8/6/2015 3:08:00 PM

Alex Lake-Laubach
AAW Cal. Civ. Pro.
9/12/14

PERSONAL JURISDICTION
Traditional/ Long arm / General Jx
 Ways to have personal jurisdiction (Jx)
o Traditional ways to have Personal Jx
 Consent to the jurisdiction

Tag service
 -Served with summons and complaint while being physically
present in the forum state
 Domiciled
 -Resident of the forum state with no intent to move presently
 In Rem Jurisdiction
 -Have property in the forum and that property in in controversy
o Long Arm Statute
 -the state has Jx over nonresidents that do not offend the constitution.
o General Jx –Found in the Cornelison Case Two example cases –Perkins (all
administrative functions of Defendant corporation in Ca) and Konikilike
LM (abundant purchases, employees and business operations located in the
Forum)
 -General jx is for contacts that are unrelated to the cause of action
 Vons tells us what is NOT covered by general jurisdiction
 -Substantial, Continuous and Systematic Contacts with the Forum
 -Depends on the quality and nature of his activity in the forum
in relation to the particular cause of action
 -Action must arise out of an act done or transaction
consummated in the forum
 -The general is that the form state may not exercise jx over a
nonresident unless his relationship to that state is such as to
make the exercise of such jx reasonable.
o Constitution
 JX over nonresidents on any basis not inconsistent with the US
constitution or the California Constitution
Purposeful Availment: is when the D through his contacts with the forum state takes advantage
its benefits and protection.

 Stream of commerce/Hauling goods (Cornelison): providing services or conducting

substantial business transactions in the forum state (e.g., having driver license)
 Contracts/ Franchise (Vons): Parties reached out to the forum and created continuing
relationships and obligations with citizens of another state are subject to regulation
and sanctions in the other State for the consequences of their activities.
 Mailing (McGee): when marketing is targeted at citizens of the forum state
 Internet Marketing and Advertising (Snowney): interactive websites directed at
citizens of forum state that would elicit business and contact from those citizens
Nexus
 1. the relationship between the Dx’s activity with the forum and the Px’s cause of
action
o a. proximate cause too narrow
o b. actual cause too broad
 2. online advertising (Snowey)
o a. CA resident sues NV hotel in CA. false ads/breach of K
o b. NV hotel has no business/EEs in CA
o c. advertises heavily in CA
o d. website and toll free #
o e. Court: sufficient for nexus—advertising
 strongest nexus case of 3.
 3. interstate transportation
o a. CA resident sues NE resident for wrongful death in NV (CA)
o b. truck licensed to do business in CA
o c. truck traveling into CA
o d. 100+ business trips into CA
o e. delivered and received lading in CA
o f. Court: sufficient for nexus—business connections
 “very reason”
 more or less attenuated than Snowey
 4. franchise/contract
o a. illness/death from tainted meat in fast food
o b. cross complaints: Vons v Seabest over personal jx
o c. Court: sufficient nexus with K relationship/franchising
Fairness: “exercising jurisdiction over such person does not offend traditional notions of
fairplay and substantial justice.” Under this theory the court will weigh 5 factors. (Cornelison,
Vons)
 the 5 factors include
o Defendant’s burden to be subject to the states jurisdiction
 Ex: “Although the burdens on the D are inconsiderable, they are not as
to make litigation so greatly difficult and inconvenient. It would not be
a severe disadvantage for Seabest and WMRI in comparison to Vons”
Vons
 Corenlson there was no burden on the defendant because they had
already agreed to be a road team in Nevada so why not California?
o Interest of the forum state
 Ex: “California has an obvious and direct interest in protecting Vons
from injury and providing it a forum in which its claims for relief may
be adjudicated. Thus enabling the relief to which they are entitled.”
Vons
o Plaintiff’s interest in relief
 Ex: “Plaintiff, a California Resident, was a primary witness to the
accident and there was sufficient evidence in California as to
calculations of damages, lost wages, etc.” Cornelison
o Efficient administration of justice
 Ex: “Because California already has invested judicial resources in this
litigation…the additional interest of efficiency favor this state’s
exercise of jurisdiction.” Vons
o Shared interest of several states
 Ex: Based on the overwhelming interaction between Seabest and
WMRI through contractual relations and trips within the State of
California…this state is as suitable, if not more then any other.
 On exam: for analysis of DIPES factors always use the facts of the case to create
arguments for both sides… ultimately it is unlikely that the defendant will win these
factors (as we have seen in Cornelison and Vons) BUT this still scores points and is a
final way to scoop up points
Service of Process
 Individuals
o Best
  Personal delivery of summons+complaint= proper service at time of
delivery
o Second Best
 If no personal delivery despite “reasonable diligence”
 Must be done Where?
 Person’s dwelling house
 Usual abode
 Usual business
 Usual mailing address
o No US PO boxes
 Must be done to Who?
 Competent member of household
o Or person apparently in charge of the address
 At least 18
 How must it be done?
 Leave copy of process [S&C]+inform person what’s
inside, and;
 Mail S+C to same address as person being served
 Service is not complete until 10 days after mailing
Ex: Espindola was an example of substitute personal service
under 415.20
Note: Defendant can’t set up barriers. Running away, not
answering door, misidentifying themselves, etc.
o Corporations
 Best [personal service on corporations 416.10]
 416.10
 Who
o Designated as agent for service of process, or;
o One of various officers
 Prez, CEO, Treasurer, CFO or otherwise
authorized
 Worst [substitute service on Corporations 415.20 (a)]
 Where?
 At office, or;
o During office hours
 Usual mailing address
  With Whom?
 Person in charge, 18, and knows contents
 How
 Leave with person at that place
 First-class Mail to that person at that address
 Worstest
 Mailing [415.30]
o What?
 2 copies Summons +Complaint
 receipt of acknowledgement of receipt of
summons
o How
 Notice informs D that if D does not
return acknowledgement to P wi/I 20
days, then D must pay reasonable
expenses of service by another means
 Publication [4515.50]
o Must first
 Get leave of the court
Have used reasonable, unsuccessful
diligence
o Only used if:
 D’s whereabouts are unknown OR
 D has evaded service
o What?
 Summons
o Where?
 Circulation newspaper most likely to
give D notice
o When?
 Weekly for 4 weeks
o How?
 Published, and THEN service is
complete 28 days after 1st publication
day
 5 w’s
 o who, what, when
 who[414.10]
 1. 18
 2. Non-party
 What
 Summons
 Notice of lawsuit [English/Spanish]
 Deadline
o Tells D to respond w/I 30 days or default
judgjment
 Suggestion to seek counsel
 Copy of complaint
 When
 Within 3 years after action commenced
 where/on whom/how

Appearance
 General Appearance
o ADSTRAP
 Answers
 Demurs
 Strike
 Transfer
 Reclassify
 What type of civil case
 Attorney gives notice
 If attorney shows up it counts like P did
 P gets written notice
 Special Appearance
o Options
 To quash service of summons for lack of JX
 To stay or dismiss COA due to inconvenient forum
o Alternative appearances
 Can make special appearance and file motion to fight complaint
 answer, demure, or move to strike
 Venue
 o Proper trial [Superior in CA] court
o Where is venue proper?
 Depends on the type of case
 RP-related [real property] actions= Local actions
 Everything else= Transitory actions
 Default rule
 Where D’s reside [at commencement of action]
 Real Property
 Where property is
 Personal injury/wrongful death
 Where injury occurs, D’s residence at commencement
 Divorce
 Residency of either [3 mo rule]
 Annulment/Separation
 Residence of either
 Child support
 Child’s residence
 Contract
 Where K to be performed
 Where K entered into
 D residence
 County where obligation to perform
 Out of Stat/Unknown county Defendant
 Any county P wants
 If D about to leave state
 Either residence or if service is made
 Corporate/association D
 Where K is made/to be performed; or
 Where obligation/liability arises; or
 Where breach occurs; or
 PPB of Corporation
o Main Relief Rule
 One COA+More than one type of relief
 One local, one transitory
 Ex: negligence and breach of contract
 Transfer
 o Note: cannot lose based on improper venue
o Court can move you, if: CICEND
 Complaint venue improper
 Impartial trial cannot be held
 Convenience of parties+witnesses
 Ends of justice promoted
 No judge qualified to act
 Divorce lives in another county
 Foundation Engineers
o COA
 Negligence
o COA classification? [local, transitory, or mixed]
 Local - Offices didn’t plead breach of K
 Forum Non Conveniens
o Better place to try case
 Another forum with JX
 No statute of limitations bar
 Exception: No remedy in another place [totalitarian]
o 2 Statutory mechanisms
Substanial justice
 Party or court can motion
 D cannot file after demurer or motion to strike
 Inconvenient forum
 Only for D
 Must be done within time to plead
o Two part test
 First part elemental [must have all]
 Second part is balancing test [no absolute]
o STEPS
 Step 1
 Step 2
 After weighing privat and public interests, should current
forum retain
 Do private factors weigh in favor?
o Access to proof
o Cost of witness attendance
 o Availability of compelling witnesses to come if
they are unwilling
 Do public interest factors weigh in favor?
o Overburdening local courts
o Protecting jurors
o Interests of CA and alternative JX
 NOTE* When discussing possible forums, use the runner-up [2nd best] forum to
weaken an argument
Complaints
 Pre assessment
o PACER
 Professionals
 Allege Conspiracy
 Employment
 Repeat
Note* The FANCIER someone is the MORE screening will be done before
you can sue
 Pre-filing Notice
o Whistleblowers [state employees]
 UC consideration if UC employee
 State Personnel Board consideration if State case


o Med mal [MICRA]
 Goals
 Prevent medical malpractice lawsuits
 Gives time to settle outside of court
 Screens out frivolous claims
 Noncomplying attorneys WILL be sanctioned
 SOL consideration
 CCP 364
 If you barely file within 90 days of SOL you get a 90
day extension
 Multiple choice question most likely
 Wurts
  Just because you make one [for tort in this case] does not mean
it covers both claims you have
 Compare
 City of Stockton
o P argues Breach of K is not covered by prefiling
requirements
o Court disagrees
 Court can read pre-filing requirements
VERY BROADLY
 Complaints standard
o Federal
 Short, plain statement of the claim
 Twombly: need grounds, circumstances, occurences, and events, not
labels and conclusions
 Iqbal: Need a “plausible claim for relief”
o State [default rule]
 “Fact” [“code”] pleading 425.10
 “Statement of the facts constituting COA, in ordinary and
concise language”
 explanation: If you’re fact pleading you must allege one
fact per element of each theory of liability
 Some require more particularity
 Fraud
 Must allege elements of fraud
 Each element must have facts [not just one]
 No benefit of the doubt

 Statutory

E.g. Tort Claims Act
o Easy to spot on essays because they must give
you the statute
o It will most likely not give enough particularity
o Look for capital letters and section numbers
o Complaint and Form pleading
 Incorporation by reference
 I don’t know but they do
  DOT case
 Suing gov’t
 Note: notice of claim issue may apply
 Judge says form complaint can’t be demurred -->WRONG


 Torts&Contracts?
o Will bleed into the civ pro questions on the bar
o You will have to recognize an element is missing in the complaint
Responses
 Special Demurrer
o CAMOS
 Lack of legal Capacity to sue
 Another Action
 Defect or Misjoinder
 Failure to disclose if Oral or written K
o When can you file?
 Unlimted civil cases
 Not allowed in limited
 Pleaded as affirmative defenses
o Note
 Judicial notice
 Adds facts not in complaint or answer that court should notice
 self evident- state law, federal law, official gov acts
 Not evident- AOIs, fictitious names, campaign
disclosures, other briefs
 If court takes JN of something it does not concede it is
true

 Motions to Strike
o Remove something you don’t like [irrelevant/improper] from a pleading
 Grounds for striking must be apparent
 Common example: punitive damages for breach of K
o Not one-size fits all
 ADR cert, court pre-conspiracy claim, sexual abuse proceeding,
certificate of review pre-building malpractice
  Anti-SLAPP has its own set of code in the CCCP
 Judgment on the Pleadings
o Deals with complaint answer and demurrer

o For P
 Complaint states facts sufficient for coa AND
 Answer does not state facts sufficient for defense
o For D
 Court lacks SM JXN OR
 Complaint [still] does not state facts sufficient for COA
o How made
 By party or by court

 Motion Practice
o Remember
 Pleadings- allege COAs or defenses
 Motions- seek court orders
o Note
 Demurrers are pleadings which are treated as motions
o Parts
 Notice
 When, what [grounds], what [papers on which it’s based]
 Motion itself
 Memo of points and authorities in support of motion [MOPA]
 If opposing a motion must file own MOPA
 Movant can reply back to opponent’s MOPA
o Logistical details
 Can file separately or combine
 Can include evidential declarations
o Try to settle or else
 Parties should meet before filing motion to try and resolve
 Otherwise, movant arranges time+date
 Deadline
 16 days before hearing
 exception: 75 days for motion for summary judgment
 augmentation: if served by mail 5-10-20 rules
 o CA res: 5 days Non CA res:10 Non USA: 20
 Reduction: If exigent circumstances you can obtain
court order to shorten time.
o From tentative to final
 Day before motion judge issues tentative ruling
 Tentative ruling becomes final unless loser asks for oral argument
o Explain final thought
 Not needed for motions
 Judge does not need to explain motion ruling
 Exception based on balancing test
 Importance v effective appellate review factors
 Summary judgment is a common one
Answers
 Basic requirements
o 30 days to respond
o Answer = general appearance = PJ found w/o motion to quash service
 Basic content [general and specific denials]
o Must admit or deny
 Non-denial = admission
o General denial
 1 sentence denial of allegations [denies all 1-x]
 Advantec
 General denials are powerful
 Judgment for nonsuit definition ????
 JMOL [Judgment as matter of law]
 Bigger universe than MSJ smaller that JMOL

o Specific denial
Commonly plead paragraph by paragraph, in respons to verified
complaints
o Affirmative defenses [Yes, but]
 Even if all elements of complaint needed to prevail are plead
something independent allows an escape from liability [statue of
limitations, assumption of risk]
 Affirmative defenses add new matter to issues
 Ex: Compartive negligence, preclusion
  Reminder
 Contradicting issues in omplaint- answer/ adding new ones =
AD
 ADs have “facts sufficient to” standard
 General rule= D must plead to avoid waiver of new matters,
except ones always on table like sovereign immunity
Statue of Limitations
 Defined
o Perscribe period of time in which P can bring COA
o Asserted as Affirmative defense by D
o Policies repose versus dispose
o Impact missing SOL kills lawyers more than any other malpractice claim
 Concepts+Deadlines
o Accrual
 SOL begins to run when COA accrues
 Happens when P suffered actual/appreciable harm
 Clock starts when last element is satisfied
 Courts look at occurrence of particular event
o General deadlines concepts
 Always label SOL for each COA
 If conflicting the more specific one controls
 Discovery
o Definition
 Point when P reasonably could have discovered the injury and its
cause
 Constructive or actual awareness- when you have knowledge that
could reasonably be discovered through investigation of sources open
to him or her
 SOL begins to run from date of awareness
o Step 1
 Identify possible accrual dates
o Jolly case
 Jolly in 1972 found out mom took drugs [DES] while pregnant which
harmed her, couldn’t find out manufacturer
 1978 Jolly aware of one or more other lawsuits re: DES
 1980 Sindell- market share causation/liability
 o Step 2
 Narrow down and explain
 1978 Jolly should have filed complaint against all
manufactures and then amend after discovering proper D
o Step 3
 Sort through tolling arguments
o Closing notes on Discovery
 P need not know legal significance of facts suggesting wrongdoing
 Clock starts when suspect facts are gotten
 If you have bad advice from a lawyer sue the lawyer
 D must plead SOL as affirmative dfense
 Must prove discovery rule overrides accrual rule
 Statutes of Repose
o Definition
 Bar on all suits brought more than a specific period oafter the date of
MANUFACTURE
 NOT date of injury
 Like a warranty
 On EXAM: watch out for multiple possible SOLs
 Tolling
o Definition
 Stops appropriate SOL/repose
 Stops running during tolling event
 Once event ends clock starts again
o All-purpose tolling statutes
 CA resident out of state
 Minority[age], insanity
 State of war
 Med mal foreign object, continuing representation
o Statutory tolling cont
 Special legislative extensions of SOLs
 For accrued actions not time-barred of effective date of
amended statute
 Revival of lapsed CIVIL claims
 No revival of criminal claims
o Equitable Tolling
  Jude-made doctrine- outside of statute
 Extend SOL for fairness
 Injustice to P
 Effect of important public interest expressed by SOL
 Exam questions will usually be about preventing perpetual
liability
 How pled and proven [black-letter law]
 Timely notice to D in filing claim
 No prejudice to D to make him gather evidence to defend
against claim two
 Good faith and reasonably conducted yourself in filing claim 2
 Impact
 Tolling occurs during event [clock stopped]
 However statutes:
 Can preclude equitable tolling
 using express language
 or if the equitable tolling is inconsistent with text of
statute
o Equitable estoppel
AFTER SOL has run
Party estopped from asserting SOL/SOR as defense if
Party’s conduct has induced another into postponing lawsuit within
SOL/SOR
o LANTZY
 Step 1
 Locate statutes, assume conflicts between them
 Construction-10 yrs Real Prop- 3 years
 Is P’s claim barred by any of the SOLs?
 Construction 10 year
 Determine which statute is appropriate
 Construction 10-year
 Determine if statutory tolling applies
 No statutory tolling
 Determine if equitable tolling/estoppel applies to give P extra
time needed to avoid a bar
 Court says yes, promise of repair induced
 o Look at statute- exemptions for a bunch of
things not including Lantzy’s claim
 i.e the court specifically did not want
people getting around SOL for any
reason not in the SOL
o Other argument is policy
 Cross-Complaint
o General concepts
 Without having to file a separate action
 3 basic types
 D v. P
 D1 v D2
 D v someone not yet named
 What’s in them
 Subject matter doesn’t matter in regard to original complaint
 Compulsory: RELATED cause of action MUST be plead
 Preclusion- consequence of not filing compulsory
cross-complaint
o Sufficiently related requirement
 Align Technology
 Locate the defective cross-complaint
 Suit 1
o Complaint: Align v. everyone+ T for breach of
K
o Cross-complaint: T v. Align FOR wrongful
termination, breach of K
o Answer to cross-complaint: Align v T denying
T’s claims
o Disposition: Settlement and dismissal
 Suit 2
o Complaint: Align v. T For breach of fiduciary
duties, loyalty, conversion
o Demurrer: Tran v Align for barred action
 T says this suit should have been
COMPULSORILY claimed in Suit 1’s
answer to the cross-complaint
  But were the two related?
 Are the cross-complaint and suit 2 related?
 What we learned
 File ALL potential cross-complaints
 D’s don’t sweat declaratory relief
 . . . or interpleader
 . . . or if they don’t respond to the complaint at all
 Cross-complaints and 3rd Parties
 Permissive: doesn’t have to be in this law suit but if you want it
to be included it must arise from same CTO as orginal action
OR it must arise out of the same property or controversy
 Never compulsory- you are free to create a new action
 Why do this?
o Indemnity
 We had a deal, you [D2] were to pay not
me.
o Contribution
 You [D2] have to pay up
o Amendment
 Why do them
 Cure pleading defect
 Add theory of liability or defense
 Add party
 When do they happen
 Back to the drawing board, your honor
 Always requested as courtesy upon new information being
learned
 When are they allowed as a right
 Before answer or demurrer, or;
 After demurrer and before trial of the issue of law thereon [the
hearing on the demurrer]
 When will court permit them upon request?
 Justice
 Avoide forgeiture of COA assuming good faith
 Absent unwarranted delay by amending party
 Court may stick you with the other parties costs
  Consequence to expired time to amend: dismissal
[usually with prejudice]
 Logistics
 Amended pleading+proof of service+file with clerk+serve
copies on opponent
 Amended complaint – D gets 30 days to answer
 Amended answer – P gets 10 days to demur
 Sham pleading prohibition
 P can’t amend complaints, without explanation, to avoid
attacks raised in demurrers, MTs
 Plead wisely
o Realtion back
 Amendments won’t fix
 Daveloo
 Lack of specific Ds
 Lack of
 Fuller
 Won’t allow adding Gov’t Does to overcome statute of
limitations
 P doesn’t have duty to investigate- just needs to tell and
allege
 Requirements
 Rest on same general facts
 Involve same injury, AND
 Refer to same instrumentality, as claims in original
pleading
o Doe parties
 Amendments can add new Ds+Ps
 Can’t be imposition of greater liability for new P
 Must state ignorance as to name of new D in complaint
 No unreasonable delay [w/prejudice element]
 Do pleading related back IF truly didn’t know D’s name
 Cannot change to doe party after 6 months of
 No P unreasonable delay/prejudice to D
o Frivolous Pleading
 Vexatious Litigants
  Begin and lose 5 cases in 7 years
 Repeatedly tries to relitigate lost matters
 Repeatedly files unmeritorious motions
 Once litigant declared vexatious
 Court must decide reasonable probability that VL can win
 If so, court can require VL to post bond
 Generally
 Court can always order sanctions etc for non-meritorious, or
harassing activity
 Sanctions
 Attorney signature on all court documents ensures
 Anti-SLAPP
 Defining- Strategic Lawsuit Against Public Participation
 Explaining
o Step 1- someone talks shit
o Step 2 sue shit talker
o Step 3 rely on bad publicity and mounting
defense costs to force them to stop
 Why not? Isn’t that defamation?
o Hard to prove damages
 CA’s definition
o 1. Any written or oral statement made before a
legislative, executive, or judicial proceeding, or
any other official proceding authorized by law.
o 2. Any written or oral statement made in
connection with an issue under consideration or
review by leg, exec, or judicial proceeding, or
any other official proceeding authorized by law.
o 3. Any written or oral statement in a place open
to public or a public forum in connection with
an issue of public interest
o 4. Any other conduct in furtherance of the
exerceise of the constitutional right of tpetition
or the constitutional right of free speech in
connection with a public issue or public interest.
 Making SLAPP motion [SPECIAL motion to strike]
  Generally
o D makes prima facie case that suit arose from
constitutional protected activity.
o If D wins P must establish a probability of
prevailing on the merits
 Technicalities
o Brought within 60 days
o Stays all discovery
o Motion is immediately appealable
o Winner can get fees and costs
 Exceptions to Anti-SLAPP
 Public interest
o P does not seek relief greater than relief sought
by general public or class
o Action enforces important public right or
confers significant benefit on public; AND
o Private enforcement is necessary and places
significant burden on the p
 Commercial speech
o Suit against D that sells or leases goods
o Statement or conduct is representation of fact
about D’s or competitor’s business
o Statement occurred in connection with a
commercial transaction; AND
o Intended audience is a customer or person likely
to influence a customer
 SLAPPbacks
o Sounds like malicious prosecution
o Arises from previous lawsuit dismissed pursuant
to an anti-SLAPP motion
 D who prevailed on anti-SLAPP motion
may SLAPPback former P to revocer
dmgs beyond fees and costs
 P can anti-SLAPP in response but does
not get as many procedural protections
Discovery
 Protection
o Right to privacy
3 part test for privacy violations
 1. Posess legally protected privacy interest
 2. REP under circumstances
 3. Serious invasion of privacy
 Pioneer v Superior Court
 Consumer complainers have no privacy interest, no REP, and it
asking for names, addresses, and phone numbers is not
“serious”.
 Tien v Superior court
 Potential class members/employees had privacy interest from
boss finding out if they contacted attorney regarding suit, REP,
revealing their names could get them fired [thus serious]
o Privilege
 Absolute
 Doctor
 Attorney
 Client gives up
 Attorney-client v work product
o WP-
 Absolute
 Impressions
 Opinions
 Legal research
 Theories
 Qualified
 Any other work done by attorney
 Not protected when
 Attorney’s advice being used to
further crim/fraud
 Disciplinary/malpractice
 Denial will unfairyly prejudice
other party or will result in an
injustice
 Qualified
  Trade secrets
 Police personnel files
 Work product
 Hernandez v Superior Court
 Existence of docs NOT privileged, only content
 Rico v Mitsubishi
 How do we prevent carelessness?
 If we inadvertently discover ?
o Stop reading
o Give it back
 Exposure
o Is not enough
 County of La v Superior Court
 Experts who terminate their relationship are work-product
protected and treated as discarded legal theories
 Not a burden put on expert, attorneys are held accountable
 Careless attorney is protected by work-product and privilege
 Business records
 Is it made in anticipation of litigation or regular course of
business?
 Mixed-use
 Predominant factor test
o Litigation substantial factor in creating it?
o Is WPD policy served by protecting it?
 Waiving privilege
 How?
 Uncoerced disclosure
 Intentional consent to disclosure by 3rd party
 Jasmine networks
 No intent required for holder, just no coercion
 Economic litigation
 Goal
 Reduce litigation expenses for cases <25k
 Rules
 No special demurrers
  MTS only if damages/relief not supported by
complaints allegations
 Plaintiffs can serve limited case questionnaires [if they
fill out theirs first]
o Non-compliance- issue,evidence, or termination
sanction
o 1 deposition per slide
o can sub oral wintess with afadavit
 Discovery devices
 List
 Interrogatories
o What?
 Written questions asked by one party of
another
o 2 types
 form
 Can ask unlimited
 Special
 Created by party

35 freebies

No subparts, no compound/alt
?’s, no extrinsic references
o How to respond
 Answer
 Reasonably available info+
signed under oath
 Objection
 Must raise or waived
 Option to produce
o When to respond
 30 days served response
 untimely response=waive objections
o Sinaiko
 Serving untimely response, even in good
faith and before motion to compel “piles
it on”, doesn’t mean court can’t grant
 motion to compel (and also sanction) in
its discretion
 Depositions
o What?
 Permist party to obtain pretrial
testimony of individual under
oath
o Why?
 Evaluate demeanor, solicit
spontaneous responses
 Can be oral or written
o Notice requirement
 When
 10+days before depo
 requires:
 appearance+requested
docs
 unless deponent
 seeks protective order or
serves timely objections
 Corporation
 Serve with description of
matters
 Entity designates
deposeee
 Can serve officer, director,
managing
 Limit on number
 1 per person
o Oral deposition
 Deponent
 Answer from personal
knowledge
 Not required to consult
extrinsic sources
 All parties
  Can attend/ask questions
o Objections
 Narrow
 Properly raised or waived
 Can also
 Suspend depo
 Limit depo
 Move to compel
o Non parties
 Subpoenad
 Can require oral
testimony, records only,
or both
 How challenged –
objections, motion to
quash, motion to modify,
protective order
 Special rules /protections
to subpoena personal
consumer or employee
records
 Only use for impeachment
purposes
o Written depositions
 Notice attaches written ?s
o Maldonado
 Who is seeking/resisting?
 Indiv or corporation
 Whats being requested?

 Who is the twit?
 Does she have an excuse?
 What happened here:
 Witness hardship,
bankruptcy, re-org
  fresh meat witness [has
no idea what happened in
past at Company]
 twit-like behavior- did not
bring documents+did not
know anything
 What to fight over?
 She should not have been
designated to be deposed
 But company not required
to find old employees,
must be current
employees
 She didn’t bring
documents
 Physical+Mental Examinations
o Generally
 Allowed if “in controversy”
 Pleadins allege physical or
emotional injuries; or
 Discovery reveals
condition irrelevant
o Formalities
 Who/what/where
 Licensed physician
 No painful, protracted, or
intrusive
 Within 75 miles of P
residence
 When
 Response to request
served within 20 days
 Untimely response waives
objections
 How responded
 Comply in full
  Comply conditionally
 Refusal because ____.
o Court-ordered PE
 Physical exam of P
 More than 1 requested?
 Requires good cause and
courts leave
 Mental examination
 Always required court
order+good cause
 How avoided
 No mental or emotional
injuries beyond those
physical ones claimed
 No expert testimony
 Examinee
 May request attorney and
court reporter to attend
 Attorneys
 Do not attend mental
examination, subject to
discretion
 Examinee may record
mental exam
 Vinson
o Mental exam allowed
 But, Past sexual history not
found relevant
 Could not get presence of
counsel for exam
Inspections [discovery devices cont’d . . ]
 Definition
o Party demanding to inspect document, tangible thing, or land
of another party
 Requirements
 o Description of each item or reasonably particular
categorization of it
o Time for inspection- at least 30 days after service of demand
 Response options
o Agreement to compluy
o Inability to comply
o Objections
 Same as interrogatories for protective orders
 Privilege, work product, burdensome, oppressive
 If not timely raised they are waived
 Standish case- trade secrets privilege not timely
asserted therefore they waived privilege
 Nonparties
o Can request documents and business records from nonparty
deponent
o Writings of expert
o Subpoena for personal record of consumer
o Subpoena for employment record
o Note:this is the practical supplement to the subpoena
deposition process
Request for admissions
 Definitioon
o Written responses from another party
 admitting or denying
 truth of facts and other matters
 OR the genuineness of documents
o Impact: binding against responding party
 How made
o Judicial council form; or Specially drafted one
o Time requirements
 Respons within 30 days of service
o Numerical limits
 Genuineness of documents-unlimited
 Truth of matters- 35 max
 Declaration for additional discovery served with
RFA ; or
  Parties so stipulate
o Same restrictions as interrogatories
 No huge questions
 No subparts
 Conjunctive/disjunctive
 Sanctions
o Consequences for not timely admitting or denying
 Automatically admit
 Sanctions are harsh
 Amending/withdrawing [without sanctions]
o Excusable neglect
 Not until paramedics deposed few months later they
found the bag was identified as different
o Does not substantially prejudice opposing party
 P would have pursued discovery of the conditions of the
supermarket aisle and failed to explain what additional
discovery they would have pursued absent the
admission
o Court may allow additional discovery and require party to pay
for it as sanction [court is trying to prevent sandbagging]
 E-discovery
o Only by court order
o Requirements
 No undue burden or expense to party opponent
o Seeker may have to pay
 Toshiba case
 Responding party bears cost of preparing
response
 Responding party “at reasonable expense of the
demanding party” shall translate any data
compilations into a reasonably usable form
 Meet and confer urged to help court find out
reasonable costs
Expert witnesses
 County of LA
o Opion and work product of expert ‘consultants’
 Generally
o Party demands written exchange of expert witness list,
which obligates all others to exchange (§ 2034.260(a)
o Can request name and address of experts
o Can obtain declarations and discoverable writings
 How requested
o Timing
 Must contain date of exchange
 Making demand deadline
 10 days after setting of ITD or 70 days before
ITD, whichever is later
 Making Exchange dealing
 50 days before ITD or 20 days after service of
demand of expert disclosure, whichever is sooner,
absent court order
 How disclosed
o Declaration signed by attorney for party designating expert
o Attestation of expertise
 Statement of qualifications
 Statement of general substance
 Representation expert is familiar with pending action to
submit deposition
 Supplementing
o EW on subject not addressed on other parties list, may
supplement
o Party may move to augment to add subsequently retained EW
or amed EW declaration regarding substance expected to give
o Standard
 Only if other party would not be prejudiced
 Moving pary’s failure due to excusable neglect
 Prevents sandbagging
 Leave to amend as far as expert goes allos party to
immediately depose expert
 Bonds case-
  not met here- declaration: he talks about
damages/trial [last day]: he talks about standard
of care
 would have asked different questions if he knew
his adversary would be a standard of care expert
and not just a damages one
 Penalties
o For exchange noncompliance= exclude the EW testimony
o Same for EW who goes crazy at trial
Conflict of interests
o Fact pattern
 Expert consulted but unretained by party
 Expert dismissed by party
 Expert hired by opponent
o If experty actually possesses confidential info obtained during
work with party 1, may be DQ’d [not potential]
Supplemental Discovery
 NO continuing obligation to automatically update any previous
discovery responses true and correct
o Biles case
 Only willful falseness/refraining to state updates is
punishable
 Suplementing an interrogatory
o Supplemental interrogatories allowed to obtain info post-
original ones [do not count against limit]
o May be served twice before initial setting of trial date, and
once after it
 Extra rules for punitive damages
o Financial condition discovery for D’s when punitives sought,
by court order only [requires “very likely to prevail” finding]
Oversight of Discovery
 Golden rule
o Courts don’t like it if you didn’t try to work it out yourself
 Move for order to compel response
o Resistor has: been untimely or sent an unverified respons
 o If granted, all objections waived, unless respondent requrest
relief by substantially complying with discovery request by
statute and failure due to excusable neglect
o Note: no meet and confer needed if other party didn’t
respond on time or didn’t verify response
 Move for order to compel further response
o Resistor was incomplete, evasive, improper, using unfounded
objections
o Seeker can request ruther response
 Must file separate statement that places all of disputed
socvery junk in one place
 Must seek within 45 days of resistors challenge
 Must have already met and conferred
 Defense wins? The protective order
o Burden, expense, or intrusiveness outweighs likelihood of
discovering admissible evidence
 Standish
 Trade secrete burden D v public health relevance
P since privilege not absolute. Note can be made
after document is produced
 Can still hand over documents to comply
 How?
o Hand documents over but reserve
right to object on privilege grounds
o Discovery sought is cumulative, duplicative, unduly
burdensome, expensive, or obtainable from another source
o Protect against annoyance, harassment, or oppression
o Meet and confer requirement prior to ANY motion for
protective order
Sanctions
 For noncompliance with order compelling response/further response
 As well as misuse- raising/making unmeritorious objections,
motions to compel, not meeting and conferring
 Purpose- return non-sanctioned party to position absent misuse
 Escalation series
o Money
  “Shall” absent Substantial Justification or Injustice
o Issue
o Evidence
o Termination
o Contempt
Ending discovery
 End dates tied to Initial Trial Date [ITD]
o Wrap up 30 days before
o Motions regarding discovery 15 days before

Continuing or postponing trial date doesn’t extend time for
completing discovery absent court order reopening it
 Mistrial, new trial, reversal on appeal ALL reopen discovery with
new deadlines based on new ITD
Summary Judgment
 Entering SJ
o (1) Entering summary judgment
 (a) Detailed order must set out reasons for ruling and
refer specifically to supporting and opposing evidence
on motion
o (2) Appeal
 Entry of summary judgment may be reviewed by COA
as final appealable judgment- no more trial necessary
 Entry of nonfinal order denying summary judgment
upon petition for extraordinary writ (see later)
 Not final therefore not appealable
 Extraordinary writ
Appeal
 (A) Basic Principles
o (1) No constitutional right to appeal – only statutory rights
o (2) Two “universes” of appeal
 (a) Appeal
 (i) (One) final order
 (ii) Collateral order
 (iii) Interlocutory order
 an appealable interlocutory order
 (b) Discretionary extraordinary writ
 sits outside of appealable things but must be fixed
NOW
 Courts do not like that
o (3) Presumptions/burdens
 (a) Trial court’s judgment/order presumed correct;
ambiguities in favor of affirming
 (b) Appellant must demonstrate prejudicial error
through record
 (i) Untimely/improper absent objections hurt
appellant
 (ii) Appellant can’t raise matters before COA not
included and preserved in it
o (4) Options for appellate court
 (a) Typical affirm, reverse, or modify (part or whole)
 (b) Direct proper judgment or order to be entered
 (c) Order new trial or further proceedings
 (B) Appeal by (one) Final Order
o (1) Appeal may be taken from a judgment = the final
determination of the rights of the parties in an action or
proceeding (CCP § § 577, 904.1(a))
 there are cases with more than 1 final order. In these
cases
o (2) “Final” = terminates litigation between parties on merits
AND leaves nothing to be done but to enforce by execution
(by content and effect)
o (3) Exceptions
 (a) Judgment final as to party – party can appeal
even if further proceedings pending against other
parties
 (b) Multiple causes of action – general rule – no appeal
until all COAs determined (Morehart)
 (i) 5 COAs in Morehart – (1) writ, (2) damages
(common law), (3) damages (constitutional law),
(4) declaratory relief, (5) injunction
  (ii) Separated into two chunks (1/4/5 and 2/3).
The 1/4/5 chunk is decided first, and D wants to
appeal now.
 (iii) Schonfeld rule – if issues ordered to be tried
separately by TC AND perceived by COA as
separate and independent from issues remaining
to be decided, then the separate chunk is
appealable
 (b) Multiple causes of action – general rule – no appeal
until all COAs determined (Morehart) (cont’d)
 (iv) But the court throws out Schonfeld. Why?
 If you’re aching right now and worried
about appealing non-final stuff, then you
have a petition for a writ available.
 You need not ache now because CCP § §
904.1/906 allow you to seek review from
the final judgment.
 (C) Appeal by Collateral Order
o (1) Elements
(a) Matter is truly collateral to merits of litigation
 (i) Collateral = distinct from subject matter or
merits
 (ii) Collateral ≠ necessary step in determining
merits of case
 (b) Final order as to collateral matter AND
 (c) Directs the payment of money by the appellant or
the performance of an act by or against the appellant
o (2) What the @#$% does collateral look like?
 (a) Easy examples:
 (i) Final order requiring payment of attorney’s or
arbitrator’s fees
 (ii) Ordering payment of creditor’s lien
 (iii) Directing the sealing or unsealing of court
filings
 (iv) Order disqualifying attorneys from
representation (Meehan)
  (b) Tougher examples – things that “sound like”
nonappealable interlocutory orders (see later)
 (i) Muller – are motions for sanctions collateral
orders? Yes. Too important to be denied review,
especially if no new trial/no judgment
materializes. Payment/performance not as
important
 (D) Appeal by Interlocutory Order
o (1) So it’s not final, and it’s not a side issue, meaning it’s
interlocutory, right?
 (a) First things first: interlocutory = non-final
 (b) General rule – not all interlocutory orders can be
appealed
o (2) So which interlocutory orders CAN be appealed? Not
many. (CCP § 904.1)
 (a) Order made after an appealable judgment has been
entered
 (b) Order granting a motion to quash service of
summons
 (c) Order to stay/dismiss action on grounds of forum
non
 (d) Order granting new trial or denying motion from
JNOV
 (e) Order granting/refusing an injunction
 (f) IJ directing a partition
 (g) IJ or order for payment of monetary sanctions >
$5K
 (h) Order granting/denying anti-SLAPP motion
o (3) Roden as case illustration
 (a) History:
 (i) Round 1 – Roden (P) beats Bergen (D) on
merits – judgment/order
 (ii) Round 2 – Roden served Bergen with post-
judgment request for production of documents to
help him determine benefits. Bergen refuses.
 Roden moves to compel, granted, so ordered.
Bergen appeals from motion to compel.
 (b) Black-letter law for appealing postjudgment orders
 (i) Underlying trial court judgment is appealable
(yes)
 (ii) Issues raised by appeal from order must be
different from those arising from an appeal of the
judgment (no problemo here)
 (iii) Order must either affect the judgment or
relate to it by enforcing it or staying its execution)
(problem?)
 (c) Enforce or stay? No …
 Granting of motion to compel (hey employer,
cough up the records), makes no final
determination – it’s preparatory to alter ruling
(here’s what you do get)
 Appeal once discovery is done and you determine
what Roden gets
 (E) Extraordinary Writs
o (1) Where your mind should go if you can’t appeal. But first
things, first …
 (a) Writ = directive issued by appellate court to lower
tribunal, ordering it to:
 (i) Take action (mandate) (CCP § 1085) [not on
test]
 (ii) Not take action (prohibition (CCP § 1102) [not
on test]
 (b) Peremptory v. alternative
 (i) Peremptory = direct order to lower court to
grant relief.
 First instance issuance if entitlement to
relief “so obvious” oral argument wouldn’t
be useful.
 But generally, court will seek written
opposition.
 (ii) Alternative = direct order to lower court to
grant relief OR show cause why act should not be
performed
o (2) Standard for granting writs
 (a) No plain, speedy, and adequate appellate remedy
 Remedy of direct appeal not available OR
 Hardship or unusual circumstances make review
by direct appeal inadequate
 AND
 (b) Petitioner will suffer irreparable harm if writ petition
is denied
 Significant and irremediable damage or injury
o (3) Bad appeal, good writ?
 (a) If purported appeal involves unusual circumstances,
matters of public importance, and/or issues of first
impression, COA may choose to treat bad appeal as
petition for writ
 (b) If COA confused on whether something is
appealable AND merits of issues already briefed (such
that waiting would not serve judicial economy)
 (F) Standing
o (1) Aggrieved party only
 (a) Party of record in TC [trial court]
 (b) Party also equals non-named-in-TC party who might
be bound under claim preclusion
 (c) Aggrieved = immediate, pecuniary, and substantial
rights or interests are injuriously affected by the
judgment
 (i) Even if P has no authority to maintain suit in
trial court – the grievance is that the trial court
determines that P has no standing, and that
determination is appealable
 (G) Timeliness
o (1) Normally – the earliest of …
 (a) 60 days after court mails notice of entry of
judgment (or appealable order) OR
  (b) 60 days after appellant serves or is served with
judgment (or appealable order) OR
 (c) 180 days after entry of judgment (or appealable
order)
o (2) More time?
 (a) Yes, if motions for: (i) new trial, (b) vacate
judgment, (c) judgment NOV, (d) reconsider appealable
order
 (b) Yes, if cross-appeal: when first appeal in, 20+ day
deadline for cross-appeals from notice of filing of first
appeal
 (c) Otherwise, NO. Not enough for good cause.
Untimely = appeal dismissed.