they do not conflict
o Note CRC 981.1 – Preemption of Local Rules
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Preempts local rules relating to pleadings, demurrers ex parte applicants, motions, discovery,
provisional remedies, form and format of papers
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Local courts left with more scheduling/ministerial rules
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Except: LR 7.9 – case management conferences
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Except: LR 7.12 – litigation conduct
o Prior law provided for sanctions, now are more like guidelines
1.
INTRODUCTION TO CALIFORNIA CIVIL PROCEDURE
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Model: The “Guatemala Broccoli Case”
A. Obtaining a Case
B. Meeting Client
C. Determining Jurisdiction and Venue
D. Developing a Strategy:
1. Story of the Case
2. Pleadings Strategy
3. Discovery Strategy
4. Gathering Evidence
5. Alternative Dispute Resolution
Civ Pro II Outline
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UNDERTAKING THE REPRESENTATION: THE NEW CLIENT
a. Meeting and Assessing the Prospective Client: find out client’s story, but d/n believe everything
b. Checking for Conflicts
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Current conflict?
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Later conflict based on type of practice? c/n treat client like a “hot potato” (i.e., can’t later dump less
important client, so s/t law firm won’t take on “small cases”)
o Truck Ins. Exch. v. Fireman's Fund Ins. Co.: Law firm wants to represent Truck (bc more
profitable) but law firm was representing opposing side in other unrelated cases. Law firm tried
to bypass rule by moving to withdrawal as counsel on other cases so the former client rule
would apply, but ct doesn’t go for it, otherwise any lawyer could get around the rule this way.
Held – affirm motion to automatically disqualify the law firm from representing Truck
c.
Investigating and Assessing the Merits
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you have to do your own factual investigation
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Reasonable, low cost background check (e.g., google, lexis for prior suits)
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CCP §§ 128.5 - .7: Sanctions for Bad Faith/ Frivolous Actions or Tactics
o Any time you act in bad faith with frivolous actions or tactics, can be subject to sanctions
sanctions usually take the form of money (often occur over discovery issues)
o Frivolous equals
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Totally and completely without merit
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For the sole purpose of harassing an opposing party
o Types of sanctions
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Monetary
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Issue (take issue out of case)
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Discovery (can’t propound any more rogs or jury won’t be able to hear responses to
certain discovery)
d. Maintaining Confidentiality/ Loyalty
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Zealous advocate for client
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Respect client, never badmouth to opposing counsel
e. Acting with Client’s Authorization
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Client is boss, but attorney can take lead on strategy/procedural matters
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Always document client decisions in letters
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Can’t make decisions altering substantial rights without client permission (e.g., settlement)
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Blanton v. Womancare, Inc.: Ps’s attorney agreed to settle a suit arising out of alleged
malpractice during abortion through binding arbitration. However, P had objected to this agreement,
but attorney made it anyway. Held - att lacked authority to waive the substantial rights of P by
entering into binding arbitration agreement when P did not consent, did nothing beyond retention of
att to suggest that he and authority to enter such an agreement, and she repudiated the agreement
as soon as she learned of it. Att has no apparent authority to bind client to an agreement for
arbitration, and authority not enlarged by fact he has been retained.
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NOTE: Can’t talk directly to other party (except in depo, e.g., “can you tell me why you would turn down
an offer of $15K? didn’t your attorney tell you we offered $15K?”)
f.
Determining Limitations Deadlines
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Immediate responsibility - is there a limitations problem?
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If statute of limitations coming up – emphasize to client you need to get this filed w/i X months, or you
will lose your right to sue
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If problem, may have to file quick-and-dirty complaint (e.g., form complaint), then you immediately file
papers asking to be dismissed as attorney
o D/n have to serve other side with emergency complaint
o Then send letter to client saying you will cooperate with his new counsel, explain what happened,
recommend filing of amended complaint
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CRC 376: Motion to Be Relieved As Counsel: the earlier in the matter you move, the easier and
faster it is to get out (e.g., can’t drop client on eve of trial)…
o when you bring this motion, you serve it on your client bc in a way you are now adverse to your
client
o Be careful not to do anything that impinges on the attorney-client relationship and confidentiality,
have to be careful how you tell the court you want to get out – use the judicial counsel form
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When you might want to make motion…
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Filed form complaint bc statute of limitations would have expired
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Want to get rid of annoying client
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Attorney incapacitated
CRC 376 requirements
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Notice of motion and motion
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Memo of P&A
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Attorney Declaration – why motion brought without compromising confidentiality
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Served on client & other parties
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Proposed order
C/n prejudice client with withdrawal – ct often won’t let you if too close to trial
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Kirsch v. Duryea: Lawyer wanted to withdraw from medical malpractice case bc he believed
the case lacked merit after investigating. Eight months bf the final date for prosecution, he
informed the client of his intent and sent him substitution of attorney forms, explaining the need
for quick action and that he would cooperate with new counsel but the client never responded to
his communications. He withdrew 2 months prior to trial deadline and case ended up being
dismissed bc failure to comply with five-year trial deadline. Held - lawyer could withdraw
g. Suing the Government (Claims Notice)
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Notice of claim must be sent to govt
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Usually, you have about 90 days from occurrence of issue/accident to give the city notice
o You lose your claim if you don’t give the notice of claim within the right time period
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Purpose: (1) weed out frivolous law suits, (2) Planning budget by knowing pending suits
h. Avoiding Vexatious Litigants
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Vexatious Litigant Rule – person sues in pro per (w/o a lawyer), if you lose enough times in enough
years (5 cases in 7 yrs), there is a point you are declared a “vexatious litigant”, at that point, even if
you have a legitimate case, the judge decides whether you can have your law suit (“boy who cried
wolf”), judge can deny you your day in court…solution = get an attorney and then vexatious litigant
rules don’t apply
o D/n apply if P has lawyer (lawyer can be disciplined if case has no merit)
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Kim v. Walker: frivolous law suit case, P suing everyone, “vexatious” litigant
Civ Pro II Outline
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PROCEEDING WITH THE REPRESENTATION: THE DEMAND LETTER
a. Setting Forth the Case and Demand
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Send to D attorney (find out who D attorney is)
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States facts (what D did to my client), laws, D liability, here’s what we are going to do about it and
what we want from you (always ask for something more than you want), scare tactic
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You are permitted to sue without demand letter, but you usually send it
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Ds response to demand letter
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Rarely will result in offer
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Usually, Ds attorney will write a letter back in a similar tone (but a little bit “meaner” bc they
are on the defense)…it’s not true, even if it did happen, it’s not the way you say, even it’s as
you say, it’s not against the law, etc.
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Ds attorney should review demand letter w/client and get all the facts as clear as you can,
try to get the client to be honest and candid so you can do a better job and remind client not
to spoliate evidence
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Then need to research the law and put forward your best first show (don’t get another chance
to put forward a first impression (write well, don’t lose our cool, don’t back down, just come
back firmly with the law, think creatively – turn it around – if there’s any liability, it’s your
client that has a liability to us)
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a good response to demand letter can deter people from sueing (are you aware there’s a
chance they will sue back)
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Next steps: decide if phone call or a meeting and negotiate or straight to ct
b. Preserving Evidence
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Mention in demand letter that other side is on notice and must preserve evidence - will help you case
if there ends up being spoliation
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Warning re Spoliation
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Spoliation = destroy evidence in a wrongful way
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Strong sanctions (e.g., COA is out of case, huge $ penalties, may even dismiss the entire case) and
bad jury verdicts
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NOTE: if you try to “hide” a document by giving a large number of documents, this is not spoliation,
but you have to review all these docs first to make sure no violation of attorney-client privilege
(otherwise you may possibly be waiving the privilege for the whole litigation)
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Cedars-Sinai Medical Center v. Superior Court: Ps wanted to bring an additional cause of action
separately suing for the spoliation of documents. Ct said you can only sue for the medical malpractice
bc there are other remedies for spoliation (e.g., ask for automatic victory on underlying COA),
otherwise cases could go on forever, problem of finality, courts could be tied up all day with spoliation
COA, ample enough penalty if ct grants judgment on underlying case
d. Avoiding Threat of Criminal Action
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Cannot threaten bringing out someone’s criminal past
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Nguyen v. Proton Technology Corp.: management upset bc competitor “taking” their good
sales employees, sent a letter to that company and tell them Nguyen had committed criminal acts
(and they cited the wrong criminal act), Held - not allowed to bring out a person’s criminal past
unless it is absolutely essential
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CALIF. RULE OF PROFESSIONAL CONDUCT 5-100: cannot threaten to present criminal, administrative,
or disciplinary charges to obtain an advantage in a civil dispute
e. Litigation Privilege re Defamation
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Litigation privilege = safe harbor for defamation (demand letter, complaint, depo, etc.)
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LIMITS to privilege (must be a part of litigation process)
o Must have a legitimate nexus to the litigation
o Can’t write a letter to other side’s employer that defames
o Can’t threaten criminal action (you are in civil litigation)
o Need to have standing
o Silberg v. Anderson: Former husband filed intentional tort against former wife and her attorney for
loss of reasonable visitation with his children, damage to his pre, and emotional distress in regards to
the divorce action. Held – Under Cal Civil Code 47, Ds statements in the divorce action were privileged
bc they further the objects of litigation, and fell w/i the scope of the litigation privilege
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BRINGING THE ACTION (THE “LAWSUIT”)
a. Determining Jurisdiction
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Standing: must be entitled to bring this case, may not have standing if not directly affected by COA
(e.g., non-smoker w/n have standing in tobacco litigation)
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Exhaustion
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Req to exhaust administrative remedies in some types of cases (e.g., employment)
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If you d/n first exhaust, may lose claim due to SOL problem
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Federal/ State
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Federal or State ct?
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If state, which county?
o Where D resides, D principal place of business, headquarters
o Where tort occurred
o Where K entered into, performed, breached
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Note: if you are in the wrong ct, you are wasting time
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Removal/remand
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D may try to “remove” case from state ct to federal ct
o If D wants to remove to federal ct, should first answer in state ct so D can answer with a
general denial, and then ask to remove, if it stays in federal ct, you don’t have to answer
again in federal ct
o If you remove bf answering in state ct, and then you don’t answer in time in federal ct,
unlike state ct, you can’t claim “mistake, inadvertence, omission” and P can get a default
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P can then move for “remand” (if successful, case gets remanded to state ct)
b. Considering Venue Options (consider any bias, benefits, etc.)
c. Drafting the Pleadings
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Pleadings are formal allegations of the parties and denials or affirmative defenses
o Complaint: file with the court, it’s now on record in the court (even though no service yet, you
have preserved your statute of limitations)
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Format
o Caption
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CCP 422.30: Every pleading shall have a caption setting forth:
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Name of ct and county in which action brought
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Title of action
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CCP 422.40: Complaint—Title Includes Names of All Parties
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In the complaint the title shall include the name of al the parties
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In other pleadings it is ok to state the name of the first party on each side
o Background (quick summary) / Parties
o Common Facts (story in numbered paragraph)
o Causes of Action (each paragraph lays out elements)
o Prayer (“pray for damages”)
o NOTE: in fed ct, will need to plead jdx and any venue issues, in state ct not obliged to argue
jdx or to say why you are in los angeles
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NOTE: Verified v. Unverified complaint
o Unverified: “based on information and belief”
o Verified: every fact in this complaint is absolutely true, verification page signed by client
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FORMAT Rules: most follow specific rules as to margins, fonts, paper, etc. or a judge could throw back
o CRC 201: Requirements for Papers filed with ct
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Must use recycled paper for
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All original papers filed w/court and all copies of papers, documents, exhibits, etc.
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The original record on appeal from a limited civil case, any brief filed with the court to be
heard by the appellate division, all copies of the documents
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Size of Paper, Type Style, and Print Color
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Papers must be typewritten or printed—or photocopies
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In no smaller than 12 font
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On opaque, unglazed paper, white or unbleached, of standard quality not less than 20
pound weight
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Must be 8.5 by 11 inches
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Typeface must be equivalent to Courier, Helvetica or Times Roman
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Color must be black or blue-black
Line Spacing and Numbering
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Can only use one side of the paper and lines must be double or 1.5 spaced and numbered
consecutively
Page numbering and hole punching
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Each page must be numbered consecutively at the bottom
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Each paper presented for filing must contain two pre-punched normal-sized holes,
centered 2.5 inches apart, and 5/8 inch from the top
Format of first page
Footer: below page # and divided from the rest of the document page by a printed line—must
have the title of the paper or a clear abbreviation and must be in at least 10 point font
Changes on Face of Paper—Conformance of Copies-initialed by the clerk or judge
Several Causes of Action, Defenses, Etc.:must be separately stated
Acceptance for filing
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Clerk d/n have to accept for filing papers that do not comply with the rule, except
o C/n reject a paper for filing only because it is handwritten or handprinted or that
handwriting is in a color other than black or blue-black
o For good cause shown the court may permit the filing of papers that do not comply
with the rule
This rule does not apply to Judicial Counsel forms, local court forms, or forms for juvenile
dependency proceedings produced by the state social services
CRC 201.5: Papers Not Filed with the Court
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There are certain papers, whether offered separately or as attachments to other documents,
that are not to be filed unless they are offered as relevant to the determination of an issue in a
law and motion proceeding or other hearing or are ordered filed for good cause
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Ex: subpoena, deposition notice, notice of intention to record testimony of audio or videotape,
etc.
CRC 201.8: Case Cover Sheet included with complaint
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Case Cover Sheet made by judicial counsel (like other forms)
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Check boxes (type of case, type of jdx, etc.)
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If no cover sheet, clerk supposed to still file, but sanctions under rul2 227 can be imposed
(some clerks can still screw with you)
Cites to non-CA cases – must attach copy of case – which rule?
d. Responding to Pleadings (Answer)
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Issues when D gets the complaint:
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Was service proper? (motion to quash?)
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Does P have standing?
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Did P exhaust administrative remedies? (housing or employment case)
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Remove or transfer?
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Need to answer or demur (don’t ever blow off the complaint)
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CCP. § 430.10(e) - Options for Objecting to Pleadings: party against whom complaint has
been filed may object, by demurrer or answer on the grounds that the pleading does not state
facts sufficient to constitute a cause of action
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General Denial
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IF UNVERIFIED COMPLAINT, under CCP 431.30(d), can deny everything with one sentence (i.e.,
general denial) “D generally denies each and every allegation of P’s complaint”
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BUT, IF IT IS A VERIFIED COMPLAINT
o You need to do an answer, paragraph by paragraph even you are denying everything,
o You have to admit what you have to admit (e.g., Fisher is a professor at LLS”)
o May say D neither admits nor denies (bc it is too early to know)
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Affirmative Defenses
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Each affirmative defense is 1 paragraph (unlike COA)
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If you leave out an affirmative defense, you might be denied opportunity to argue it in front of a
jury (some judges may allow except SOL affirmative defense which is waived if you fail to allege in
answer by statute)
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Note: shouldn’t have too many affirmative defenses, only the defenses that truly apply
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Motions on the Pleadings – see law and motion section
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e. CRC 201.7: Times and Deadlines
1. Complaint: file bf statute of limitations
2. Service of complaint and POS filed with ct
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Within 60 days after filing of complaint
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If complaint amended to add D, added D services within 30 days after filing amendment
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After service, file with the court a proof of service – if you don’t file proof within 60 days of filing
the complaint, the ct automatically sends out an “OSC re sanctions” (lawyer has to show why he
shouldn’t be sanctioned)
3. Timing of responsive pleadings
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30 days to answer, object, or otherwise respond
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Note: if notice & ack: 20-days to ack, 30 days from signing ack to answer
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Parties may stipulate w/o leave of ct to one 15-day extension
o If you need more time after extension, need to make motion to the ct, usually judge will let you
the first time around
o When you know you are going to settle, you may be able to get long extensions to file
answer (e.g., 3-4 months), don’t want to start spending money on litigation, better to give
that money as part of a settlement, once a litigation gets rolling, hard to settle…both sides
just keep stipulating to put off filing of the answer, explain to judge that you are close to
settling, if judge believes it is happening, you’ll get a few extra continuances
o NOTE: if you need to make motion bc other side wouldn’t give you the 15-day extension, judge
will be pissed at other side
o Local Rules encourage attorneys to advise clients not to be hard asses about time deadlines
o LR 7.12(a)(3) – advise against clients granting no time extensions to be “tough”
o LR 7.12(a)(5) – Should not bargain substantive rights against professional courtesy, but
can attach conditions to preserve rights that granting a time extension might jeopardize
4. OSC: when ct issues OSC, responsive papers must be filed and served no less than 5 calendar days
bf hearing
5. NOTE: (not under this rule) if complaint served through notice and acknowledgement, D has 20 days
from receipt of acknowledgement to mail back to P, then D has 30 days to answer from the day
acknowledgment signed (so effectively could have up to 50 days to answer)
6. NOTE CRC 325: if you file a demur and it is overruled, L has 10 days to answer (if you need more
time, you can ask the judge for another 15 days)
7. NOTE: CRC 326: Motions for Change of Venue: following denial of a motion to transfer, D has 30
days to move to strike, demur, or otherwise plead if D has not otherwise filed a response
Civ Pro II Outline
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THE CASE IS AFOOT, AND PROCESS IS SERVED
a. Serving Process
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Process = summons & complaint (need both to serve process)
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If properly served process, deemed to know about suit. If not proper, you are deemed to not “know”
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CCP 415.10 Personal Service
o Summons & complaint may be served by personal delivery to person to be served
o Deemed complete on day of delivery
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CCP 415.20 Service by leaving summons and complaint at office or home of person being served and
mailing copy to person being served (Substitute service)
o Leave copy during usual office hours at his office, or, if no physical address known, leave copy
at usual mailing address (other than PO) w/person apparently in charge, AND
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Must be left with person at least 18 yrs who is informed of contents
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(if office) competent person in charge of his office/place of business
o Mail a copy (first class, prepaid) to person to be served at place copy left
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Deemed complete on 10th day of mailing
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CCP 415.21 Gated Community
o Person shall be granted access to gate community for a reasonable time to serve process upon
showing the guard an ID and something that shows the guard the person is representing a
sheriff or marshal or is a registered process server
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CCP 415.30 By Mail - Notice and Acknowledgement
o Summons can be served by mail—send summons and complaint to the person to be served,
together with two copies of the notice and acknowledgement and a return envelope with the
postage prepaid (use statutory language for acknowledgment)
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NOTE: in practice you would first call D and ask if they will accept service this way
otherwise they will say they never saw it
o Service by this method is complete on the date a written acknowledgement of receipt of
summons is executed—if the receipt is returned to the sender
o If the acknowledgement is not retruned w/i 20 days of mailing, then the party to whom the
summons was sent will have to pay cost of Ps service
o Timing: Must return ack 20 days from receipt, 30 days from signing ack to answer complaint
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CCP 415.40 Service on Person Outside the State
o Summons can be served on person outside this state in any manner provided by the article or
by sending a copy of the summons and complaint to the person by first class, prepaid mail
requiring a return receipt
o Service in this manner is deemed complete on the 10th day after mailing
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CCP 415.50 Service by Publication for Persons that Cannot be Served Otherwise
o Summons can be served by publication if it appears to the court that after reasonable diligence
the party cannot be served in another manner specified and
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Cause of action exists against the party or they are a necessary party to the action
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Party has or claims an interest in real property that is subject to the jrdx of the court
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CCP 415.95 Service on Business Org by Leaving Summons and Complaint and Mailing Copy
o Can be served on a business by leaving the copies during usual business hours with:
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The person “apparently in charge” (this may not be the secretary at the reception
desk, need to be able to explain why they seemed to be the person in charge)
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Who must be 18 years old
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Tell the person this is for “NAME OF PERSON TO BE SERVED”, and
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Then you mail a copy first class to the person to be served
o Service in this manner is deemed complete on the 10th day after the mailing
o NOTE: CCP 416.10 – Corporations
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Can serve the person designated as agent for service of process
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Can get the name and address of the agent of service from the State Secretary
of State website and serve in ways you would serve an individual
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Can serve prez or other head of corp, a vice-president, a secretary, a treasurer, a
general manager, or a person authorized by the corporation to receive service
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Engebretson & Co., Inc. v. Harrison: original summons / complaint served properly, but P amended
complaint and changed amt of $ wanted and only mailed amended complaint. Rule: d/n have to serve
process when you amend, just have to mail it with a POS (proof of service) - EXCEPTION: substantive
amendment must serve process. D claims substantive change, so needed to serve process, thus default
should be vacated. Held – default should be vacated bc amended complaint not adequately served bc
substantive change
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o
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In real practice of law, once we are in the case (original complaint & answer), we talk to the
opposing counsel, introduce yourself after serving the complaint, then if you want to amend the
complaint, ask lawyer if okay to just mail the amendment
NOTE: if tort case (personal injury, wrongful death, and punitive) – not allowed to put in the
amount of money bc legislature did not want you to intimidate the other side, can’t put a value
on a “life”. “Statement of damages” – D may request a formal statement of damages that
states the amount in a separate letter
b. Defaults
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CCP 585: P can file for entry of default if D fails to answer the complaint (petition ct to give you victory
bc D didn’t answer)
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CCP 587: P must attach to moving papers an affidavit stating that a copy of the application has been
mailed to Ds attorney or D at last known address
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P has obligations when the D defaults
o CRC 201.7 (g) – Request for Entry of Default: if response not served w/i time limits, the P
within 10 days after the time for service has elapsed must file a request for entry of default –
failure to do so may lead to sanctions
o CRC 201.7 (h) – Default Judgment: when a default is entered, party who requested the entry
of default must obtain a default judgment against the defaulting party within 45 days after
entry of default—failure to obtain entry of judgment against defaulting party or to request an
extension of time to apply for default judgment may result in sanctions
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D can still get relief from the judgment in default (strong PP to vacate defaults bc PP that every
person entitled to day in ct even if they have screwed up)
o If the D messed up but the mistake should be forgiven under CCP 473(b) – Mistake,
excusable neglect, error (e.g., thought the service was invalid) – ct MUST excuse neglect,
inadvertence, etc. and vacate default
o If the P messed up and did not serve proper, D can bring a motion to quash service
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NOTE: you have to declare you are specially appearing (not acknowledging that you
are a D)
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After a motion to quash, P has to serve all over again
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Why would you move to quash?
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Make them look bad, playing the game
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See the other side, maybe bump into the P
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Tell client you “won” your first squirmish
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If service improper a second time, could ask the judge to bring sanctions (lawyer, not
client, has to pay the sanctions)
o If the D was served by publication and was never aware of the lawsuit
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Smith v. Los Angeles Bookbinders’ Union No.: P partnership arguing that default against D labor
union should stand. P filed libel complaint against union who answered. P filed an amended complaint,
which D did not answer. Held- when a complaint is amended after it is answered, D is not bound to
answer do novo. If he decides not to, his original answer stands as his answer to the amended
complaint. D will not be in default except as to the additional facts set up in the amended complaint.
c. Whether to Answer or Demur
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Demur: objection to complaint bc either it:
o Fails to state a claim (i.e., left out an element of a claim)
o Claim it is trying to state is indefinite (not sure what they are accusing me of)
o E.g., alleging cause of action for breach of K, but they failed to articulate whether it is a written
or oral K

Demur is “sustained or overruled”, all other motions are “granted or denied”
o Even if demur is sustained, it will likely be “sustained with leave to amend”, which allows P to
fix his complaint and amend AND judge gives P a “judicial roadmap” bc he explains how it needs
to be amended
o Judges usually won’t throw out a complaint unless you have a strong objection like Statute of
Limitations

STRATEGY BALANCE (demur or answer?)
o Disadvantage:

D/n want to reveal to the other side some of your defense strategy and their
weaknesses

Because it is a very aggressive tactic to take on defense – you are saying the P doesn’t
even deserve a day in ct and should be thrown out
Civ Pro II Outline
Page 10
Don’t want to waste money: not sure we are going to win and the bill gets passed to
the client, why cost client extra money if you d/n believe you will win

If you lose, you’ve already sustained your first loss, don’t want client to lose confidence
Advantage

Sometimes up against a P attorney who is weak and has a weak complaint (get rid of
the case for $30K)… by third failure to amend complaint correctly, D will ask to sustain
the demur with prejudice (can never be brought again)

If you win, P forced to give up more information in a richer complaint
NOTE: you can always file a motion to strike: can’t get entire complaint thrown out, but there
are a few things that need to be out

o
o
Civ Pro II Outline
6.
Page 11
ATTACKING THE PLEADINGS/LAW-AND-MOTION PRACTICE
a. Demurrers

CCP 430.10: Demurrer: may object on the following grounds

No jdx (e.g., d/n meet min money threshold, in the wrong town of the superior ct)

No standing - person who filed the pleading does not have the legal capacity to sue

Pleading does not state facts sufficient to constitute a cause of action

Bartling v. Glendale Adventist Medical Center: P brought action against D hospital who
refused to discontinue its efforts to sustain the patient’s life. Held - Ds demurrer sustained
without leave to amend when there was no clear legal standard in place when the patient was
hospitalized and hospital’s efforts to keep patient in life were in god faith.

The pleading is uncertain (ambiguous and unintelligible)

In K action, cannot be determined from the pleading whether the K is written, oral, or implied by
conduct

Another action pending between the same parties on the same COA

Defect or misjoinder of parties

CRC 325: Demurrers
o Each ground of demurrer shall be in a separate paragraph and shall state whether it applies to
the entire pleading or to specified causes of actions of defenses
o Shall state on the 1st pg name of party filing and party that is the subject of the demurrer
o When a demurrer is called for hearing and one party does not appear the court shall dispose of
the demurrer on the merits at the request of the party appearing—if neither party appears the
court can dispose of the demurrer on the merits or drop it from the calendar
o Following a ruling on a demurrer, leave to answer or amend within 10 days shall be
deemed granted in most cases
o A motion to dismiss the entire action and for entry of judgment after expiration of the time to
amend following the sustaining of a demurrer can be made by ex parte application
o A demurrer to a cause of action can be filed without answering other causes of action—D shall
have 10 days to strike, demur or otherwise plead to the complaint or remaining causes of
action following

The overruling of the demurrer

Amendment of the complaint or the expiration of the time to amend if demurrer was
sustained with leave to amend

The sustaining of the demurrer if the demurrer was sustained without leave to amend

Demur or in the alternative move to strike – may do both at the same time – save time in the
demur – see facts in “motion to strike” (Separate but bring both at same time)…”to preserve ct
resources, the ct is invited to defer to our demur filed simultaneously…”
o Motion to strike should be filed side by side with Demurs if possible, should be filed within the
same deadlines of 30 days (which you have for answering)
Civ Pro II Outline
Page 12
b. Motions: Note that 4 motions are typically made: 1) challenging service of summons, 2) challenging
personal jurisdiction, 3) challenging venue, and 4) attacking the pleadings

to Strike
o Not asking judge to throw out case, but you are saying that certain stuff in the complaint has to
strike…
o In Substance paragraph(s)- state the paragraph/lines you want to strike
o CRC 329

Notice of motion to strike shall quote in full the portions sought to be stricken except
where motion is to strike an entire paragraph, COA, or defense (then cite the
paragraph)

Specifications shall be numbered consecutively

Shall be given w/i the time allowed to plead, if a demurrer is filed concurrently, the
motion and demurrer shall be heard at the same time
o CCP §436: ct may strike out any matter that is

irrelevant

false (tricky, isn’t this what the law suit is going to be about? Hard without discovery to
get a judge to say something is false, but some times you can, some attorneys throw in
junk)

improper (make reference to race, ethnicity, sexual preference, etc.) – no purpose to
the actual allegation

all or any part of pleading not drawn or filed in conformity with the laws of this state, a
court rule, or an order of the court
o Trick if need more pages – if you have more to say than the 15 pages allows, file demur
and motion to strike at the same time (if you lose on your demur, at least some stuff may
be stricken) – if highly complex case that has a ton of stuff, you could in your demur give the
factual background and in the motion to strike you could say “to conserve judicial resources, D
will not re-state herein the same factual background that D has stated in the demur filed today
along side simultaneous with the motion to strike”)

to Quash
o Motion to challenge service of summons
o Needs to come first bc once you file the other motions, you are “in the case”, you waive the
issue of service
o D/n have to file side by side with other motions
o Why would you move to quash?

Make them look bad, playing the game

See the other side, maybe bump into the P

Tell client you “won” your first squirmish

to Change Venue (motion to transfer)
o CRC 326: Motions for Change of Venue

Following denial of a motion to transfer, D has 30 days to move to strike, demur, or
otherwise plead if D has not otherwise filed a response

If motion is granted then 30 days is deemed granted from the date the receiving court
mails notice of receipt of the case and the new case number

Note: if you lose on a motion to transfer, you usually have to be all the costs of the
opposition
o CCP 395: Proper Venue – superior court in the county where…

Ds or some of them reside or

tort injury occurred or

K entered into, was to be performed, or breached or

Corp principal place of biz
o CCP 396

If the court lacks subject matter jrdx they have to transfer the case

If the venue is incorrect, and the opposing party chooses a location that is the correct
venue, the court must transfer to the correct venue

This is mandatory if the venue really is wrong
o CCP 397 – Change of Venue-General Grounds

Under this situation, venue is proper but you want the court to send the lawsuit
somewhere else because it is a better place for the case to be heard
Civ Pro II Outline
Page 13









c.
MOTION for
MOTION for

Different from where the wrong venue is selected
Court may, on motion, change the place or trial if

When the court designated in the complaint is not the proper court

When there is reason to believe that an impartial trial cannot be had

When the convenience of witnesses and the ends of justice would be promoted
by the change

When from any cause there is no judge of the court qualified to act

In certain situations with divorce proceedings
NOTE: the ct will do a balancing of the equities analysis: the premise of venue is
based on fairness, what makes the most sense giving P the benefit of the doubt (bc P is
“master of the complaint”) but also understanding D is a person to…if P has brought
action in a reasonable location, we usually give the benefit of the doubt to P (but if P
selects a “hokey” forum, it will be transferred…e.g., all the witnesses and evidence for
both sides is in another county)…BALANCING FACTORS
witnesses
residence
P is “master of the complaint”
Interest of the jdx in applying the law for protecting people in its jdx
NOTE: CTS will have more sympathy for an individual than a corporation, but will
consider what the individual was doing in the other part of the state (e.g., tort action)
preliminary injunction or restraining order
removal (to fed ct)
Declarations and [Proposed} Orders

When you file any motion, you attach a Declaration and lodge a PROPOSED ORDER

Attorney Declaration (exception to hearsay rule):
1. “I, Nicole Herft, am an attorney for D NAME in the above captioned case…”
2. I make this declaration in support of the demur by D…
3. Every fact I state in this declaration I know from personal info and if so called upon, I could testify
in ct
4. FACTS (each fact will be given a separate number – copy and past facts from P&A and then break
into numbered paragraphs) - MAKE SURE DECLARATION IS IN FIRST PERSON – e.g., D told “me”
(instead of attorney) , “I” called Ps attorney
5. Signature under penalty of perjury

Proposed order is “lodged” (separate doc, not put in file)
o If you win, ct just crosses out “proposed” or a few other things that don’t apply
d. Noticing Motions

Notice Paragraph (every motion starts with a notice) – date, time, location, etc…
e. Meet and Confer

NEED TO HAVE A “MEET AND CONFER” bf bringing motion

call on telephone bf you bring the motion, ct wants to know that you tried to resolve the issue bf
bringing the motion

call other side – “I’m calling to meet and confer”…

send brief one paragraph note to other side to document m&c conversation
f.
Setting the Hearing Date

Call the court clerk and set up a date, give case number and name
o Statutes sets the outer limits – have to file demur within 30 days of filing the complaint, other
side will have time to file an opposition, more time to file a reply

Opposition

Reply
LAW AND MOTION: PROCEDURAL REQUIREMENTS

Beware of meet and confer requirements
o Before going through the expense of bringing the motion, talking with the other side may come to
compromise
o LR 7.12(h) Motion Practice

Before filing a motion, counsel should engage in more than a mere pro forma discussion of its
purpose in an effort to resolve the issue
Civ Pro II Outline

Page 14

A lawyer should not force his or her adversary to make a motion and then not oppose it
CRC 312: Forms of Motions

All motions contain:
o Notice Paragraph (every motion starts with a notice) – date, time, location, etc…
o Motion itself: Substance paragraph(s) (e.g., “D demurs on the following grounds”)
o Memorandum of Points & Authorities CRC 313: Memoranda of Ps & As

intro/background

Statement of facts (supported by declarations)

legal analysis

conclusion

Declaration
o Other papers in support of motion (e.g., declarations, exhibits, appendices, pleadings)

Page limits:
o Opening brief / moving papers: 15 pages

If you go over the page limit, some judges may not read anything, some will read the first 15
pages and “strike” everything after p. 15

Exception: MSJ can be 20 pages
o Opposition: 15 pages

Exception: MSJ can be 20 pages
o Reply: 10 pages

May only address new info raised in the opposition, should not repeat anything in the opening
brief
o Any motion over 10 pages (11+) must have: Table of Contents & Table of Authorities

judges will use Table of Authorities to read the actual cases

One of the biggest mistakes attorney’s make is cite to a case just from reading the headnote…
o Unlimited pages for: exhibits, declarations, attachments, table of contents, table of authorities,
proof of service, separate statements of undisputed facts

Pagination
o Caption page not numbered
o Pages of tables numbers consecutively using lower-case Roman numerals
o Pages of text numbered consecutively using Arabic numerals

Cites to non-CA authorities
o A copy of the authority must be lodged with the papers and tabbed as exhibits

Proposed orders or judgments: must be lodged and served with the moving papers but must not be
attached to them
Civ Pro II Outline
7.
Page 15
DISCOVERY, PT. 1: STRATEGY AND MAPPING OUT THE ATTACK (under oath)
o
Both sides have to lay out a discovery strategy
o War to discover the truth (the enemy is defending its lies)
o Remember if the best tool you have is the deposition to get out the truth, how do you get the
other stuff from them without them seeing where you are going, will the tools give away what
you are trying to snuff out

CCP 2017.010-.020 [General]
o CCP 2017.010
o Any party may obtain discovery regarding any matter, not privileged, that is relevant to the
subject matter involved in the the pending action or to the determination of any motion if
o The matter itself is admissible in evidence or appears reasonably calculated to lead to the
discovery of admissible evidence
o May be obtained of the identity and location of persons having knowledge of any discoverable
matter, as well as of the existence, description, nature, custody, condition, and location of any
document, tangible thing, or land or other property
o CCP 2017.20
o Ct may limit scope if burden, expense, or intrusiveness outweighs the likelihood that info sought
will lead to discovery of admissible evidence
o Ct shall impose monetary sanction against any party who unsuccessfully makes or opposes a
motion for a protective order, unless it finds that the one subject to the sanction acted with
substantial justification or other circumstances make the sanction ujnjust

CCP 2017.710-.740 [Electronic]
o Technology includes email, CD-ROM, Internet Web sites, electronic docs,etc.
o Pursuant to a noticed motion, ct may enter order authorizing use of technology in conducting discovery
of certain issues
o Procedures adopted in the order must meet following criteria:
o Promote cost-effective and efficient discovery
o Do not impose or req an undue expenditure of time or money
o Do not create an undue economic burden or hardship
o Promote open competition among vendors to facilitate the highest quality service at the lowest
reasonable cost to the litigants
o Do not req parties to purchase exceptional or unnecessary services, hardware, or software
a. Case Management Conference CRC 212
o Judge wants to meet you and decide certain issues once everyone has been served and the case is
getting ready to move
o Ct must review the case no later than 180 days after filing initial complaint
o At the CMC, ct must decide whether to
 Assign the case to an ADR process
 Set the case for trial
 Take action regarding and other matters in 3.727 (e.g., discovery issues, jury trial, estimated
length of trial, nature of injuries, amt of damages, early settlement conference, date discovery
is to be completed, etc.)
o Notice: judge must give no later than 45 days bf CMC
o Duty to meet and confer (3.724): no later than 30 days bf CMC - need to agree on what the issues
are (may have to agree to disagree)

Identify and if possible resolve anticipated motions

Identify uncontested facts and issues that could be stipulated on

Determine if issues can be narrowed or claims/defenses eliminated

Determine if settlement is possible

Identify dates parties are available or not for trial, including reasons why not

Other issues listed in CRC 2121
o Case Management Statement(3.725): each party must file and serve 15 days bf CMC
 Any 2 or more parties may file a joint statement
 Must use mandatory form, all applicable items must be completed (includes things decided in
the meet and confer)
o Case Management ORDER (3.728)
 Ct must enter a order setting a schedule for subsequent proceedings and otherwise providing
for the management of the case
Civ Pro II Outline
Page 16




Estimated length of trial
Referral of the case to ADR
Trial date
NOTE: judge may try to shorten your time frame and days needed for trial, and may try to
convince you to do ADR
b. Interrogatories (don’t file with ct) CCP. 2030.010-.090 & 2030.210-.310 [Written Interrogatories]

Written Rogs = questions written in the form of the statement (e.g., Identify the people at your
company, state the basis of your law suit)

CCP 2030.010: General
o Any party may obtain discovery by propounding to the other party written interrogatories to be
answered under oath

CCP 2030.020: Timing
o P may propound 10 days after service of summons or on appearance by that party (whichever
occurs first) or earlier on motion for good cause
o D may propound at any time

CCP 2030.030: Number Limit Limit of 35
o Don’t use all 35 in the beginning

First round – basic info that is core to the case, who are the players, who was involved in the K,
procedures for cleaning the floors when there are spills

Note: want to get info, but don’t want them to know what you are up to, start with stuff they
expect (state all facts pertaining to your first cause of action)
o Code of Civil Procedure – may propound more than 35, attach a certain paragraph that essentially
says that the cases complexity necessitates propounding more than 35, if you go to less than 50,
usually ok

NOTE: DECLARATION should state that it is a complex case, takes more than 35 – can keep
doing them until other side calls you on it…can’t get in trouble if you use the declaration (note:
ct can say not persuaded that he was justified)
o IF OTHER SIDE SENDS TOO MANY ROGS –

do you waive your right to object they are over the limit if you have already responded when
they are over their limit? NO – “enough is enough”…”didn’t want to bother you until now…”

Assume opposing side will come back with objections and give you as little as they feel they have to –
need to get on the phone “I need more or we’ll have to go to judge)

CA- not supposed to put instructions at the beginning of Rogs (can put them at the beginning of
Demand for Inspection and RFAs) (instruction accompanies appropriate Rog)

Strategic way to get more info – use ALLCAPS and identify the terms broadly so you can get more info get mileage out of each Rog, use certain verbs or nouns (put in all caps and define)
o IDENTIFY all PERSONS who negotiated the CONTRACT with DEFENDANT

For the purposes of these interrogatories IDENTIFY means to state the name, home address,
office address, email, etc…

…PERSONS means all individuals who work for corp anywhere

CONTRACT means any and all Ks or written agreements ever entered into between P and D

DEFENDANT means….
o IDENTIFY all EVIDENCE that supports YOUR first cause of action in the COMPLAINT

For the purposes of these interrogatories…IDENTIFY means state the nature of evidence
(documentary, oral, tangible), the location of the evidence, the nature of the evidence…

EVIDENCE means paper, computer, electronic, etc.

YOUR refers to D NAME and anyone else employed by D, etc.

COMPLAINT means first complaint and any subsequent amended complaint (once it is in first
complaint, it’s in play, allowed to get evidence even if they drop in later complaint)

RESPONSE to ROGS
o Other side Responds to Rogs – 30 days to respond, if they don’t respond in 30 days, they
are deemed to waive all objections

Response deadline is based on when put in mail (or can agree on fax date

If you can’t get your response in on time, call other side or write letter, email, fax, etc. and ask
other side for more time, you are supposed to give the other side 15 more days (judge won’t be
happy if you have to file motion to get more time…plus they may need more time for s/m later)

Don’t forget to send confirmation later “this is to confirm that you agreed to extend Ps response
date by 15 days, March X”

There comes a point when it comes to extensions that you are allowed to say “no”
o In your response reprint each interrogatory followed by response
Civ Pro II Outline
Page 17
o
o
c.
When you respond you always proffer every possible objection that is legit, bc otherwise you waive
your objection

Sample Objections: seeks info that is:

Oppressive,

Unduly/overly burdensome

Not reasonably calculated to lead discovery of admissible evidence,

Would violate attorney-client privilege, work product doctrine,

Vague and ambiguous (might give them info they weren’t asking for in first
place),

Proprietary info

Overbroad

“Nothwithstanding these objections, X responds as follows…”
Must give up reasonably responsive stuff

May not “stonewall” (i.e., won’t give discovery)

But can preserve objections

If you don’t give a witness name in discovery when they ask for it, you can’t bring that witness
in
Inspection Demands

CAL. CODE CIV. PROC. §§ 2031.010-.060 & 2031.210-.320 [Inspection Demands]

CA – Document Demand, Production Demand, Demand for Inspection

Demanding other side give you all their documents, results of lab tests, computer hard chip, etc.

Document Demand: Can demand electronic docs, hard drives, etc.

Technically – allowed to give documents in the way they are stored, but if you have them in file
cabinets, not allowed to take the docs out of the files

First write written responses setting forth objections
o Then, Notwithstanding these objections, D will produce all documents responsive to Demand #8
(unless there really is a big problem)

NOTE: if you need to get docs from TP - Subpoena (makes an attorney an “officer of the court” – right
to demand documents
d. Requests for Admission (RFA)

CAL. CODE CIV. PROC. §§ 2033.010-.080 & 2033.210-.300 [Requests for Admission]

Limit of 35

“Admit X”

Only proper response is “admitted” or “denied”
o if you ever “deny” and other side proves that it was true, they can impose monetary sanctions for
“denying falsely” to reimburse the other side the full cost of their having to authenticate despite
your denial

If you miss your 30 day deadline to respond to RFAs, everything is deemed admitted

Purpose:
a. Authenticate Docs: way to authenticate documents for trial (“admit this is an authenticated
document”), otherwise you would have to call in the author for a deposition or get somebody to sign
an affidavit;
o NOTE: may have implicitly authenticated documents previously demanded, but just bc it
is produced, d/n mean they are authenticating
b. Prepare for SJ to avoid trial: If you file a motion for summary judgment (P asks the judge to call
it their victory bc all the evidence supports the COA; D says we don’t need a trial based on the
evidence), RFAs allow you to authenticate the evidence you’ll use for SJ
e. Depositions

CAL. CODE CIV. PROC. §§ 2025.210-.280; 2025.310-.340; & 2025.410-.480 [Depositions]

Sometimes it’s necessary to embarrass liars, your one shot to get them to slip up and say something
honest (liars “practicing” how to prevent you from finding out they’ve been lying)

Best thing going for us – they are under oath (perjury can result in imprisonment, fine, case thrown
out)

Send out “Notice of Deposition of X”

Please take notice that a deposition of X is taking place at PLACE at TIME

Usually first call witness and set up time so you know he can make it

If you have depos out of town (may try to set up all depos at same time to save client money of flying
back and forth) – need to strategize with client bc client paying the bill

Anyone who is a party to the case needs to get a Notice of Depo
Civ Pro II Outline



f.
Page 18
Has to state it will be in presence of a stenographer or ct reporter who is duly authorized to administer
oath
Person has to be notified that oath will be taken
If you want to videotape, need to put it in the notice
o Much more expensive to videotape
Starting with Basics/ Avoid Showing Hand

Everything leading up to the depos, but don’t want to give up strategy, but want to get as much as you
can so you know who you are dealing with

Tension broad request:
o Pros: if they don’t give something without objecting to being too broad, they can’t bring it in earlier
(if you fail to produce, can’t bring it into trial)
o If too broad: classic objection “overbroad”
g. Subsequent Requests and Sets

Keep propounding sets (Set 1, Set 2, etc.) as you learn new things
h. Conduct of the Deposition

Starts with administration of the oath

Basic rules (speak loud, speak clearly, don’t speak when I’m talking, don’t shake your head to convey
answers, if unclear ask me to clarify)

Basic info (state your name, address, etc.)
o By asking easy, gentle questions, you soften the person’s defenses

Objections
o Objection “calls for speculation”, “asked and answered”
o Putting on record
o Just bc there is an objection, DON’T give up on your question – say “are you instructing your client
not to respond?” “No” …then you can keep asking (if they say “yes, attorney-client, proprietary,
then you don’t press”



Must always be honest and tell your client to be honest
When person finishes answer, always ask “what else?”, then ask “anything else?” (this gives use some
of the best stuff in depo)
Sometimes, save the best stuff for end of day (4pm) when person is tired…
i.
Responding to Discovery

VERIFICATION:
o Every time I respond to discovery, need to attach a verification page
o Verification signed by someone who takes personal responsibility of party who responded

If party is a big corp, inside counsel will find someone to do it (won’t want to take personal
responsibility himself) (e.g., employment case – HR person will sign)

One person has to take personal responsibility
o LAWYER never signs the verification
j.
Preserving Objections

Need to put in the objection
o Problem if you inadvertently left it out but want to bring it in trial
o Protect yourself, but know most of objections are bogus

OBJECTIONS: “D objects to this interrogatory on the grounds that this interrogatory is…”
o Oppressive
o Burdensome
o Seeks info not reasonably calculated to lead to the discovery of admissible evidence
o Seek proprietary info (can’t easily get the Coca-cola formula, etc.)
o Equally available to the other side (e.g., public info)
o Unintelligible
o Compound
o Asks for info already provided
o Vague and ambiguous
o Attorney-client privilege (and other privileges)
Civ Pro II Outline


Page 19
o Work product doctrine
Notwithstanding these objections, P responds as follows…(and gives the requested info)
NOTE: one of the biggest mistakes attorneys make is that when they write their written objections to
the rogs, they paste and copy the same objections to every single rog
o you need to give the judge a feeling that at least you are objecting in good faith
o there are judges that sanction attorneys when this happens
k. Motions to Compel

MOTION TO COMPEL RESPONSES TO X - if other side won’t respond

face page

attach copy of pertinent discovery request (don’t send all, just page in question)

last page – signature
o NOTE: when you respond to any written discovery, the responding paper attaches a separate
verification page (person subject to being called to a witness at trial), CLIENT SIGNS

copy of their response (their face page, pertinent response page, and last page they attached to their
responses)

P&A

attach meet and confer letter where you spelled out what you are asking for
l.
Protective Orders

Defense to motion to compel

Must have meet and confer before you can move for a protective order
o write a letter to the other side, citing law why you shouldn’t have to give up certain discovery
o they will write something back
o that’s your meet and confer
o bring your motion

Telling ct that we shouldn’t have to give this up…attach P&A…

if ct grants, it holds that you don’t have to tell OR you have to give it up but it’s going to be under seal
and it may only be seen by the following: lawyer, maybe acct, and any expert witnesses that have to
testify based on this (LEAKING IS VERY BAD – MAY GET DIS-BARRED)

Proposed Protective order: [PROPOSED] in brackets – will be crossed out when judge signs
o Lodged order – not “in” the ct file, “attached” to the file
o Things “under seal” are not “in” the file

If judge signs protective order – stamp discovery documents “confidential” or “high confidential –
attorneys’ eyes only”

Protective order – most people don’t get to see it and have to get rid of it soon

Type of people who get to see it:
o Opposing attorney
o Opposing attorney damages expert
o Possibly Other expert witnesses (e.g., doctors to see embarrassing injury)
m. Ramifications of Propounding Late

Discovery cut off was agreed on at the CMC

Don’t ever propound critical discovery fewer than 30 days bf cut off otherwise they don’t have to
respond by CMC
n. Ramifications of Responding Late

May waive your objections
CAL. CODE CIV. PROC. §§ 2017.010-.020 [General]
CAL. CODE CIV. PROC. §§ 2017.710-.740 [Electronic]
Civ Pro II Outline
8.
RESEARCH CODE OF CIVIL PROCEDURE; DRAFT AND RESPOND TO DISCOVERY
INSERT:
3-4 SAMPLE ROGs
3-4 SAMPLE REPSONSES TO ROGS
3-4 INSPECTION DEMANDS
3-4 RESPONSES TO INSPECTION DEMANDS
3-4 REQUESTS FOR ADMISSIONS
RESPONSES TO RFAs
WHAT TO EXPECT IN A DEPO
Page 20
Civ Pro II Outline
9.
Page 21
DISCOVERY, PT. 2: IN HOT PURSUIT
a. Continuing with Rogs, Docs, RFAs, and Depos
b. Judicial Council Form Interrogatories

put out by the CA state judiciary

Don’t count against your 35 minimum rogs

Begin with definitions and instruction (even though special rogs (“specials”) can’t have this)

Check off boxes that are pertinent to your case (bad practice to check off every box)

Can ask on the beginning without worrying about tipping your hand

Responses are written out exactly the same way as responses to specials (every response needs to
start with complete retyping)
c.
Time Limits / Quantitative Limits on Propounding

Responding to Discovery: 30 days from time you get discovery request
o If you don’t respond by deadline, you have waived your objections (if RFA, then considered
“admitted”)
o If you feel responses are not responsive: call the attorney, the responses are not responsive…and
have a discussion…if doesn’t work, you can file motion to compel (but try to work it out and
compromise)
o Note: opposing side can give you an extension, just make sure you document

Cts are OK with changing these discovery deadlines if you agree

Motion to Compel: 45 days from receipt of responses

Propounding discovery
o Ps: 10 days after service (need to wait for D to “catch his breath”)

If we start early it is strategy – drive you into an early submission and early settlement, so hit
strong with discovery
o Ds: can start propounding as soon as you get the summons

Strategy – don’t want to start using up rogs right away, so probably wouldn’t propound early

BUT, it can be a good thing to do: little guy suing – sometimes P drops out of law suit because
not prepared (esp when case not very legit)
d. The Code Statutes

?
e. Expert Witnesses

CAL. CODE CIV. PROC. §§ 2034.210-.310 [Expert Witnesses]

CAL. CODE CIV. PROC. §§ 2034.410-.470 [Expert Witness Depositions]
Civ Pro II Outline
10.
Page 22
DISCOVERY, PT. 3: THE MOTIONS
more than any other types of motions results in sanctions
$3-$4K average sanction: paying for attorney time on other side
but shouldn’t make you gun shy
a. Motions to Compel

b. Protective Orders

c.
Monetary Sanctions

(CAL. CODE CIV. PROC. §§ 2023.010-.040) [Sanctions for Discovery Misconduct]
o
Monetary sanctions: could have resolved it, wasted judges and other side’s time, prepare memo
how much money it cost – go back to billing sheets and show how much time you billed your client
for discovery (as well as other attorneys, paralegals, who worked on it and westlaw/lexis charges,
etc.)

there is a form for this
o ISSUE SANCTION – throw the issue out of the case
o EVIDENCTION SANCTIONS- will throw out certain evidence, didn’t respond to discovery at the
time, failed to bring it in time
o TERMINATING SANCTION -???

NOTE: discovery motions will not show up on your bar record
d. Ex Parte Applications (note: “application” not “motion”)

Under law, judges are not allowed to talk with one side, have friendships with one side,
o ex parte application when you need to talk with the judge
o E.g., emergency protective order, injunction, restraining order

CAL. R. OF CT. 379: Ex Parte Applications
o First have your “application” (like a notice of motion)
o need to put inside  “good cause” exists
o Need to include statement of “notification” of other side (“I notified X, associate at Y)
o Need P&A memo (make it short and sweet – 3 pages)
o Declaration – standard declaration form (paragraph that says who you are, then subsequent
paragraphs have factual statements from the P&A), need to add a paragraph about “notification”

Notification/ Good Cause
o In the notification, tell opposing counsel that you need to go to the judge and you don’t have any
time

always invite opposing counsel to meeting

sometimes they will say they are against it, sometimes they will say we don’t care, sometimes
will be in favor
o DEADLINE: Need to give notice by 10am the previous day of when you want to go in (must give
application by 10am Monday if you want to go in Tuesday)
o Exception to deadline: “good cause” bc did everything you could to notify
e. Orders Shortening Time

What if you don’t get response in time to file motion because of the discovery cut off date
o NOTE: when you bring a motion, you need to give the other side 15 days advanced notice

Ask the judge for the following when you don’t have time to file a motion to compel because of
discovery cut off date:
o ask judge for an “order shortening time”: shorten amount of time that I have to give the other
side for responding
f.
Evidentiary Objections to Experts

EW was not admitted into the case to testify on that part of the case

EW is not competent on this issue (if not their field), or statement outside of field of expertise
g. CRC 335 [Format of Discovery Motions]

Need to have “good cause” when you bring a discovery motion – must use the words “good cause”

Need to attach exhibits:
Civ Pro II Outline
Page 23
Response cover page
Pages that have the responses that are the subject
Response verification page – verification page is CRITICAL! (bc that’s who the judge is going to
hold responsible)
o Don’t have to attach questions because they are part of the response
If depo related motion, the attachment includes:
o Cover page of depo transcript
o Questionable pages within the transcript
o Ct reporter page (ct reporter signs off on the transcript)
Hope judge brings order that there will be further responses
o
o
o


Civ Pro II Outline
11.
Page 24
SUMMARY ADJUDICATION/ SUMMARY JUDGMENT

Overview
o trying to prevent a trial - convince the judge the case is no longer about facts, now only about
interpreting law
o “ALL material facts are undisputed”, therefore, as a matter of law, ct should grant motion (can’t
have 1 disputed material fact)
o Most important piece of work in litigation, motion with many attachments that show the judge all your
facts

CCP 437(c)
o Can move for SJ if:

D contends action has no merit or

P contends there is no defense to the action.
o Timing for motion: 60 days have passed since the general appearance
o Notice of the motion: served at least 75 days bf SJ hearing

Add 5 days for service by mail

Add 10 days if the address is outside the state

Add 20 days if the address is outside the US

Add 2 days for fax, express mail, or overnight delivery
o Motion hearing: no later 30 days bf trial

Filing of the motion does not extend the time that a party has to file a responsive pleading
o Supporting Docs:

Affidavits, declarations, admissions, answers to interrogatories, depos

Supporting evidence needs to be made by a person with personal knowledge—objections to
this requirement need to be made at the hearing or are waived

Separate statement of undisputed material facts

Each material fact shall be followed by a reference to supporting evidence.
o Opposition to motion: served and filed not less than 14 days bf hearing

Shall have affidavits, declarations, answers to interrogatories, admissions, depos, and matters of
which judicial notice can be taken

Include a separate statement that responds to each of the material facts contended by the
moving party to be undisputed—indicating whether the party agrees or disagrees that they are
disputed

Any other material facts opposing party contends are disputed

Each disputed material fact followed by a reference to the supporting evidence

Failure to comply with the supporting statement may be enough for the court to grant the
motion
o Reply to opposition: Served and filed not less than 5 days bf hearing

NOTE: reply can only address new stuff in the opposition
o CT ruling

MSJ granted if no triable issue as to any material fact and moving party entitled to judgment as a
matter of law

MSJ may not be denied on the grounds of credibility for want of cross-examination—but it can be
denied where the only proof of material fact offered is an affidavit or declaration by an individual
that was the sole witness to the fact, or where fact is a state of mind and only established by the
individual’s affirmation

Girard v. Ball: attorney used his attorney background to intimidate people and then he files
for SJ and throws in all kinds of specious evidence (bald assertions without real evidentiary
support), things ct looks at:

evidence: is it valid? What is believable v. bogus? E.g., deposition evidence

If you admit something against interest, you can’t claim something else

If MSJ denied on the ground there is a triable issue of material fact, ct shall specify the facts to
which ct has determined there is a controversy.

If the motion is granted, ct shall give reasons for its determination

MSJ is an appealable judgment

20 days after service of a written entry of the order

Can be extended for one period not to exceed 10 days
o Summary Adjudication

Party can move for summary adjudication on one or more causes of action within an action, or one
or more affirmative defenses

Motion for summary adjudication can be made by itself or as an alternative to a MSJ
Civ Pro II Outline
Page 25

CRC 342 PROCEDURAL REQUIREMENTS – page limit of P&A 20
o Motion must contain and be supported by the following documents

Notice of motion by moving party

Separate statement of undisputed material facts in support of the motion

Separately identify each cause of action, claim, defense, etc. and each supporting material fact
claimed to be without dispute with respect to the cause of action, claim, defense, etc.

In a 2 column format the statement must state in numerical sequence the undisputed material
facts in the first column and the evidence that establishes those undisputed facts in the
second column. Citation to the evidence must include reference to the exhibit, title, page, and
line numbers

Memorandum of points and authorities in support of motion

focus on material facts

Heading: “Undisputed facts demonstrate that…” (each element in your case)

Show that the facts speak for themselves

Opening and opposition can be up to 20 pages, unlimited pages for separate statements of
undisputed facts, exhibits, declarations

Evidence in support of motion

RFA responses

Responses to rogs

Parts of depositions

Declarations

Affadavits

Request for judicial notice in support of motion
o Opposition to motion (goal is to show at least one fact is disputed)– docs must consist of the
following, separately stapled and titled

Memo of points and authorities in opposition to motion

Separate statement of undisputed material facts in opposition to motion

Material fact claimed undisputed on the left side of the page, below which the evidence the
moving party used to establish that fact must be set out.

On the right side of the page the response must state whether it is disputed or undisputed. If
disputed, then on the right side of the page need to have the nature of the dispute and
describe the evidence that supports (citation to exhibits, title, page, and line numbers)

Evidence in opposition to motion

Request for judicial notice in opposition to motion
o If the evidence exceeds 25 pages, it must be in a separately bound volume an have a TOC.
o Upon request, a party must within 3 days provide to another party or the court an electronic version
of the separate statement

Objections to Evidence
o CRC 3.1352

A party desiring to make an objection to evidence in the papers on a motion for summary
judgment must either

Submit objections in writing under rule 3.1354 or

Make arrangements for a court reporter to be at the hearing
o CRC 3.1354: Form of Written objections to Evidence

Time for filing and service:

Served and filed at the same time as the objecting party’s opposition or reply papers are
served and filed

NOTE: opposition or reply can contain separate statement which references objection number
in right column, but objections must not be restated or reargued in such statement

Format of objections

Served and filed separately form other papers in support or opposition to motion

Must be numbered consecutively and:
o Identify name of doc in which specific material objected to is in
o Exhibit, title, page, and line number of objected to material
o Quote or set forth the objectionable statement or material
o State the grounds for each objection

Proposed order

Must submit proposed order with objections
o Sample objections

Failure to sign affidavit
Civ Pro II Outline
Page 26



D/n include verification page with rog,
Depo responses taken out of context
Expert witness (EW)

EW was not admitted into the case to testify on that part of the case

EW is not competent on this issue (if not their field), or statement outside of field of expertise
Civ Pro II Outline
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Page 27
Declarations/ Affidavits (getting in docs which are “hearsay”)
o Attorney Declaration:

“Attached as exhibit 4 is a true and correct copy of a letter….attached as exhibit 5 is Xs
statement authenticating…attached is exhibit 38 is a true and correct copy of the affidavit of Y”

Signed by attorney under oath
o Affadavits: like a declaration but for a TP

Use if you can’t find facts in your evidence (rogs, depo, etc.)

One kind of evidence in SJ that are susceptible to a little bit of hanky panky –
occasionally, ct will find affidavit that is out right fraud on the court bc they will
recognize you were one fact short and you got someone to sign s/t they shouldn’t be
signing

CIV CODE 437(C) (SJ) – what happens when affidavit that is problematic is presented to
ct, ct has the right to throw it out and impose sanctions

Evidence to support the missing facts so you can get SJ (discovery is cut off)

Note: Other side probably won’t let you get affidavits from their people (too late, should
have done during discovery)

BE CAREFUL when you do affidavits

Last sentence of affidavit says you are signing under penalty of perjury

lawyer authenticates affidavits in his declaration
Authentication
o If using a doc that needs to be authenticated, use depo, RFA, etc. to authenticate
o If you bring in briefs from another case, need to have it certified by the court that provided it
Depositions
o Copy of cover page of transcript
o Copy of the page(s) with the quote (and page bf or after if necessary to see it’s context)
o Reporter’s certification page (last page of the volume – reporter certifies that it is a legitimate
transcript)

Note: don’t always have to have certification page if you have previously made reference to the
volume and attached it
Rog Response:
o Caption page of Rog response
o Page that has the actual response
o Verification page “I, X, verify that all the responses to these Rogs are true and correct to my
own knowledge and information” (signed by person “responsible” for the response)
a. [Proposed] Order

Plug in statement of undisputed facts

On X date, the parties appeared bf me on the SJ of Y. The following undisputed facts were
demonstrated: (copy and paste undisputed facts)

Based on these undisputed fact, the ct finds as follows:
o SJ granted to P on his K claim on grounds…
o You’ll get back your proposed order but the Judge will cross out facts he thinks are disputed…

If ct not granting summary judgment, The Court Can Grant Summary “Adjudication”

“Lodge” a proposed order (separate from the rest of the stuff)
o remember caption page is different, don’t put in attorney info
o lodge = not officially in file, it’s a wish
o If judge agrees, crosses out “proposed” and it can go in file
b.
Evidentiary Objections CRC 343-345
EVIDENTIARY OBJECTIONS – one last chance
- New rule 3.1354 which says must be served and filed at the same time as the objecting
party’s opposition or reply papers are served and filed
- Some types of reasons evidence not good (rogs taken out of context)

Declarations – 2 ways to do it
- Standard way: “I make this declaration of my own personal knowledge”
- Way you should: paragraph that states what personal knowledge

Show why this person knows the info: “It happened on Wednesday. I know it was
Wednesday because that morning I looked at the NY times and the day was
Wednesday”
Civ Pro II Outline
Page 28
“I am in charge of the financial records for the company. And before the
declaration I checked the file and it said he owed X”
Evidentiary objections: challenge affidavit bc nothing that shows why she knows the facts “she
states she is in charge of the bookkeeping and he owes X”, but nothing that states why she knows
- Some judges will say you are probing too deeply
- Separate paragraph for each objection (comes with a caption page – Evidentiary Objectives
by X in opposition for P Y Summary Judgment motion…)
- Narrative:

In beginning of paragraph, cite to the page and the line

In 1-2 sentences, write what is wrong with the evidence


Civ Pro II Outline
2.
Page 29
DISPOSITIVE MOTIONS, PT. 2
(CAL. CODE CIV. PROC. § 437c) [Summary Judgment]

TIMING:
o SJ hearing: at least 30 days bf trial (don’t want to bring it too early bc you want to make sure you
have everything unless you have enough evidence already and the case doesn’t have much merit),
normally want to give yourself as much time, close to the deadline, want to give yourself enough time
to get info you need

NOTE: if judge moves trial date, timing based on new trial date

Note: trial date had been set at the case management conference (CMC)

Note: if date is a Saturday or Sunday, it has to be Friday (don’t forget holidays)
o SJ Motion filed and served  at least 75 days bf the hearing
o Opposition to SJ at least 14 days bf the hearing
o Reply to opposition  at least 5 days bf hearing
(CAL. R. OF CT. 342) [Summary Judgment]
o
FORMAT: 4 parts
o Motion & P&A
o Separate statement of facts
o Declaration
o Packet of evidence
Civ Pro II Outline
13.
Page 30
PREPPING FOR TRIAL
When waiting for SJ motion, must keep proceeding as if going to trial bc judge probably won’t make ruling until first
day of trial –

JUDGE HAS 30 DAYS TO RULE (this is frustrating bc you can’t stop trial preparation bc
ruling comes when trial is set to start)
a. Jury Instructions

Each side puts together their list of jury instructions, then you work together and decide if the lists
compare and make one common list of jury instructions, judge wants to get the agreed upon jury
instructions (look at old cases)

CA Civil Jury Instructions – reminds us you have to be careful every time you respond to a rog – is
there anyway that the way I’ve written it can be construed to mean something more, construed to
admitting s/m – once verification signed by client, you can’t come back and say I didn’t mean it that
way, can be used it against you
o
Jury INSTRUCTION NO. 2.07 : INTERROGATORIES - An interrogatory is a written question
asked by one party of another, who must answer it under oath in writing. You must consider
interrogatories and the answers thereto just as if the questions had been asked and answered here
in court.
o
Jury INSTRUCTION NO. 2.08: REQUESTS FOR ADMISSIONS - In this case the [plaintiff]
[defendant] served on the [defendant] [plaintiff] a written request to admit the truth of certain
facts. All facts which were expressly admitted by the [defendant] [plaintiff] or which [defendant]
[plaintiff] failed to deny must be accepted as conclusively proved.

Like form rogs – check out the ones that are pertinent (e.g., negligence, torts, etc.)

APPEAL – preserve objections of jury instructions for appeal, preserve “taking exception” to ruling

California Civil Jury Instructions 1.00; 1.00.5; 1.01; 1.02; 1.03; 1.10; 1.20

California Civil Jury Instructions 2.00- 2.62

California Civil Jury Instructions 3.00 – 3.16

California Civil Jury Instructions 4.00-4.45
b. Case Brief

Like reading a play bf watching it, tells the court everything that is going to happen, including facts
(both sides file together)

Both sides will file under seal appendix to case brief…secret stuff…you can’t advance secret stuff but
you can use to rebut other side (if you didn’t disclose in response to discovery, can’t disclose)… BUT can
use secret stuff if they never asked you about it (other side will argue that they did ask…junior
associate will be up all night long going through every depo and rog looking for where they asked about
it…)
c.
Final Status Conference

d. Motions in Limine

Certain evidence issues you don’t want the jury to hear about (you couldn’t stop the question earlier
during the depo, rogs, etc. bc “calculated to lead to the discovery of admissible evidence”)

ask the court to rule bf trial (e.g., eve bf trial), motion in limine to exclude “testimony of John Doe” or
“testimony of Jane Roe as pertains to this point of evidence” or asking ct for ruling to exclude any
photographs of the deceased

attorneys claiming evidence bound to lead to jurors being prejudiced

(READ HOMEWORK)
Civ Pro II Outline
14.
Page 31
FINAL REVIEW SESSION
[L.A. Super. Ct. Local Rules 7.9 and 7. 12]
LA Superior CT Local Rules: know local rules
never forget to check the local rules, s/t say the same thing as the CRC, but sometimes a little
different (e.g., 14pt v. 12 pt)
a lot of state laws permit easy deadlines, but LA can’t allow that, too much litigation (e.g., shorter
deadlines)
7.9: CASE MANAGEMENT CONFERENCE
within 180 days after complaint filed
7.9(b) – 30 days bf CMC everyone should talk on phone
by 15 days bf – file case management statement
7.9(d): SETTLEMENT CONFERENCE: judge may order whenever he feels like it
- each side has to send an attorney who (1) knows everything about the case and (2) has authority to settle (or
have client readily available)
- sanctions if you don’t meet rule
7.9(f) if there is a settlement, 5-day deadline to notify the court (otherwise sanctioned OSC re sanctions)
7.12: litigation conduct
- need to be ready to threaten opposing counsel, if you don’t stop doing X, have to bring a motion
(a)(1): supposed to give first requests for a continuance, even if opposing counsel denied yours
(a)(2): after first continuance, balance several factors bf giving additional (e.g., whether opposing counsel has given
to you in the past)
NOTE: if you give too many continuances, you lose the respect of the judge
(b) – service of papers should be done in far away, don’t disadvantage bc weekends and holidays
(c) – do not disparage the other side (especially opposing counsel – refer to client, not lawyer “Plaintiff’s continued
violation of the rules”, it is understood you are talking about the lawyer, but considered more elegant way of
attacking)
- should not disparage (insult) the intelligence, ethics, morals, integrity, behavior
- should be civil and courteous
(e) depositions:
(e)(8) – should never coach the person at a deposition
(e)(10) – counsel from all parties should refrain from self-serving speeches during deposition (don’t put on a show for
your client)
(f) Document demands – don’t ask for too many you don’t need, don’t produce in a jungled order, etc…
(g) Rogs should be used sparingly
Motion practice – convince judge you had a real meet & confer (if judge gets the impression that you could have
resolved the matter and didn’t need to bring the motion)
NOTE: hard to get lawyer on a few things, but if they act bad enough times, can site to local rules to get them under
control
Ex Parte – bring notification by 10am by day bf (in certain circumstances, if you show good reason why notice not
given, may be ok, e.g., show that you made every effort to get through to the other side bf 10am
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Page 32
(CAL. RULES OF COURT)
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




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Rule
Rule
Rule
Rule
Rule
Rule
Rule
Rule
Rule
Rule
Rule
Rule
Rule
Rule
Rule
201
201.5
201.7
201.8
212
227
311
312
313
325
326
329
335
376
379
Requirements for Papers
Papers Not Filed with the Court
Times and Deadlines
Case Cover Sheet
Case Management Conference
Sanctions
Law and Motion
Forms of Motions
Memoranda of Ps & As
Demurrers
Change of Venue
Motions to Strike
Discovery Motions
Motion to Be Relieved As Counsel
Ex Parte Applications