California Civil Procedure Before Trial

An indispensable source of information, this book helps you easily tackle pretrial litigation from first client contact, through pleadings and law and motion matters, to preparing yourself for the best outcome whether through settlement, arbitration, or trial. Filled with sample forms.

Purchase California Civil Procedure Before Trial and get Handling Subpoenas Action Guide (a $159 value) for free when you order with priority code 7040Z by July 19, 2019.

"The [CEB] book I find most helpful is Civil Procedure Before Trial. Although I have tried my share of cases, most litigators are proceduralists, and this book is a solid guide through the pretrial process."
William N. Hebert, Calvo Fisher & Jacob LLP San Francisco

An indispensable source of information, this book helps you effectively tackle pretrial litigation from first client contact, through pleadings and law and motion matters, to preparing yourself for the best outcome whether through settlement, arbitration, or trial. Filled with sample forms.

Conflicts of interest and new clients
When clients do not pay: fee collection through mandatory fee arbitration procedures
Jurisdiction and venue
Drafting complaints and responsive pleadings
Serving process and papers
Federal court removal
Law and motion practice and procedures
Injunctions and other provisional remedies
Summary judgment, default, and dismissal
Case management conferences, time delays, and complex cases

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Overview
Table of Contents
Forms CD Contents
Selected Developments
Authors
OnLAW System Requirements
Specifications

"The [CEB] book I find most helpful is Civil Procedure Before Trial. Although I have tried my share of cases, most litigators are proceduralists, and this book is a solid guide through the pretrial process."
William N. Hebert, Calvo Fisher & Jacob LLP San Francisco

Conflicts of interest and new clients
When clients do not pay: fee collection through mandatory fee arbitration procedures
Jurisdiction and venue
Drafting complaints and responsive pleadings
Serving process and papers
Federal court removal
Law and motion practice and procedures
Injunctions and other provisional remedies
Summary judgment, default, and dismissal
Case management conferences, time delays, and complex cases

Accepting Cases and Implementing Office Procedures

I. SCOPE OF CHAPTER 1.1
II. BEFORE TAKING CASE
- A. Determine Objectives of Litigation 1.2
- B. Avoid Future Claims of Malicious Prosecution or Abuse of Process 1.3
  - 1. Malicious Prosecution 1.4
  - 2. Abuse of Process 1.5
- C. Safeguard Against Sanctions
  - 1. For Litigation of Matter Unwarranted by Law 1.6
    - a. Sanctions Under CCP §128.5 1.6A
    - b. Sanctions Under CCP §128.7 1.6B
  - 2. For Bad Faith Appeal 1.7
- D. Check for Conflicts 1.8
- E. Know Rules of Professional Competence 1.9
- F. Ascertain Circumstances of Referral 1.10
- G. Consider Economic Feasibility and Other Matters 1.11
III. INITIAL INTERVIEW
- A. Obtain Facts 1.12
- B. Establish Good Working Relationship 1.13
- C. Outline Possible Results, Risks, Costs, Timing, and Alternatives 1.14
- D. Discuss Fee Agreements 1.15
- E. Draft Engagement or Retainer Letter 1.16
IV. CASE INVESTIGATION
- A. Confirm Client’s Facts; Resources 1.17
- B. Organize Research of Issues 1.18
- C. Plan Discovery 1.19
V. OFFICE MANAGEMENT AND PROCEDURES
- A. Establish Procedures and Controls 1.20
  - 1. Client Intake Forms and Procedures 1.21
  - 2. Office Procedures 1.22
  - 3. Forms Manuals 1.23
- B. Use of Contract Attorneys and Paralegals
  - 1. Contract Attorneys
    - a. Advantages and Disadvantages 1.24
    - b. Need for Written Contract 1.25
    - c. Depositions and Court Appearances 1.26
  - 2. Paralegals 1.27
    - a. Definition and Permitted Activities 1.28
    - b. Prohibited Activities 1.29
    - c. Education and Training Requirements 1.30
  - 3. Delegation and Supervision 1.31
VI. CASE MANAGEMENT SYSTEM 1.32
- A. Filing System
  - 1. Case Files
    - a. Numbering 1.33
    - b. Individual File Organization 1.34
    - c. Location 1.35
    - d. Document Management and Evidence Retrieval 1.36
    - e. Closing Files 1.37
  - 2. Client Directory Files 1.38
  - 3. Conflicts File 1.39
- B. Evaluating Services Rendered 1.40
- C. Calendaring and Docket Control 1.41
  - 1. Master Calendar 1.42
  - 2. Secondary Calendars 1.43
  - 3. “Tickler” System 1.44
VII. TIMEKEEPING AND RECORDING
- A. Importance of Accurate Recordkeeping 1.45
- B. Timekeeping Systems 1.46
- C. Review of Office Productivity 1.47
VIII. FORMS
- A. Questionnaire: Client Interview (Individuals) 1.48
- B. Questionnaire: Client Interview (Businesses) 1.49

Avoiding Conflicts of Interest

I. INTRODUCTION
- A. Scope of Chapter 2.1
- B. Governing Law
  - 1. Statutes, Rules, and Professional Standards 2.2
  - 2. Ethics Opinions 2.3
  - 3. Rationale for Rules 2.4
II. AVOIDING CONFLICTS SITUATIONS
- A. Creating a Conflicts Check System 2.5
- B. Alternatives for Resolving Conflicts 2.6
- C. Effect of Breaching Conflicts Rules
  - 1. Disqualification 2.7
  - 2. State Bar Discipline 2.8
  - 3. Refunding Attorney Fees 2.9
  - 4. Tort Liability 2.10
III. CONFLICTS ARISING FROM CONCURRENT REPRESENTATION (CAL RULES OF PROF COND 1.7)
- A. Rule Against Conflicting Concurrent Representation 2.11
- B. What Constitutes a Conflict Under Rule 1.7 2.12
- C. When Conflict Arises Later 2.13
- D. Existence of Attorney-Client Relationship 2.14
- E. Multiple Representation in Transactional Matters 2.15
- F. Advance Waivers of Future Conflicts 2.16
IV. CONFLICTS ARISING FROM SUCCESSIVE REPRESENTATION (CAL RULES OF PROF COND 1.9)
- A. Concurrent Versus Successive Representation 2.17
- B. Duties to Former Clients 2.18
  - 1. Definition of Same or Substantially Related Matters 2.19
    - a. When No Confidential Information Given 2.20
    - b. Information Not Confidential 2.21
    - c. Confidential Information Given to Nonattorney 2.22
    - d. Disclosures of Confidences Made by Attorney’s Client 2.23
    - e. Disclosure Necessary to Prevent Criminal Act 2.24
  - 2. Identifying Client Under Rule 1.9 2.25
V. CONFLICTS ARISING FROM ATTORNEY’S ADVERSE PECUNIARY INTEREST (CAL RULES OF PROF COND 1.8.1) 2.26
VI. ATTORNEY ACCEPTING COMPENSATION FROM NONCLIENT (CAL RULES OF PROF COND 1.8.6) 2.26A
VII. CONFLICTS ARISING FROM RELATIONSHIPS WITH OTHER PERSONS (RULES 1.7(b)–(c))
- A. Interest in Subject Matter or Relationship With Another Party, Witness, or Third Person (Rule 1.7(b)–(d)) 2.27
- B. Relationship With Other Party’s Lawyer (Rule 1.7(c)(2)–(d)) 2.28
- C. Relationship With Successor Counsel and Co-Counsel 2.29
- D. Relationship With Nonclients 2.30
  - 1. Nonclient Family Members 2.31
  - 2. Attorney as Public Officer 2.32
  - 3. Attorney as Arbitrator 2.33
  - 4. Attorney as Trustee, Executor, Corporate Director, or Other Fiduciary 2.34
VIII. CONFLICTS INVOLVING LAWYERS REPRESENTING CORPORATIONS (CAL RULES OF PROF COND 1.13)
- A. Organization Is Attorney’s Client 2.35
- B. Different Types of Conflicts
  - 1. Between Client Corporation and Parent Corporation 2.36
  - 2. Between Client Corporation and Partnership 2.37
  - 3. Between Client Corporation and Its Constituents 2.38
- C. Dual Representation of Organization and Constituent 2.39
IX. CONFLICTS ARISING IN INSURANCE CONTEXT
- A. Dual Representation of Insurer and Insured 2.40
- B. Conflicts Between Insurer and Insured 2.41
  - 1. Insurer’s Duty to Provide Independent Counsel to Insured (Cumis Counsel) 2.42
  - 2. Independent Counsel Owes Fiduciary Duty to Insured 2.43
X. LIMITATIONS ON ATTORNEY ACTING AS WITNESS (RULE 3.7)
- A. When Attorney May Serve as Witness 2.44
- B. Informed, Written Consent 2.45
- C. Another Attorney in Firm as Witness 2.46
- D. Attorney as Witness for Opposing Party 2.47
XI. IMPUTED AND VICARIOUS DISQUALIFICATION (RULES 1.10 AND 1.11)
- A. In General 2.48
- B. Imputed Disqualification and Former and Current Public Officials and Employees 2.48A
- C. Imputed Disqualification and Nonlawyer Employees 2.49
- D. Building an Ethical Wall 2.50
XII. CLIENT’S CONSENT TO AND WAIVER OF CONFLICTS
- A. Consent Must Be Informed, in Writing 2.51
- B. Complete Disclosure 2.52
- C. Implied Waiver and Consent 2.53
XIII. ATTORNEY WITHDRAWAL AND DISQUALIFICATION
- A. Withdrawal 2.54
- B. Disqualification 2.55
  - 1. Motions for Disqualification or Recusal in General 2.56
    - a. Delay in Filing Motion 2.57
    - b. Effect of Making Motion Close to Trial 2.58
    - c. Review by Appeal or Writ of Mandate 2.59
  - 2. Appearance of Impropriety Not a Basis for Disqualification 2.60
XIV. FORMS
- A. Sample Letter to Client: Adverse Representation 2.61
- B. Sample Letter to Corporate Officer: Dual Representation 2.62

Representation Agreements

I. INTRODUCTION
- A. Scope of Chapter 3.1
- B. Governing Law 3.2
II. FEE AND REPRESENTATION AGREEMENTS
- A. Basic Rules 3.3
  - 1. When Written Agreement Required
    - a. Contingent Fees 3.4
    - b. Other Types of Fees 3.5
    - c. Effect of Failure to Have Written Agreement 3.6
  - 2. When Oral Fee Agreement Sufficient
    - a. Total Costs and Fees Under $1000 3.7
    - b. Claims Between Merchants 3.8
    - c. Emergencies 3.9
    - d. Similar Services Paid for by Client 3.10
    - e. Client’s Written Waiver of Bus & P C §6148 3.11
    - f. Agreements Made Before January 1, 1987 3.12
    - g. Corporation as Client 3.13
- B. Confidentiality 3.14
- C. Form of Agreement
  - 1. Contract or Letter 3.15
  - 2. General Nature of Legal Services 3.16
  - 3. Duplicate Copy of Signed Contract 3.17
  - 4. Develop Written Forms That Can Be Adapted 3.18
- D. Disclosure of Professional Liability Insurance 3.19
- E. Income Tax Issues 3.20
- F. Attorney’s Lien
  - 1. Right to Lien 3.20A
  - 2. Agreeing to Lien 3.20B
  - 3. Ethical Requirements 3.20C
- G. Optional Terms 3.21
III. TYPES OF FEES
- A. Contingent Fee 3.22
  - 1. Medical Malpractice Cases 3.23
  - 2. “Reasonable Fee” If Agreement Voided 3.24
  - 3. Attorney’s Lien [Deleted] 3.25
- B. Retainer
  - 1. Nonrefundable, Not Credited on Fee 3.26
  - 2. Refundable, Less Fees Earned 3.27
  - 3. Nonrefundable: Minimum Fee 3.28
- C. Hourly or Other Noncontingent Fees
  - 1. Billing Requirements 3.29
  - 2. Description of Legal Services 3.30
  - 3. Attorney’s Responsibilities 3.31
  - 4. Client’s Responsibilities 3.32
- D. Fixed or Flat Fee 3.33
- E. Advance on Fees, Balance in Installments 3.34
- F. Forwarding or Referral Fee 3.35
- G. Fees to Associate Counsel 3.36
IV. LIMITATIONS ON ABILITY TO AGREE ON FEES
- A. Fees Set or Limited by Statute 3.37
- B. Fees Subject to Court Approval 3.38
- C. Illegal Fee Contracts
  - 1. Against Public Policy or Violate Ethical Standards 3.39
  - 2. Family Law Cases 3.40
  - 3. Other Examples 3.41
- D. Representation Agreements Acquiring an Adverse Interest 3.42
- E. Unconscionable Fees 3.43
V. FORMS
- A. Form: Sample Contingent Fee Agreement 3.44
- B. Form: Sample Fee Agreement Based on Hourly Rate for Services 3.45
- C. Form: Disclosure and Consent on Fee Splitting (Referral) 3.46
- D. Form: Disclosure and Consent on Fee Splitting (Association) 3.47
- E. Form: Attorney’s Lien Agreement 3.48

Changing Representation During Suit

I. INTRODUCTION
- A. Scope of Chapter 4.1
- B. Governing Law 4.2
II. BECOMING ATTORNEY OF RECORD
- A. Initial Appearance in Action or Proceeding 4.3
- B. Client’s Right to Change Attorneys 4.4
III. SUBSTITUTION OF ATTORNEY
- A. Substitution With Counsel’s Consent
  - 1. Procedures 4.5
  - 2. Notice to Other Parties 4.6
- B. Substitution Without Counsel’s Consent
  - 1. Client’s Motion for Substitution
    - a. Motion Generally Granted 4.7
    - b. Denial Because Trial Imminent 4.8
    - c. Denial Because Attorney’s Power Coupled With an Interest 4.9
  - 2. Former Counsel’s Failure to Deliver Files 4.10
    - a. Retaining Lien Void 4.11
    - b. Unearned Fees 4.12
- C. Former Counsel’s Right to Fees
  - 1. Reasonable Fees to Time of Discharge 4.13
  - 2. Charging Lien Valid 4.14
IV. ASSOCIATION OF ATTORNEY
- A. Authority 4.15
- B. Notice of Association 4.16
- C. Court Appearance by Out-of-State Attorney
  - 1. Procedures for Appearing as Counsel Pro Hac Vice 4.17
  - 2. Association of California Counsel as Attorney of Record Required 4.18
V. ATTORNEY’S WITHDRAWAL
- A. Duties to Client 4.19
- B. Withdrawal With Client’s Consent 4.20
- C. Attorney’s Withdrawal Without Client’s Consent
  - 1. Motion to Be Relieved as Counsel 4.21
  - 2. Procedures for Obtaining Court Order Relieving Counsel
    - a. Actions in Trial Court 4.22
      - (1) Notice of Motion 4.23
      - (2) Declaration of Counsel 4.24
      - (3) Service of Notice and Declaration 4.25
      - (4) Proposed Order 4.26
      - (5) Order 4.27
    - b. Appeals Pending in Superior Court Appellate Division 4.28
    - c. Matters Pending in Court of Appeal and Supreme Court 4.29
    - d. Withdrawal When Publicly Funded Representation Reduced 4.30
    - e. Withdrawal From Dissolution of Marriage Action 4.31
    - f. Withdrawal From Representation of Corporation 4.32
- D. Grounds
  - 1. Mandatory Withdrawal 4.33
  - 2. Conditionally Mandatory Withdrawal 4.34
  - 3. Permissive Withdrawal 4.35
VI. ATTORNEY’S ABANDONMENT OF CLIENT 4.36
VII. CLIENT’S DEATH OR INCAPACITY 4.37
VIII. CESSATION OF LAW PRACTICE
- A. Attorney’s Death, Incapacity, or Suspension 4.38
  - 1. Procedures for Finding of Incapacity 4.39
  - 2. Demand That Party Appoint Attorney or Appear 4.40
  - 3. Party’s Appointment of Attorney 4.41
- B. Notice of Cessation of Law Practice 4.42
- C. Application for Court Jurisdiction Over Practice 4.43
  - 1. Contents of Application 4.44
  - 2. Hearing 4.45
  - 3. Appointment of Attorney 4.46
  - 4. Limited Judicial Powers 4.47
  - 5. Confidentiality 4.48
  - 6. No Liability 4.49
  - 7. Expenses Paid, But No Fees 4.50
  - 8. No Appeals 4.51
IX. MOTION FOR DISQUALIFICATION
- A. Adverse Party’s Motion for Disqualification 4.52
- B. Grounds; Procedure 4.53
- C. Court’s Ruling 4.54
X. FORMS
- A. Form: Notice and Substitution of Attorney 4.55
- B. Form: Substitution of Attorney—Civil (Without Court Order) (Judicial Council Form MC-050) 4.56
- C. Client’s Motion for Substitution of Attorney
  - 1. Form: Notice of Motion for Substitution of Attorney 4.57
  - 2. Form: Declaration of Client Supporting Motion for Substitution of Attorney 4.58
  - 3. Form: Declaration of Attorney Supporting Motion for Substitution of Attorney 4.59
  - 4. Form: Order Substituting Attorney 4.60
- D. Form: Association of Attorney 4.61
- E. Form: Application to Appear as Counsel Pro Hac Vice; Notice of Hearing 4.62
- F. Form: Consent by Client to Continued Representation (Cal Rules of Prof Cond 3.7) 4.63
- G. Withdrawal as Attorney (Cal Rules of Ct 3.1362)
  - 1. Form: Notice of Motion and Motion to Be Relieved as Counsel—Civil (Judicial Council Form MC-051) 4.64
  - 2. Form: Declaration in Support of Attorney’s Motion to Be Relieved as Counsel—Civil (Judicial Council Form MC-052) 4.65
  - 3. Form: Order Granting Attorney’s Motion to Be Relieved as Counsel—Civil (Judicial Council Form MC-053) 4.66
- H. Form: Notice of Attorney’s Withdrawal Under CCP §285.1 (Dissolution of Marriage Case) 4.67
- I. Form: Demand for Appointment of Attorney or Personal Appearance 4.68

Client Fee Dispute Arbitrations

I. INTRODUCTION
- A. Scope of Chapter 5.1
- B. Governing Law 5.2
II. MANDATORY FEE ARBITRATION ACT
- A. Purpose 5.3
- B. Duty to Notify Client 5.3A
- C. State Bar and Local Programs 5.4
  - 1. State Bar Website 5.5
  - 2. Filing Fees and Costs 5.6
  - 3. Jurisdiction 5.7
  - 4. Arbitral and Mediation Immunity 5.8
- D. Statutory Exceptions to Mandatory Fee Arbitration Act 5.9
- E. Nonstatutory Exceptions
  - 1. Person or Entity Other Than Client Disputing Attorney Fees 5.10
  - 2. “Cumis” Insurance Disputes Not Subject to Mandatory Fee Arbitration Act 5.11
  - 3. Separate Negotiation of Damages and Attorney Fees 5.12
III. PROCEDURES BEFORE ARBITRATION
- A. Notice of Client’s Right to Fee Arbitration; Service 5.13
- B. Request for Arbitration; Service on Respondent 5.14
  - 1. Attorney’s Response 5.15
  - 2. Client’s Response 5.16
- C. Client’s Loss of Right to Compel Arbitration
  - 1. Failure to Request Arbitration Within 30 Days After Receipt of Notice 5.17
  - 2. Client’s Answer to Complaint for Fees 5.18
  - 3. Client’s Filing of Action or Pleading Seeking Judicial Resolution of Dispute or Affirmative Relief Based on Malpractice 5.19
- D. Effect of Requesting Arbitration
  - 1. Proceedings Stayed 5.20
  - 2. Vacating Stay: Exception for Certain Provisional Remedies 5.21
  - 3. Time Tolled for Filing Civil Action 5.22
  - 4. Agreement to Binding Arbitration 5.23
IV. THE HEARING
- A. Preliminary Matters 5.24
  - 1. Appointment of Arbitrators; Disqualification 5.25
  - 2. Issuing Subpoenas 5.26
  - 3. Clarification of Issues and Exchange of Documents 5.27
  - 4. Waiver of Personal Appearance; Right to Counsel 5.28
- B. Testimony
  - 1. Administering Oath 5.29
  - 2. Evidence 5.30
    - a. Discovery Generally Not Permitted 5.31
    - b. Attorney-Client Communications and Work Product; Confidentiality 5.32
- C. Award; Contents 5.33
V. POSTARBITRATION PROCEDURES
- A. Notice of Postarbitration Rights to Judicial Relief 5.34
- B. Confirmation, Correction, or Vacation of Award 5.35
- C. Rejection of Award and Trial After Arbitration 5.36
- D. Attorney Fees and Costs
  - 1. After Award Confirmed, Corrected, or Vacated 5.37
  - 2. After Postarbitration Trial; Prevailing Party Defined 5.38
- E. State Bar Enforcement 5.39
VI. LITIGATING A FEE COLLECTION ACTION
- A. Pleading Service of Notice of Right to Arbitrate Fee Dispute 5.40
- B. Overcoming Presumption of Undue Influence 5.41
- C. Compliance With Fee Agreement Statute 5.42
- D. Proving Fee Agreement 5.43
- E. Determining Reasonable Attorney Fees in Absence of Fee Agreement; Guidelines 5.44
- F. Client’s Defenses to Action for Fees
  - 1. Attorney’s Unjustified Withdrawal 5.45
  - 2. Illegal Fee Agreements 5.46
  - 3. Discharge of Attorney 5.47

California Jurisdiction

I. INTRODUCTION
- A. Scope of Chapter 6.1
- B. Governing Law 6.2
- C. Related Issues 6.3
II. SUBJECT MATTER JURISDICTION
- A. General Principles 6.4
  - 1. Conferred by California Constitution 6.5
  - 2. Consent, Waiver, or Estoppel 6.6
  - 3. Judgment Void If Court Lacks Subject Matter Jurisdiction 6.7
  - 4. Exclusive Concurrent Jurisdiction 6.8
- B. Supreme Court 6.9
- C. Courts of Appeal 6.10
- D. Superior Courts 6.11
  - 1. Trial Court Unification 6.12
  - 2. Unlimited Civil Cases
    - a. Amount in Controversy Exceeds $25,000 6.13
    - b. Unlimited Civil Cases by Statute 6.14
  - 3. Limited Civil Cases
    - a. Amount in Controversy Does Not Exceed $25,000 6.15
    - b. Limited Civil Cases by Statute 6.16
    - c. Appellate Jurisdiction in Limited Civil Cases 6.17
  - 4. Small Claims Courts 6.18
    - a. Jurisdiction Derived From Statute 6.19
    - b. Attorney Assistance to Litigants 6.20
    - c. Equitable Relief 6.21
    - d. Appeals of Small Claims Cases 6.22
    - e. Res Judicata and Collateral Estoppel Effect of Small Claims Judgments 6.22A
  - 5. Classification of Case as Limited or Unlimited
    - a. Importance of Correct Classification 6.23
    - b. Classification by Party Initiating Case 6.24
      - (1) Determining Amount in Controversy 6.25
      - (2) Aggregation of Claims 6.26
  - 6. Reclassification
    - a. Changing Jurisdictional Classification 6.27
      - (1) By Amended Initial Pleading 6.28
      - (2) By Cross-Complaint 6.29
      - (3) By Noticed Motion 6.30
      - (4) By Stipulation 6.31
      - (5) By Court 6.32
    - b. When Reclassification Is Not Required 6.33
    - c. Hearing to Obtain Information on Reclassification 6.34
    - d. Reclassification Fees
      - (1) Determination of Fees 6.35
      - (2) Reclassification Dependent on Payment of Fees 6.36
    - e. Abuses of Discretion in Reclassification 6.37
    - f. Review of Trial Court’s Reclassification Order 6.38
  - 7. Transfer of Case Mistakenly Filed in Superior Court 6.39
III. RELATIONSHIP BETWEEN STATE AND FEDERAL SUBJECT MATTER JURISDICTION
- A. Scope of Discussion 6.40
- B. Exclusive and Concurrent Federal Court Jurisdiction 6.41
- C. Factors in Determining Choice of Forum 6.42
  - 1. Geographic Considerations 6.43
  - 2. Venue and Transfer 6.44
  - 3. Applicable Substantive Law 6.45
  - 4. Applicable Procedural Law 6.46
  - 5. Juries 6.47
  - 6. Calendar Congestion and Management 6.48
  - 7. Caliber of Judiciary and Opposing Counsel 6.49
  - 8. Attitude of Judiciary 6.50
  - 9. Disqualification of Judge 6.51
IV. LIMITATIONS ON SUBJECT MATTER JURISDICTION
- A. Governmental Immunity 6.52
- B. Action Barred by Time Limitations 6.53
- C. Failure to Exhaust Administrative Remedies 6.54
- D. Appellate Jurisdiction Invoked 6.55
- E. Voluntary Dismissal 6.56
- F. Order Changing Venue 6.57
- G. Standing 6.57A
V. CHALLENGING SUBJECT MATTER JURISDICTION
- A. Timing and Procedures 6.58
- B. Jurisdiction to Determine Jurisdiction 6.59
VI. PERSONAL JURISDICTION
- A. Introduction
  - 1. Statutory Basis; Legislative Intent 6.60
  - 2. Constitutional Limitations on Nonresidents
    - a. Due Process Clause 6.61
    - b. “Minimum Contacts” 6.62
    - c. General and Specific Jurisdiction 6.63
    - d. Forum Non Conveniens 6.64
  - 3. Motion to Quash; Burden of Proof 6.65
- B. Jurisdiction Over Individuals
  - 1. Introduction 6.66
  - 2. Domicile 6.67
  - 3. Residence 6.68
  - 4. Citizenship 6.69
  - 5. Physical Presence in State 6.70
  - 6. Appearance in Judicial Proceeding 6.71
    - a. Acts Constituting General Appearance 6.72
    - b. Motion to Dismiss for Lack of Subject Matter Jurisdiction 6.73
    - c. Motion for Attorney Fees 6.74
    - d. Filing Status Conference Questionnaire 6.75
    - e. Filing Answer 6.76
    - f. Service of Notice of Taking Deposition 6.77
  - 7. Consent to Jurisdiction 6.78
  - 8. Forum Selection Clauses 6.79
  - 9. Acts Done in State
    - a. Doing Business in State 6.80
    - b. Tort Actions 6.81
    - c. Contract Actions
      - (1) Execution and Effect of Contract 6.82
      - (2) Purposeful Availment Required 6.83
      - (3) Employment Agreements 6.84
      - (4) Contracts Involving Purchase of Goods 6.85
  - 10. Act Done Outside State Causing Effect in State 6.86
  - 11. Ownership, Use, or Possession of Property in State 6.87
  - 12. Other Bases 6.88
- C. Jurisdiction Over Corporations
  - 1. Introduction 6.89
  - 2. Incorporation in State 6.90
  - 3. Appointment of Agent in State to Accept Service of Process 6.91
  - 4. Doing Business in State
    - a. Basic Rule 6.92
    - b. “Doing Business” Defined 6.93
    - c. Test for General Jurisdiction 6.94
    - d. Test for Specific Jurisdiction 6.95
    - e. Internet Activity 6.95A
    - f. Past Business 6.96
  - 5. Appearance in Judicial Proceeding 6.97
  - 6. Consent to Jurisdiction 6.98
  - 7. Act Done in State 6.99
  - 8. Act Done Outside State Causing Effect in State 6.100
  - 9. Ownership, Use, or Possession of Property in State 6.101
  - 10. Parent Corporation’s Ownership or Control of Subsidiary in State 6.102
  - 11. Subsidiary or Affiliate Entity Providing Representative Services in State 6.102A
  - 12. Foreign Subsidiary Having Parent in State 6.103
  - 13. Corporate Officers 6.104
  - 14. Other Bases 6.105
- D. Jurisdiction Over Partnerships and Other Unincorporated Associations 6.106
VII. IN REM AND QUASI IN REM JURISDICTION
- A. Nature of Proceeding 6.107
- B. “Minimum Contacts” Required 6.108
- C. Notice Requirements 6.109
- D. Form of Action and Judgment 6.110
VIII. CHECKLIST: DIAGNOSTIC QUESTIONS 6.111

Federal Jurisdiction

I. INTRODUCTION
- A. Scope of Chapter 7.1
- B. Governing Law 7.2
II. GENERAL PRINCIPLES
- A. Limitations on Federal Court’s Subject Matter Jurisdiction
  - 1. Case or Controversy Requirement 7.3
    - a. Advisory Opinions 7.4
    - b. Mootness 7.5
      - (1) On Appeal 7.6
      - (2) Repetition-Evasion Exception 7.7
      - (3) Class Actions 7.8
  - 2. Standing 7.9
    - a. Standing in Procedural Injury Cases 7.9A
    - b. Standing When Statute Challenged on First Amendment Grounds 7.9B
  - 3. Ripeness 7.10
  - 4. Political Questions 7.11
  - 5. Abstention 7.12
- B. Pleading Requirement 7.13
- C. Nonwaivability of Lack of Subject Matter Jurisdiction 7.14
III. FEDERAL QUESTION JURISDICTION
- A. Statutory Authority 7.15
- B. When Cases Arise Under Federal Law 7.16
- C. The Well-Pleaded Complaint Rule 7.17
  - 1. Plaintiff as Master of Complaint 7.18
  - 2. Artful Pleading Doctrine 7.19
  - 3. Federal Defense Insufficient 7.20
- D. Complete Preemption Doctrine 7.21
- E. Federal Claim Must Be Substantial 7.22
- F. Private Right of Action 7.23
- G. Cause of Action Under Federal Common Law 7.24
  - 1. Development of Federal Common Law 7.25
  - 2. Application of Federal Common Law 7.26
  - 3. Whether to Adopt State Law as Federal Rule 7.27
- H. Private Cause of Action Under International Treaties 7.28
- I. Concurrent State and Federal Jurisdiction 7.29
- J. Exclusive Federal Court Jurisdiction 7.30
- K. Causes of Action Under Declaratory Judgment Act 7.31
- L. Jurisdiction to Proceed on Merits When Jurisdiction Attacked 7.32
IV. SUPPLEMENTAL JURISDICTION
- A. Definitions; 28 USC §1367 7.33
  - 1. Limited Supplemental Jurisdiction in Diversity Cases 7.34
  - 2. When Exercise of Supplemental Jurisdiction May Be Declined 7.35
  - 3. Statute of Limitations Tolling 7.36
- B. Pendent Jurisdiction
  - 1. Defined; Discretionary Doctrine 7.37
  - 2. Derivative Nature of Pendent Jurisdiction 7.38
  - 3. Pendent Jurisdiction Determined by Pleadings 7.39
  - 4. Factors That Court Considers 7.40
  - 5. Effect of Dismissal of Federal Claim 7.41
  - 6. Pendent Party Jurisdiction 7.42
- C. Ancillary Jurisdiction (Cases Begun Before December 1, 1990)
  - 1. Defined; Discretionary Doctrine; Effect 7.43
  - 2. Claims Against Existing Parties: Counterclaims; Cross-Claims 7.44
  - 3. Claims Involving New Parties: Impleader; Intervention 7.45
  - 4. Effect of Dismissal of Federal Claim 7.46
  - 5. Limits on Use by Plaintiffs 7.47
V. DIVERSITY JURISDICTION
- A. Statutory Authority 7.48
- B. Purpose of Diversity Jurisdiction 7.49
- C. Complete Diversity Requirement 7.50
  - 1. Citizenship
    - a. Individuals 7.51
      - (1) Domicile 7.52
      - (2) Domicile by Operation of Law 7.53
      - (3) Residence Distinguished 7.54
      - (4) Stateless Persons 7.55
    - b. Governmental Bodies 7.56
    - c. Corporations
      - (1) General Rule 7.57
      - (2) Principal Place of Business 7.58
      - (3) Federal Corporations 7.59
    - d. Unincorporated Associations 7.60
    - e. Partnerships 7.61
    - f. Assignees 7.62
    - g. Aliens
      - (1) Jurisdiction Generally 7.63
      - (2) Aliens Admitted for Permanent Residence (Cases Commenced On or After January 6, 2012) 7.63A
      - (3) Aliens Admitted for Permanent Residence (Cases Commenced Before January 6, 2012) 7.64
    - h. Foreign States 7.65
    - i. Legal Representative 7.66
    - j. Class Action 7.67
    - k. Special Rule for Direct Actions Against Insurer 7.68
  - 2. Time of Filing of Complaint Controls 7.69
  - 3. Court’s Duty to Realign Parties 7.70
  - 4. Effect of Intervenors 7.71
  - 5. Exception for Statutory Interpleader 7.72
- D. Jurisdictional Amount in Controversy Requirement 7.73
  - 1. Determined by Pleadings 7.74
  - 2. Determined as of Time Action Commenced 7.75
  - 3. Punitive Damages 7.76
  - 4. Attorney Fees 7.77
  - 5. Exclusion of Interest and Costs 7.78
  - 6. Relief Other Than Monetary Damages 7.79
  - 7. Aggregation of Claims 7.80
- E. Exceptions for Domestic Relations and Probate 7.81

Venue

I. INTRODUCTION
- A. Scope of Chapter 8.1
- B. Governing Law 8.2
- C. Statutory List: Venue Statutes 8.3
II. PRELIMINARY MATTERS
- A. Venue Defined 8.4
- B. Nature of Action: Transitory, Local, or Mixed 8.5
- C. Importance of Complaint 8.6
- D. Importance of Trial Court Delay Reduction Act in Choosing Venue 8.7
- E. Effect of Contractual Venue Agreements 8.8
- F. Effect on Venue of Coordination Statutes 8.9
III. VENUE IN TRANSITORY ACTIONS
- A. General Rule: County of Defendant’s Residence 8.10
  - 1. Residence Defined 8.11
  - 2. Effect of Multiple Defendants
    - a. Residence of Any Defendant 8.12
    - b. Improper Joinder of Defendants
      - (1) Statutory Authority: CCP §395(a) 8.13
      - (2) Case Examples 8.14
- B. Special Residence Problems
  - 1. Residence Outside State or Unknown 8.15
  - 2. Imminent Departure From State 8.16
- C. Particular Transitory Actions With Greater Venue Choice 8.17
  - 1. Contract Actions
    - a. Statutory Provisions 8.18
    - b. Contract Actions Governed by CCP §395(a)
      - (1) Types of Actions 8.19
      - (2)  Determining Where Contract Is Entered Into
        
        (a)  Last Act Necessary: Acceptance  8.20
        
        (b)  Illustrative Cases  8.21
        
        (c)  Effect of Contract Provisions  8.22
      - (3)  Determining Place of Performance
        
        (a)  Statutory Definitions  8.23
        
        (b)  Illustrative Cases  8.24
    - c. Consumer Obligations and Installment Sales
      - (1) Consumer Obligations (CCP §395(b)) 8.25
      - (2) Installment Sales Contracts (CC §§1812.10, 2984) 8.26
      - (3) Pleading Requirements 8.27
      - (4) Consent to Improper Venue 8.28
  - 2. Personal Injury and Wrongful Death Actions 8.29
  - 3. Actions for Injury to Personal Property 8.30
IV. VENUE IN LOCAL ACTIONS
- A. Local Action Defined 8.31
- B. Local Actions Involving Real Property
  - 1. Real Property Actions (CCP §392)
    - a. Types of Actions 8.32
    - b. Examples
      - (1) Recovery of Real Property or Estate or Interest in Real Property 8.33
      - (2) Determination of Right or Interest in Real Property 8.34
      - (3) Injury to Real Property 8.35
      - (4) Foreclosure of Liens and Mortgages on Real Property 8.36
      - (5) Unlawful Detainer Proceedings 8.37
  - 2. Partition (CCP §872.110) 8.38
  - 3. Eminent Domain Proceedings (CCP §1250.020) 8.39
  - 4. Property Situated in More Than One County 8.40
- C. Local Actions Not Involving Real Property
  - 1. Marital Dissolution Proceedings 8.41
  - 2. Determination of Parental Relationship or to Enforce Support 8.42
  - 3. Adoption 8.43
  - 4. Actions Against Public Officers 8.44
  - 5. Actions for Recovery of Penalty or Forfeiture 8.45
  - 6. Actions Against Executor, Administrator, Guardian, Conservator, or Trustee 8.46
  - 7. Actions for Involuntary Dissolution of Corporation 8.47
V. VENUE IN MIXED ACTIONS
- A. When Situation Arises 8.48
- B. Main Relief Rule 8.49
  - 1. Main Relief Affects Rights in Ownership or Use of Real Property: Local 8.50
  - 2. Main Relief Affects Personal Rights: Transitory 8.51
- C. Joinder of Causes of Action
  - 1. Transitory and Local 8.52
  - 2. Two Transitory Causes of Action 8.53
- D. Public Policy Considerations 8.54
VI. SPECIAL RULES FOR CORPORATIONS, ASSOCIATIONS, AND PARTNERSHIPS (CCP §395.5)
- A. Purpose of Statute 8.55
- B. Entities Governed by CCP §395.5 8.56
- C. Entities and Actions Not Governed by CCP §395.5 8.57
- D. Where Plaintiff May Bring Action 8.58
  - 1. Contract Actions
    - a. Where Contract Is Made 8.59
    - b. Where Contract Is to Be Performed 8.60
  - 2. Tort Actions 8.61
- E. When and Where Defendant May Transfer Action 8.62
- F. Multiple Defendants 8.63
- G. Multiple Causes of Action: Mixed Action Rule Applies 8.64
VII. SPECIAL RULES FOR GOVERNMENT ENTITIES (CCP §394, Govt C §955)
- A. State as Defendant
  - 1. Venue in Sacramento County 8.65
  - 2. Exceptions to Applicability of Govt C §955
    - a. Inverse Condemnation 8.66
    - b. Personal Injury or Death; Injury to Property 8.67
    - c. Action by City, County, or Local Agency Against State 8.68
    - d. State Agency Considered Public Officer 8.69
    - e. Actions Against State or State Agency 8.70
- B. State or State Agency as Plaintiff 8.71
- C. City, County, or Local Agency
  - 1. The Removal Statute (CCP §394) 8.72
    - a. Exception: Injury to Person or Property 8.73
    - b. Effect of Removal Provisions of CCP §394: Specific Situations
      - (1) Action Commenced Where Plaintiff Resides or Does Business 8.74
      - (2) Entity Sues Individual Nonresidents or Corporation Not Doing Business Within County 8.75
      - (3) Condemnation Proceedings 8.76
  - 2. Multiple Defendants 8.77
  - 3. Multiple Causes of Action 8.78

Prelitigation Claims, Notices, and Petitions for Guardians Ad Litem

I. INTRODUCTION
- A. Scope of Chapter 9.1
- B. Governing Law 9.2
II. CLAIMS AGAINST PUBLIC ENTITIES
- A. Presenting Claim as Prerequisite to Suit
  - 1. Requirements; Definition of Public Entity 9.3
  - 2. Exceptions 9.4
  - 3. Effect of Failure to Comply 9.5
  - 4. Claims Against Public Employees 9.6
  - 5. Claims Against Judicial Branch Entities or Judges 9.7
- B. Identifying Public Entity 9.8
- C. Drafting the Claim
  - 1. Contents 9.9
  - 2. Printed Forms Provided by Entities 9.10
- D. Time and Mode of Presentation
  - 1. Deadline for Filing Claim 9.11
  - 2. Accrual of Cause of Action 9.12
  - 3. Amended Claims 9.13
  - 4. Presenting the Claim: Method; Date 9.14
  - 5. Claimant Charged With Crime 9.15
- E. Entity Responses to Claims
  - 1. Acceptance; Denial; Rejection; Return; No Action 9.16
  - 2. Notice of Rejection 9.17
  - 3. Notice of Insufficiencies 9.18
  - 4. Waiver; Estoppel
    - a. Failure to Give Notice of Insufficiency 9.19
    - b. Misleading Claimant 9.20
    - c. Failure to Give Notice That Claim Was Late 9.21
    - d. Failure to File Identifying Information 9.22
    - e. Failure to Advise of Limitations Period After Advance or Partial Payment 9.23
    - f. Failure to Give Notice of Denial of Application to File Late Claim 9.24
- F. Applying to Entity for Leave to Present Late Claim
  - 1. Procedure; Contents of Application 9.25
  - 2. Time Limits on Presenting Application 9.26
- G. Petitioning Court for Late Claim Relief
  - 1. Procedure; Time to File Petition 9.27
  - 2. Grounds for Late Claim Relief 9.28
- H. Filing Suit
  - 1. Filing After Claim Rejected 9.29
  - 2. Filing Suit After Obtaining Court Permission to Sue 9.30
III. SUING PROFESSIONALS
- A. Notice to Health Care Provider Before Filing Medical Malpractice Suit
  - 1. Notice Requirement 9.31
  - 2. Form and Contents of Notice 9.32
- B. Certificate of Merit in Professional Negligence Suit Against Architect, Engineer, or Land Surveyor
  - 1. Requirement 9.33
  - 2. Procedures After Certificate Filed 9.34
- C. Leave to Sue Unpaid Officer or Director of Nonprofit Corporation
  - 1. Requirement 9.35
  - 2. Form and Contents of Application; Service 9.36
- D. Leave to Sue Attorney for Civil Conspiracy 9.37
IV. CLAIMS AGAINST ESTATES
- A. Filing Claim as Prerequisite to Suit
  - 1. Situations Requiring Claims 9.38
  - 2. Situations Not Requiring Prior Claims 9.39
  - 3. Statute of Limitations 9.40
  - 4. Effect of Failure to Present Claim; Waiver 9.41
  - 5. Claims of Public Entities 9.42
- B. Procedure for Filing Claim
  - 1. Notice to Creditors 9.43
  - 2. Time Limits on Filing 9.44
  - 3. Petition to File Late Claim 9.45
  - 4. Amending Claims 9.46
  - 5. Place to File; Method 9.47
- C. Contents of Claim 9.48
- D. Rejection of Claim 9.49
- E. Suit Following Rejection of Claim
  - 1. In General 9.50
  - 2. Action Pending on Date of Death 9.51
V. APPOINTING GUARDIANS AD LITEM
- A. When Available
  - 1. Defined 9.52
  - 2. Situations in Which Appointment of Guardian Is Required or Desirable 9.53
  - 3. Effect of Failure to Appoint
    - a. Right to Disaffirm Judgment 9.54
    - b. Waiver of Right to Disaffirm 9.55
- B. Petitioning for Appointment
  - 1. Selecting Petitioner
    - a. General Qualifications 9.56
    - b. Serving Ward’s Best Interest; Avoiding Conflict 9.57
    - c. Eligible Petitioners
      - (1) For Minor Plaintiff 9.58
      - (2) For Minor Defendant 9.59
      - (3) For Person With a Disability 9.60
  - 2. Time to File Petition
    - a. For Minor Plaintiff 9.61
    - b. For Minor Defendant 9.62
    - c. For Person With a Disability 9.63
  - 3. Form and Content of Petition 9.64
  - 4. Filing and Serving Petition and Proposed Order 9.65
- C. Powers and Duties of Guardian Ad Litem
  - 1. Introduction; Ethical Considerations 9.66
  - 2. Power to Employ Attorney 9.67
  - 3. Power to Conduct Litigation 9.68
  - 4. Power to Compromise Claim
    - a. Statutory Authority 9.69
    - b. Procedures
      - (1) Contents of Petition 9.70
      - (2) Hearing 9.71
      - (3) Distribution of Award 9.72
- D. Terminating Appointment; Compensation
  - 1. Procedures 9.73
  - 2. Termination When Ward Attains Majority or Competence 9.74
  - 3. Compensation 9.75
VI. FORMS
- A. Claims Against Public Entities
  - 1. Form: Claim Against Public Entity 9.76
  - 2. Form: Application for Leave to Present Late Claim 9.77
  - 3. Form: Petition for Leave to File Civil Action 9.78
  - 4. Form: Order Permitting Suit to Be Filed 9.79
  - 5. Form: Allegation in Complaint: Compliance With Claim Requirement 9.80
- B. Suing Professionals
  - 1. Form: Notice of Intention to Sue Health Care Provider 9.81
  - 2. Suit Against Architect, Engineer, or Surveyor
    - a. Form: Certificate of Merit 9.82
    - b. Form: Certificate of Reliance on Res Ipsa Loquitur or Failure to Inform 9.83
    - c. Form: Certificate of Impending Impairment 9.84
    - d. Form: Certificate of Inability to Obtain Consultation 9.85
- C. Claims Against Estates
  - 1. Form: Allegation in Complaint: Compliance With Claim Requirement 9.86
  - 2. Form: Creditor’s Claim (Probate) (Judicial Council Form DE-172) 9.87
- D. Appointing Guardians Ad Litem
  - 1. Form: Petition for Appointment of Guardian Ad Litem for Plaintiff 9.88
  - 2. Form: Petition for Appointment of Guardian Ad Litem for Defendant 9.89
  - 3. Form: Order Appointing Guardian Ad Litem 9.90
  - 4. Form: Petition by Guardian Ad Litem for Authorization to Employ Attorney and for Approval of Fee; Order 9.91
  - 5. Form: Petition for Order Authorizing Compromise of Claim 9.92
  - 6. Form: Order Approving Compromise of Claim of Minor or Person with a Disability 9.93
  - 7. Form: Petition for Order Terminating Appointment of Guardian Ad Litem 9.94
  - 8. Form: Order Terminating Appointment of Guardian Ad Litem 9.95

Fee Waiver

I. INTRODUCTION
- A. Scope of Chapter 10.1
- B. Governing Law 10.2
II. NATURE OF RELIEF; PERSONS ENTITLED
- A. Persons Eligible for Fee Waiver 10.3
  - 1. Receipt of Specified Government Benefits 10.4
  - 2. Income Near Poverty Level 10.5
  - 3. Common Necessaries of Life 10.6
- B. Special Rules for State and County Inmates 10.7
- C. Indigent Litigant Suing on Behalf of Nonindigent Real Party in Interest 10.8
- D. Waivable Fees and Costs 10.9
  - 1. Fees Waivable at Initial Application 10.10
  - 2. Fees Waivable on Additional Application 10.11
  - 3. Bonds and Undertakings 10.12
  - 4. Appointed Counsel 10.13
  - 5. No Waiver of Third Party Fees 10.14
III. PROCEDURE FOR APPLYING FOR FEE WAIVER
- A. Applying for Waiver
  - 1. Mandatory Application Forms 10.15
  - 2. Attorney Advancing Litigation Costs 10.16
  - 3. Attaching Order Form 10.17
  - 4. Confidentiality 10.18
- B. When and Where to File 10.19
- C. Court Review and Determination 10.20
  - 1. Application Granted 10.21
  - 2. Partial Payments and Installments 10.22
  - 3. Application Denied 10.23
    - a. Application Is Incomplete 10.24
    - b. Information Conclusively Establishes Applicant Is Ineligible for Fee Waiver 10.25
  - 4. Eligibility Hearings 10.26
    - a. Veracity of Statements in Application 10.27
    - b. Information Does Not Conclusively Establish Applicant Is Eligible for Fee Waiver 10.28
  - 5. Applicant Request for Hearing 10.29
IV. CHANGED CIRCUMSTANCES 10.30
- A. Before Final Disposition of the Case 10.31
- B. At Final Disposition of the Case 10.32
- C. Retrospective Application of Fees 10.33
- D. Prospective Application of Fees 10.34
- E. Bad Faith 10.35
V. REIMBURSEMENT OF FEE WAIVER
- A. Judgment in Favor of Party Granted Waiver 10.36
- B. Settlement Recovery of $10,000 or More 10.37
VI. Sanctions and Costs Against Party Granted Waiver 10.38
VII. FORMS
- A. Form: Request to Waive Court Fees (Judicial Council Form FW-001) 10.39
- B. Form: Information Sheet on Waiver of Superior Court Fees and Costs (Judicial Council Form FW-001-INFO) 10.40
- C. Form: Request to Waive Additional Court Fees (Superior Court) (Judicial Council Form FW-002) 10.41
- D. Form: Order on Court Fee Waiver (Superior Court) (Judicial Council Form FW-003) 10.42
- E. Form: Notice: Waiver of Court Fees (Superior Court) (Judicial Council Form FW-005) 10.43
- F. Form: Request for Hearing About Court Fee Waiver Order (Superior Court) (Judicial Council Form FW-006) 10.44
- G. Form: Notice on Hearing About Court Fees (Judicial Council Form FW-007) 10.45
- H. Form: Order on Court Fee Waiver After Hearing (Superior Court) (Judicial Council Form FW-008) 10.46
- I. Form: Notice to Court of Improved Financial Situation or Settlement (Judicial Council Form FW-010) 10.47
- J. Form: Notice to Appear for Reconsideration of Fee Waiver (Judicial Council Form FW-011) 10.48
- K. Form: Order on Court Fee Waiver After Reconsideration Hearing (Superior Court) (Judicial Council Form FW-012) 10.49

Pleadings and Court Papers

I. INTRODUCTION
- A. Scope of Chapter 11.1
- B. Governing Rules 11.2
- C. Role of Judicial Council; Local Rule Preemption 11.3
- D. Trial Court Unification 11.4
- E. Electronic Access to Court Records 11.5
II. FORM AND FORMAT 11.6
- A. Physical Form
  - 1. Paper: Quality, Weight, and Size 11.7
  - 2. Font; Printed Copies 11.8
  - 3. Lines: Spacing, Numbering 11.9
  - 4. Pages: One-Sided, Margins 11.10
  - 5. Pages: Numbering, Footer, Fastening, Prepunched Holes 11.11
  - 6. Corrections and Changes 11.12
  - 7. Unused Lines 11.13
  - 8. Exhibits
    - a. Attaching; Numbering 11.14
    - b. Incorporation by Reference: Form of Allegation 11.15
  - 9. Copies 11.16
- B. First-Page Format
  - 1. Name, State Bar Number, Address, Telephone Number, Fax, and E-Mail; Representation 11.17
    - a. Firm Names; Law Corporations 11.18
    - b. Several Attorneys; Several Parties 11.19
  - 2. Caption 11.20
    - a. Name of Court 11.21
    - b. Title of Action (Names of Parties) 11.22
    - c. Number of Case 11.23
    - d. Nature of Paper and Character of Action; Judge’s Name and Department 11.24
    - e. Referee’s Name 11.25
    - f. Limited Civil Case 11.26
III. PREPRINTED FORMS
- A. Judicial Council Forms
  - 1. Mandatory and Optional Forms 11.27
  - 2. Contents of Form; Requirements 11.28
  - 3. Pleading Forms 11.29
  - 4. Filing 11.30
  - 5. Obtaining Forms 11.31
- B. Local Court Forms 11.32
IV. RESPONDING TO CLERK’S REFUSAL TO FILE 11.33
V. CHECKLIST: PROCEDURE FOR PREPARING COURT PAPERS 11.34
VI. SAMPLE: FIRST-PAGE FORMAT OF COURT PAPER 11.35

Noticed Motions

I. INTRODUCTION
- A. Scope of Chapter 12.1
- B. Governing Law
  - 1. Statutes 12.2
  - 2. California Rules of Court 12.3
  - 3. Applicability of Local Court Rules and Policies 12.4
- C. Tactical Objectives 12.5
- D. Consultation With Client 12.6
II. TIME FOR MAKING MOTION
- A. Timing Considerations 12.7
  - 1. Statutory and Rule Restrictions on Timing of Motions 12.8
  - 2. Calculating Effect of Service on Timing of Motion 12.9
  - 3. Effect of Service by Methods Other Than Personal Delivery 12.10
- B. Shortening Time 12.11
  - 1. By Stipulation 12.12
  - 2. By Application for Order Shortening Time 12.13
- C. Extending Time 12.14
  - 1. By Stipulation 12.15
  - 2. By Motion 12.16
III. NOTICE OF MOTION AND MOTION
- A. Motion Defined 12.17
- B. Necessary Papers 12.18
- C. Notice of Motion and Motion 12.19
  - 1. Physical Formatting
    - a. Paper, Print, Spacing, and Margins 12.20
    - b. Binding 12.21
    - c. Footer 12.22
  - 2. Information Required in Caption
    - a. Attorney Information 12.23
    - b. Title of Court 12.24
    - c. Telephone Appearance 12.25
    - d. Title of Case 12.26
    - e. Nature of Paper 12.27
    - f. Date, Time, Location of Hearing 12.28
      - (1) Date and Time 12.29
      - (2) Location 12.30
    - g. Name of Hearing Judge 12.31
    - h. Attachments 12.32
  - 3. Body of Notice of Motion and Motion 12.33
    - a. Introductory Line 12.34
    - b. Nature of Order Sought 12.35
    - c. Grounds for Issuance of Order 12.36
      - (1) Effect of Failure to State Grounds 12.37
      - (2) Court’s Consideration of Grounds Not Stated in Motion 12.38
  - 4. Identification of Papers Supporting the Motion 12.39
    - a. Reference to Papers Previously Filed With Court 12.40
    - b. Papers Not Previously Served on Adverse Party 12.41
  - 5. Date; Signature 12.42
- D. Checklist: Procedures for Motions and Hearings 12.43
IV. SUPPORTING DOCUMENTS
- A. Memorandum in Support of Motion
  - 1. When Supporting Memorandum Required 12.44
  - 2. Motions, Applications, and Petitions Not Requiring Memorandum 12.45
  - 3. Format of Supporting Memorandum
    - a. Contents of Supporting Memorandum 12.46
    - b. Format and Style 12.47
    - c. Length of Supporting Memorandum 12.48
    - d. Table of Contents; Table of Authorities 12.49
  - 4. Organization of Supporting Memorandum 12.50
    - a. Introductory Statement; Introduction 12.51
    - b. Argument
      - (1) Summary of Argument 12.52
      - (2) Concise and Persuasive Argument 12.53
      - (3)  Applicable Statutes and Cases  12.54
        
        (a)  Improper Use of Repealed or Overruled Legal Authority  12.55
        
        (b)  Using Authority From Jurisdictions Outside California  12.56
  - 5. Conclusion 12.57
  - 6. Signature 12.58
- B. Declarations
  - 1. Declaration Compared With Affidavit 12.59
  - 2. Declaration as Substitute for Oral Testimony 12.60
  - 3. Selecting Declarant
    - a. Tactical Considerations 12.61
    - b. Attorney as Declarant 12.62
  - 4. Format of Declaration
    - a. Caption 12.63
    - b. Identity of Declarant 12.64
    - c. Competence of Declarant 12.65
      - (1) Declarations Made “On Information and Belief” 12.66
      - (2) Expert Declarations 12.67
  - 5. Admissibility of Matters Stated 12.68
    - a. Statements of Opinion 12.69
    - b. Hearsay Statements 12.70
  - 6. Subscription 12.71
    - a. Declaration Under Penalty of Perjury 12.72
      - (1) Writing Requirement 12.73
      - (2) Date of Execution 12.74
    - b. Affidavit 12.75
- C. Pleadings and Papers on File 12.76
- D. Documentary Evidence in Support of Motion 12.77
- E. Attached Exhibits 12.78
  - 1. Materials Lodged With Clerk 12.79
  - 2. Use of Copies 12.80
- F. Requests for Judicial Notice 12.81
V. SERVICE AND FILING
- A. Proof of Service 12.82
  - 1. Whom to Serve 12.83
  - 2. Service by Mail 12.84
  - 3. Service by Personal Delivery 12.85
  - 4. Service by Fax or Electronically 12.86
- B. Filing Papers With Court 12.87
- C. Service on Public Officer or Agency
  - 1. Service on Attorney General 12.88
  - 2. Proof of Service 12.89
  - 3. Identification on Cover 12.90
VI. OPPOSING MOTION
- A. Tactical Considerations
  - 1. Initial Evaluation of Motion 12.91
    - a. Cost-Benefit Analysis 12.92
    - b. Factors to Be Evaluated 12.93
  - 2. Consulting With Client 12.94
  - 3. Leaving Motion Unopposed 12.95
  - 4. Resolving Motions by Stipulation or Compromise 12.96
- B. Grounds for Opposing Motion
  - 1. Noncompliance With Procedural Requirements 12.97
  - 2. Evidentiary Matters Inadmissible or Declarant Incompetent 12.98
  - 3. Facts or Law Insufficient to Support Motion 12.99
- C. Preparing Opposition Papers
  - 1. Memorandum in Opposition to Motion 12.100
    - a. Organization of Opposition Memorandum 12.101
    - b. Length Restrictions on Opposition Memorandum 12.102
  - 2. Declarations Opposing Motion 12.103
  - 3. Other Evidentiary Material 12.104
- D. Opposition Procedure
  - 1. Check for Additional Filing Requirements 12.105
  - 2. Time for Filing Opposition Papers 12.106
  - 3. Serving and Filing Opposition Papers 12.107
  - 4. Moving for Continuance 12.108
- E. Checklist: Procedure for Responding to Noticed Motion 12.109
VII. REPLY
- A. Replying to Opposition Papers 12.110
- B. Responding to Reply Papers 12.111
VIII. HEARING
- A. Attendance 12.112
- B. Tentative Rulings 12.112A
- C. Telephone Appearances
  - 1. When Telephone Appearance Is Appropriate 12.113
    - a. Procedure for Appearing by Telephone 12.114
    - b. Matters in Which Personal Appearance Is Required 12.115
    - c. Ex Parte Proceedings 12.115A
  - 2. Notice of Intent to Appear by Telephone
    - a. Notice Requirements for Proceeding Other than Ex Parte Application 12.116
    - b. Notice Requirements for Ex Parte Application 12.116A
  - 3. Personal Appearance After Notice to Appear by Telephone 12.117
  - 4. Teleconferencing 12.118
- D. Oral Argument
  - 1. Purpose of Oral Argument 12.119
  - 2. Presentation of Argument 12.120
  - 3. Answering Judge’s Questions 12.121
- E. Presenting Evidence 12.122
- F. Arranging for Court Reporter 12.123
IX. RULINGS AND ORDERS
- A. Rulings and Orders Defined 12.124
- B. Court’s Ruling on Noticed Motion 12.125
- C. Order After Hearing
  - 1. Preparation of Order 12.126
  - 2. Reason to Submit Proposed Order 12.127
  - 3. Contents of Proposed Order 12.128
  - 4. Findings 12.129
- D. Notice of Ruling 12.130
- E. Procedures After Motion Granted
  - 1. Moving Party 12.131
  - 2. Opposing Party 12.132
- F. Procedures After Motion Denied
  - 1. Motion for Reconsideration 12.133
    - a. Effect of Motion on Timing to File Appeal 12.134
    - b. Subsequent Motion for Same Order 12.135
    - c. Jurisdiction to Hear Motion 12.136
    - d. Denial of Motion 12.137
    - e. Sanctions 12.138
    - f. Appeal 12.139
  - 2. Court’s Inherent Power to Reconsider 12.140
- G. Motion for Relief Under CCP §473 (Mistake, Inadvertence, Surprise, Neglect) 12.141
X. SANCTIONS
- A. Availability of Sanctions 12.142
  - 1. When Sanctions Are Not Available 12.143
  - 2. Discovery Motions 12.144
- B. Moving for Sanctions Under CCP §128.7
  - 1. Motion Must Be Made Separately 12.145
  - 2. Safe Harbor Provisions 12.146
XI. SEALING OF COURT RECORDS
- A. Standards and Procedures Generally 12.147
  - 1. Applicable Rules of Court 12.148
  - 2. Definitions 12.149
  - 3. Court Records Presumed to Be Open 12.150
- B. Procedures for Filing Records Under Seal
  - 1. Court Approval Required 12.151
  - 2. Motion or Application to Seal a Record
    - a. Motion or Application 12.152
    - b. Express Factual Findings Required to Seal Records 12.153
      - (1) Facts Establishing Overriding Interests 12.154
      - (2) Facts Failing to Establish Overriding Interests 12.155
    - c. Service 12.156
  - 3. Lodging of Records 12.157
  - 4. Trial Records Subject to Confidentiality Agreement or Protective Order 12.158
  - 5. Sealing Order
    - a. Content and Scope of Order 12.159
    - b. Procedure on Grant or Denial of Order 12.160
- C. Custody of Sealed Records 12.161
- D. Custody of Voluminous Public Agency Records 12.162
- E. Motion, Application, or Petition to Unseal Records 12.163
  - 1. Who May Move to Unseal Records 12.164
  - 2. Documents Supporting and Opposing Motion 12.165
  - 3. Court Order Unsealing Records 12.166
- F. Request for Delayed Public Disclosure 12.167
- G. In Camera Confidential Proceedings
  - 1. Minutes of Proceedings 12.168
  - 2. Disposition of Examined Records 12.169
XII. FORMS
- A. Moving Party’s Forms
  - 1. Form: Notice of Motion 12.170
  - 2. Form: Memorandum in Support of Motion 12.171
  - 3. Form: Declaration Supporting Motion 12.172
  - 4. Form: Request for Judicial Notice 12.173
  - 5. Form: Application for Order Shortening Time; Order 12.174
  - 6. Form: Proposed Order Shortening Time 12.175
  - 7. Form: Stipulation Extending Time 12.176
- B. Opposing Party’s Forms
  - 1. Form: Memorandum in Opposition to Motion 12.177
  - 2. Form: Declaration Opposing Motion 12.178
- C. Notice of Ruling and Orders
  - 1. Form: Notice of Ruling on Motion 12.179
  - 2. Form: Proposed Order 12.180
  - 3. Form: Application for Order Extending Time 12.181
  - 4. Form: Proposed Order Extending Time 12.182
  - 5. Form: Order 12.183

Ex Parte Motions and Orders to Show Cause

I. INTRODUCTION
- A. Scope of Chapter 13.1
- B. Governing Law 13.2
II. APPLICATION FOR EX PARTE ORDER
- A. Nature 13.3
- B. When Available 13.4
- C. Required Documents 13.5
  - 1. Contents of Application 13.6
  - 2. Declaration Stating Basis for Relief 13.7
  - 3. Declaration Regarding Notice 13.8
  - 4. Contents of Notice and Declaration Regarding Notice 13.9
- D. Time of Notice 13.10
- E. Filing of Ex Parte Application 13.11
- F. Service of Papers 13.12
- G. Appearance Requirements 13.13
- H. Checklist: Procedure for Application for Ex Parte Order 13.14
III. APPLICATION FOR ORDER TO SHOW CAUSE
- A. Nature; When to Use 13.15
- B. Notice of Application 13.16
- C. Checklist: Procedure for Application for Order to Show Cause 13.17
IV. FORMS
- A. Form: Application for Ex Parte Order 13.18
- B. Form: Proposed Ex Parte Order 13.19
- C. Form: Application for Order to Show Cause and Order 13.20

Ascertaining, Joining, and Naming Parties

I. INTRODUCTION
- A. Scope of Chapter 14.1
- B. Governing Law 14.2
II. REAL PARTY IN INTEREST
- A. Requirement; Definition 14.3
- B. Exceptions 14.4
III. CAPACITY TO SUE OR BE SUED 14.5
- A. Individuals Without Capacity 14.6
- B. Entities Without Capacity 14.7
IV. JOINDER
- A. Compulsory Joinder
  - 1. Requirements 14.8
  - 2. Effect of Failure to Join 14.9
  - 3. Procedure 14.10
- B. Permissive Joinder
  - 1. Plaintiffs 14.11
  - 2. Defendants 14.12
V. NAMING PARTICULAR PARTIES
- A. Defendants Sued by Fictitious Names
  - 1. Situations 14.13
  - 2. Fictitious Name Allegation 14.14
  - 3. Need to State Cause of Action 14.15
- B. Individual Doing Business Under Fictitious Name
  - 1. As Plaintiff 14.16
  - 2. As Defendant 14.17
- C. Partnerships; Unincorporated Associations
  - 1. As Plaintiffs 14.18
  - 2. As Defendants 14.19
- D. Corporations 14.20

Complaints

I. INTRODUCTION
- A. Scope of Chapter 15.1
- B. Governing Law 15.2
II. COMPONENTS OF COMPLAINTS
- A. First-Page Format; Caption 15.3
- B. Introductory Clause 15.4
- C. Allegation Paragraphs
  - 1. Paragraphing and Numbering; Headings for Causes of Action and Counts 15.5
  - 2. Incorporating Allegations by Reference 15.6
- D. Demand for Judgment (Prayer)
  - 1. Requirement 15.7
  - 2. Placement; Wording 15.8
  - 3. Personal Injury and Wrongful Death Actions: Statement of Damages 15.9
  - 4. Statement Reserving Right to Punitive Damages 15.10
  - 5. Effect of Prayer on Judgment
    - a. Default Cases 15.11
    - b. Contested Cases 15.12
- E. Subscription 15.13
III. VERIFICATION 15.14
- A. Deciding Whether to Verify 15.15
  - 1. Reasons to Verify 15.16
  - 2. Reasons Not to Verify 15.17
- B. Persons Who May Verify; Verification Forms
  - 1. Plaintiff 15.18
  - 2. Attorney 15.19
  - 3. Other Person 15.20
  - 4. Officer of Corporation or Public Entity 15.21
IV. PLEADING CAUSES OF ACTION
- A. Distinctions: Cause of Action; Count; Remedy; Relief 15.22
- B. Stating Causes of Action Separately 15.23
  - 1. Joinder of Causes of Action 15.24
  - 2. Rule Against Splitting Causes of Action 15.25
- C. Allegations
  - 1. Ultimate Facts 15.26
  - 2. Direct Allegations; Information and Belief 15.27
V. CHOICE AND ELECTION OF REMEDIES
- A. General Considerations 15.28
- B. Tax Considerations 15.29
- C. Election of Remedies 15.30
VI. FILING COMPLAINT
- A. Filing and Serving Complaint and Summons; Fees 15.31
- B. Case Cover Sheet 15.32
- C. If Filing Fee Check Is Returned by Bank 15.33
VII. USING OFFICIAL FORMS 15.34
VIII. FORMS
- A. Form: Sample Complaint 15.35
- B. Judicial Council Official Complaint Forms
  - 1. Form: Complaint—Personal Injury, Property Damage, Wrongful Death (Judicial Council Form PLD-PI-001) 15.36
  - 2. Form: Cause of Action—Motor Vehicle (Judicial Council Form PLD-PI-001(1)) 15.37
  - 3. Form: Cause of Action—General Negligence (Judicial Council Form PLD-PI-001(2)) 15.38
  - 4. Form: Cause of Action—Intentional Tort (Judicial Council Form PLD-PI-001(3)) 15.39
  - 5. Form: Cause of Action—Premises Liability (Judicial Council Form PLD-PI-001(4)) 15.40
  - 6. Form: Cause of Action—Products Liability (Judicial Council Form PLD-PI-001(5)) 15.41
  - 7. Form: Exemplary Damages Attachment (Judicial Council Form PLD-PI-001(6)) 15.42
  - 8. Form: Complaint—Contract (Judicial Council Form PLD-C-001) 15.43
  - 9. Form: Cause of Action—Breach of Contract (Judicial Council Form PLD-C-001(1)) 15.44
  - 10. Form: Cause of Action—Common Counts (Judicial Council Form PLD-C-001(2)) 15.45
  - 11. Form: Cause of Action—Fraud (Judicial Council Form PLD-C-001(3)) 15.46
  - 12. Form: Complaint—Unlawful Detainer (Judicial Council Form UD-100) 15.47
  - 13. Form: Civil Case Cover Sheet (Judicial Council Form CM-010) 15.48

Amending Complaints

I. INTRODUCTION
- A. Scope of Chapter 16.1
- B. Governing Law 16.2
II. OVERVIEW
- A. Reasons to Amend 16.3
- B. Need for Leave of Court; Notice 16.4
- C. Limits on Amendments 16.4A
- D. Limits on Amendments Before and After Filing of Anti-SLAPP Motion 16.4B
- E. Effect on Limitation Periods
  - 1. Statute of Limitations and Failure to Prosecute 16.5
  - 2. Relation-Back Doctrine 16.5A
- F. Prompt Service 16.6
III. FORMS OF WRITTEN AMENDMENTS
- A. Amended Complaint
  - 1. Defined; Uses 16.7
  - 2. Format 16.8
- B. Amendment to Complaint
  - 1. Defined; Uses 16.9
  - 2. Format 16.10
IV. PROCEDURES TO AMEND
- A. Amendment of Course: Before Answer Filed or Demurrer Heard 16.11
- B. Amendment by Stipulation 16.12
- C. Amendment to Correct Mistake or Add or Delete Name of Party 16.13
- D. Substituting True Name for Fictitious Name 16.14
- E. Amendment After Demurrer Sustained 16.15
- F. Oral Motion to Amend; Motions at Trial 16.16
- G. Noticed Motion for Leave to Amend 16.17
V. SUPPLEMENTAL COMPLAINT 16.18
VI. FORMS
- A. Form: Amendment to Complaint 16.19
- B. Form: Stipulation for Filing Amended Complaint or Amendment to Complaint; Order 16.20
- C. Form: Request for Order Allowing Amendment to Complaint 16.21
- D. Form: Order Allowing Amendment to Complaint 16.22
- E. Form: Amendment Substituting True Name for Fictitious Name; Order 16.23
- F. Form: Notice of Motion to Amend Complaint 16.24
- G. Form: Order Allowing Amendment of Complaint 16.25

Service of Summons

I. INTRODUCTION
- A. Scope of Chapter 17.1
- B. Governing Law 17.2
II. OVERVIEW
- A. Relationship Between Service of Process and Jurisdiction 17.3
- B. Requirements for Valid Service 17.4
- C. Effect of Failure to Make Proper Service 17.5
III. PREPARING SUMMONS
- A. Use of Judicial Council Forms 17.6
- B. Use of Attorney-Drafted Forms 17.7
- C. Requirements in Particular Actions 17.8
- D. Additional Requirements for Particular Parties
  - 1. Action Against Corporation or Unincorporated Association 17.9
  - 2. Action Against Fictitiously Named Defendants 17.10
IV. ISSUANCE OF SUMMONS
- A. On Original Complaint 17.11
- B. On Amended or Supplemental Complaint 17.12
- C. Lost Summons 17.13
V. SERVING SUMMONS
- A. Persons Who May Serve Summons 17.14
- B. Fees 17.15
- C. Time for Service 17.16
- D. Persons and Entities on Whom Summons May Be Served
  - 1. Individuals
    - a. Basic Rule 17.17
    - b. Determination of Agency for Purposes of Service 17.18
  - 2. Corporations
    - a. To Serve a Corporation 17.19
    - b. Information Available From Secretary of State 17.20
    - c. Ostensible Corporate Authority 17.21
    - d. General Managers for Corporation 17.22
    - e. Suspended Corporations 17.23
    - f. Service on Secretary of State
      - (1) Criteria for Service on Secretary of State 17.24
      - (2) Court Order Required 17.25
  - 3. Financial Institutions
    - a. California Locations 17.26
    - b. Foreign and International Institutions 17.27
  - 4. Defunct Corporations 17.28
  - 5. Joint Stock Companies 17.29
  - 6. Partnerships and Unincorporated Associations, Including Homeowners Associations 17.30
  - 7. Limited Liability Companies
    - a. Limited Liability Company in Good Standing 17.31
    - b. Foreign Limited Liability Company 17.32
    - c. Dissolved Limited Liability Company 17.33
    - d. Service on the Secretary of State
      - (1) Circumstances Requiring Service on Secretary of State 17.34
      - (2) Court Order Required 17.35
  - 8. Joint Ventures 17.36
  - 9. Public Entities 17.37
  - 10. Minors and Conservatees 17.38
  - 11. Political Candidates 17.39
  - 12. Prisoners 17.40
- E. Manner of Service
  - 1. Within California
    - a. Available Methods 17.41
    - b. Personal Service 17.42
      - (1) Sufficiency of Attempted Delivery 17.43
      - (2) Effect of Concealment 17.44
    - c. Substituted Service
      - (1) On Business and Other Entities 17.45
      - (2) On Natural Persons 17.46
    - d. Service by Mail and Acknowledgment of Receipt
      - (1) Procedure 17.47
      - (2) Form of Notice and Acknowledgment of Receipt 17.48
      - (3) Effect of Execution and Return 17.49
      - (4) Effect of Failure to Respond 17.50
    - e. Service by Publication 17.51
  - 2. Outside California
    - a. Within United States
      - (1) Basic Rule 17.52
      - (2) Service by Mail and Return Receipt 17.53
      - (3) Service as Prescribed by Local Law 17.54
    - b. Outside United States 17.55
  - 3. Unlawful Detainer Actions
    - a. Service by Posting 17.56
    - b. Abandonment 17.57
  - 4. Manner of Service When No Procedure Provided 17.58
- F. Statutory Provisions Outside Jurisdiction and Service of Process Act 17.59
  - 1. Statutes Governing Service on State and Certain State Agencies 17.60
  - 2. Statutes Governing Service in Particular Actions 17.61
VI. FILING PROOF OF SERVICE OF SUMMONS
- A. Requirement of Filing Proof of Service of Summons 17.62
- B. Time for Filing Proof of Service 17.63
- C. Procedure When Original Summons Lost 17.64
- D. Content of Proof of Service 17.65
  - 1. Service Within California 17.66
    - a. Personal or Substituted Service; Service by Mail 17.67
    - b. Service by Publication 17.68
    - c. Service by Posting 17.69
    - d. Service by Other Methods 17.70
  - 2. Service Outside California 17.71
    - a. Personal or Substituted Service, or Other Methods 17.72
    - b. Service by Mail and Return Receipt 17.73
    - c. Service as Prescribed by Court Order 17.74
    - d. Service in Accordance With Foreign Law 17.75
  - 3. Service on Fictitiously Named Defendants 17.76
VII. CHECKLIST: PROCEDURE FOR SERVING SUMMONS ON PARTIES 17.77
VIII. FORMS
- A. Form: Summons (Judicial Council Form SUM-100) 17.78
- B. Form: Proof of Service of Summons (Judicial Council Form POS-010) 17.79
- C. Form: Notice and Acknowledgment of Receipt—Civil (Judicial Council Form POS-015) 17.80
- D. Form: Summons (Joint Debtor) (Judicial Council Form SUM-120) 17.81
- E. Form: Summons—Unlawful Detainer—Eviction (Judicial Council Form SUM-130) 17.82
- F. Form: Summons (Family Law) (Judicial Council Form FL-110) 17.83
- G. Form: Proof of Service of Summons (Family Law—Uniform Parentage—Custody and Support) (Judicial Council Form FL-115) 17.84
- H. Form: Summons (Joinder) (Judicial Council Form FL-375) 17.85
- I. Form: Ex Parte Application for Extension of Time to Serve Pleading and Orders (Judicial Council Form CM-020) 17.86

Service of Papers

I. INTRODUCTION
- A. Scope of Chapter 18.1
- B. Governing Law 18.2
II. OVERVIEW 18.3
III. TIME FOR SERVICE 18.4
- A. Extensions of Time for Mail, Fax, or Electronic Delivery 18.5
- B. When Extensions Do Not Apply 18.6
- C. Effect of Weekends, Holidays 18.7
IV. MANNER OF SERVICE
- A. Service by Mail
  - 1. When Permitted 18.8
  - 2. Procedures 18.9
  - 3. When Service by Mail is Complete 18.10
- B. Service by Express Mail or Overnight Delivery
  - 1. Procedures 18.11
  - 2. When Express Mail Service is Complete 18.12
- C. Personal and Substituted Service 18.13
  - 1. Service on Attorney; Exceptions 18.14
  - 2. Service on Party 18.15
- D. Service and Filing by Facsimile Transmission (Fax)
  - 1. Service by Fax 18.16
  - 2. When Service by Fax Is Complete 18.17
  - 3. Filing by Fax 18.18
    - a. Format of Fax-Filed Documents 18.19
    - b. Filing Through Fax-Filing Agency 18.20
    - c. Direct Fax Filing 18.21
  - 4. Demand for Originals After Fax Service or Filing 18.22
- E. Electronic Service and Filing 18.23
  - 1. Permissive Electronic Service and Filing 18.24
  - 2. Mandatory Electronic Service and Filing
    - a. May Be Required in Specified Actions by Local Rule 18.25
    - b. Exemptions and Opt-Out Provisions From Mandatory Electronic Service and Filing 18.26
  - 3. Electronic Service and Filing May Be Required by Court Order in Complex Cases 18.27
  - 4. Party That Is Required to File Documents Electronically Must Also Serve and Accept Documents Electronically; Exceptions 18.28
  - 5. Filing and Service May Be Direct or Through Electronic Filing Service Provider 18.29
  - 6. Electronic Service 18.30
    - a. When Electronic Service is Complete 18.31
    - b. Consent to Electronic Service
      - (1) Consent of Parties or Other Persons 18.32
        
        (a) Withdrawing Consent 18.32A
      - (2) Consent of Court 18.32B
    - c. Methods of Electronic Service 18.33
    - d. Service of Confidential or Sealed Records 18.33A
    - e. Proof of Electronic Service 18.34
  - 7. Electronic Filing 18.35
    - a. Receipt by the Court 18.36
    - b. §18.37 Filing Fees 18.37
    - c. Format of Electronically Filed Documents 18.38
    - d. Signatures on Electronically Filed Documents and Demand for Originals after Electronic Filing 18.39
  - 8. Electronic Submission of Proposed Orders 18.40
- F. Service by Telegraph 18.41
V. PROOF OF SERVICE
- A. Service by Mail 18.42
- B. Electronic Service or Fax 18.43
- C. Personal or Substituted Service 18.44
VI. FORMS
- A. Form: Declaration of Service by Mail (Documents Deposited in Mail) 18.45
- B. Form: Declaration of Service by Mail (Documents Placed for Collection and Mailing) 18.46
- C. Form: Attorney Certification of Service by Mail (Documents Deposited in Mail) 18.47
- D. Form: Facsimile Transmission Cover Sheet (Fax Filing) (Judicial Council Form MC-005) 18.48
- E. Form: Proposed Order (Cover Sheet) (Judicial Council Form EFS-020) 18.49

Motions to Quash

I. INTRODUCTION
- A. Scope of Chapter 19.1
- B. Governing Law 19.2
II. WHEN TO CHALLENGE JURISDICTION OVER THE PERSON
- A. Motion to Quash Preferable 19.3
- B. If Default Judgment Already Entered
  - 1. Direct Attack 19.4
  - 2. Collateral Attack 19.5
III. MOTION TO QUASH
- A. When Appropriate 19.6
- B. Making the Motion
  - 1. Grounds 19.7
    - a. No Minimum Contacts or Continuing Jurisdiction 19.8
    - b. Ineffective Service of Process 19.9
    - c. Failure to State Cause of Action for Unlawful Detainer 19.10
    - d. Dissolved Corporation 19.11
  - 2. Time for Filing
    - a. Actions Other Than Unlawful Detainer 19.12
    - b. Unlawful Detainer Actions 19.13
  - 3. Effect of Filing 19.14
    - a. Court’s Jurisdiction to Rule on Other Matters 19.15
    - b. Extends Time to Plead 19.16
  - 4. Date for Hearing; Notice 19.17
- C. Opposing the Motion 19.18
- D. Discovery 19.19
- E. The Hearing
  - 1. Burden and Standard of Proof 19.20
  - 2. Proving Jurisdiction in Tort Cases 19.21
  - 3. Evidence 19.22
    - a. The Complaint 19.23
    - b. Declarations 19.24
- F. Sanctions for Bringing Motion to Quash 19.25
- G. Response to Order After Hearing
  - 1. If Motion Denied 19.26
    - a. Petition for Writ of Mandate 19.27
    - b. Other Responses 19.28
  - 2. If Motion Granted 19.29
- H. Attorney Fees 19.29A
IV. CHECKLIST: PROCEDURE FOR CHALLENGING JURISDICTION 19.30

Motions to Change Venue

I. INTRODUCTION
- A. Scope of Chapter 20.1
- B. Governing Law 20.2
II. CHALLENGING VENUE—DESCRIPTION AND USE
- A. Grounds
  - 1. Wrong Court 20.3
  - 2. Convenience of Witnesses 20.4
  - 3. Impartial Trial 20.5
  - 4. No Judge Qualified 20.6
- B. Who May Challenge 20.7
III. PROCEDURES FOR MOVING PARTY
- A. Time to File Motion
  - 1. Wrong Court 20.8
  - 2. Convenience of Witnesses 20.9
  - 3. Impartial Trial 20.10
- B. Required Moving Papers 20.11
  - 1. Notice of Motion 20.12
  - 2. Supporting Declarations 20.13
    - a. Declaration of Residence 20.14
    - b. Declaration Relating to Type of Action 20.15
    - c. Declaration Based on Convenience of Witnesses 20.16
  - 3. Memorandum in Support of Motion 20.17
- C. Effect of Motion 20.18
IV. PROCEDURES FOR RESPONDING PARTY
- A. Counterdeclarations, Countermotions, and Motions to Retransfer 20.19
- B. Evidentiary Showing 20.20
- C. Consistency With Theory of Complaint 20.21
V. HEARING AND DETERMINATION
- A. Burden of Proof 20.22
- B. Effect of Order Granting Motion 20.23
  - 1. Family Law Proceedings 20.23A
- C. Renewal of Motion 20.24
- D. Time to Answer After Order 20.25
VI. TRANSFER OF ACTION
- A. Selection of Court 20.26
- B. Transmission of Papers 20.27
- C. Payment of Costs and Fees
  - 1. Wrong Court Motion 20.28
  - 2. Motion on Other Grounds 20.29
- D. Attorney Fees and Expenses
  - 1. Wrong Court Motion 20.30
  - 2. Motion on Other Grounds 20.31
VII. REVIEW OF ORDERS
- A. Method of Review
  - 1. Superior Court in Other Than Limited Civil Case 20.32
  - 2. Limited Civil Cases 20.33
- B. Standard of Review 20.34
- C. Time to Answer After Review 20.35
VIII. CHECKLIST: PROCEDURE FOR MOTION FOR CHANGE OF VENUE 20.36
IX. FORMS
- A. Form: Notice of Motion for Change of Venue 20.37
- B. Form: Notice of Motion to Retain Venue 20.38
- C. Form: Declaration Supporting Motion for Change of Venue on Wrong Court Grounds 20.39
- D. Form: Declaration by Defendant’s Attorney When Motion Made on Wrong Court Grounds 20.40
- E. Form: Declaration Supporting Motion for Change of Venue for Convenience of Witnesses and Ends of Justice 20.41
- F. Form: Stipulation and Order Changing Venue 20.42

Motions to Stay or Dismiss for Inconvenient Forum

I. INTRODUCTION
- A. Scope of Chapter 21.1
- B. Governing Law 21.2
II. CHARACTERISTICS OF DOCTRINE 21.3
- A. Distinguished From Change of Venue and Jurisdiction 21.4
- B. Statutory Authority; Limitations 21.5
- C. Combining Motion With Challenge to Jurisdiction or With Answer, Demurrer, or Motion to Strike 21.6
III. WHEN APPROPRIATE
- A. Availability of Suitable Alternative Forum 21.7
- B. Factors Considered 21.8
  - 1. Plaintiff’s Residence, Choice of Forum 21.9
  - 2. Defendant’s Residence 21.10
  - 3. Other Factors 21.11
- C. Effect of Federal Law 21.12
- D. Dismissal or Stay 21.13
- E. Order on Just Conditions 21.14
- F. Effect of Contractual Provision 21.15
IV. PROCEDURE
- A. Time to Make Motion
  - 1. Before or After General Appearance 21.16
  - 2. Effect of Making Motion Before Pleading 21.17
- B. Time to Serve and File Papers 21.18
- C. Content of Moving Papers 21.19
- D. Content of Responsive Papers 21.20
- E. Hearing on the Motion; Order 21.21
- F. Effect of Order on Time to File Responsive Pleading or Writ of Mandate 21.22
- G. Review by Writ or Appeal 21.23
V. CHECKLIST: DIAGNOSTIC QUESTIONS 21.24
VI. CHECKLIST: PROCEDURE FOR MOTION TO DISMISS OR STAY FOR INCONVENIENT FORUM 21.25
VII. FORMS
- A. Form: Notice of Motion to Dismiss or Stay Action 21.26
- B. Form: Declaration Supporting Motion to Dismiss or Stay Action 21.27
- C. Form: Request to Take Judicial Notice to Support or Oppose Motion to Dismiss or Stay Action 21.28
- D. Form: Order Dismissing or Staying Action 21.29

Removal to Federal Court

I. INTRODUCTION
- A. Scope of Chapter 22.1
- B. Governing Law 22.2
II. OVERVIEW
- A. Nature of Removal Jurisdiction 22.3
- B. Former Derivative Rule 22.4
- C. Current Nonderivative Rule 22.5
III. REMOVAL OF FEDERAL QUESTION CASES
- A. Authority 22.6
- B. When Is a Federal Question Involved? 22.7
- C. Determining Federal Question Removal Jurisdiction
  - 1. Well-Pleaded Complaint Rule 22.8
  - 2. Federal Defenses Generally Irrelevant 22.9
  - 3. Artful Pleading Doctrine
    - a. Exception to Well-Pleaded Complaint Rule 22.10
    - b. Courts May Look Beyond Complaint for Artful Pleading 22.11
    - c. Defense of Federal Preemption
      - (1) Defense of Federal Preemption Generally Insufficient as Ground for Removal 22.12
      - (2)  Exception: The Complete Preemption Doctrine  22.13
        
        (a)  How Complete Preemption Is Determined  22.14
        
        (b)  Examples of When Complete Preemption Doctrine Applied  22.15
IV. REMOVAL OF DIVERSITY CASES
- A. Diversity Removal Jurisdiction Generally; Jurisdictional Amount 22.16
- B. Plaintiff as Master of Plaintiff’s Complaint
  - 1. In General 22.17
  - 2. Effect of Amendments to Complaint 22.18
  - 3. Effect of Fraudulent Joinder
    - a. Does Not Defeat Diversity 22.19
    - b. Standard Court Applies to Determine if Liability Exists Under State Law 22.20
- C. Defendant’s Burden to Establish Diversity; When Court May Look Beyond Complaint 22.21
- D. Special Rules on Citizenship
  - 1. Individuals 22.22
  - 2. Doe Defendants 22.23
  - 3. Corporations 22.24
  - 4. Partnerships 22.25
  - 5. Joint Ventures 22.26
  - 6. Unincorporated Associations 22.27
  - 7. Aliens 22.28
  - 8. States 22.29
- E. Class Action Fairness Act of 2005 22.29A
V. REMOVAL OF SEPARATE AND INDEPENDENT CLAIMS
- A. State Cases Commenced On or After January 6, 2012 22.29B
- B. State Cases Commenced Before January 6, 2012
  - 1. General Rule 22.30
  - 2. Determining What Constitutes Separate and Independent Claim 22.31
  - 3. Effect of Rule When Federal Question Involved 22.32
  - 4. Applicability of Rule When Diversity of Citizenship Involved 22.33
VI. REMOVAL OF OTHER CLAIMS
- A. Actions Against Foreign States 22.34
- B. Actions Against Federal Officers 22.35
- C. Action Against Military Personnel 22.36
- D. Civil Rights Cases 22.37
- E. Actions Brought Against United States Concerning Property on Which United States Has or Claims Lien 22.38
VII. CROSS-CLAIMS AGAINST PLAINTIFF OR THIRD PARTIES
- A. Generally Removal by Cross-Defendants Prohibited 22.39
- B. Exception: Removal by Third Party Defendant When Separate and Independent Claim Involved 22.40
VIII. PENDENT CLAIM JURISDICTION 22.41
IX. ACTIONS SPECIFICALLY MADE NONREMOVABLE BY STATUTE
- A. Actions Against Railroads 22.42
- B. Actions Against Carriers 22.43
- C. Actions Arising Under State Workers’ Compensation Laws 22.44
- D. Other Nonremovable Actions 22.45
- E. Effect When Actions Made Nonremovable by Statute Are Joined With Otherwise Removable Actions 22.46
X. WHETHER TO SEEK REMOVAL
- A. Removal Discretionary 22.47
- B. Practical Considerations
  - 1. Where Case Will Be Litigated and Tried
    - a. Centralized Location of Federal Courts 22.48
    - b. Possible Venue Change 22.49
  - 2. Pretrial Considerations
    - a. Time to Demand Jury Trial 22.50
    - b. Attorney Time 22.51
    - c. Single Judge Assignment 22.52
    - d. Time to Trial; Trial Date 22.53
    - e. Discovery; Privileges 22.54
    - f. Monetary Sanctions 22.55
    - g. Pleadings; Stipulations 22.56
    - h. Disqualification of Judge 22.57
    - i. Possible Remand of Pendent State Claims 22.58
    - j. Summary Judgment Standards 22.59
    - k. Judicial Arbitration 22.60
  - 3. Trial Considerations
    - a. Jury Composition 22.61
    - b. Juror Voir Dire 22.62
    - c. Evidentiary Considerations
      - (1) Differences Between State and Federal Rules of Evidence 22.63
      - (2) Tax Returns 22.64
    - d. Jury Size; Three-Fourths or Unanimous Verdict 22.65
  - 4. Post Trial; Registering or Entering Judgment Outside State 22.66
XI. REMOVAL TIMING AND PROCEDURES
- A. Time Limitations
  - 1. When Initial Pleading Contains Removable Claim
    - a. 30-Day Rule 22.67
    - b. Receipt of Letter No Longer Starts 30-Day Period 22.68
    - c. Cases Involving Multiple Defendants 22.69
  - 2. When Amended Pleading, Motion, Order, or Other Paper Establishes Right to Removal
    - a. 30-Day Rule 22.70
    - b. Unequivocal Action Creating Removal Jurisdiction Required 22.71
    - c. Plaintiff’s Voluntary Act Required for Change Rendering Case Removable 22.72
  - 3. One-Year Limitation Period Beyond Which Removal Prohibited in Diversity Cases
    - a. Cases Commenced in State Court On and After January 6, 2012 22.72A
    - b. Cases Commenced in State Court Before January 6, 2012 22.73
  - 4. Waiver of Right to Remove by Acts Done in State Court Within 30-Day Period 22.74
  - 5. Effect of Failure to Remove Within Statutory Period; Waiver of Objection 22.75
- B. Procedure
  - 1. Preparation of Notice of Removal; Content 22.76
    - a. Requirement That All Defendants Join in Notice of Removal 22.77
    - b. Exceptions to Requirement of Joinder by All Defendants
      - (1) Nonserved Defendants 22.78
      - (2) Formal or Nominal Parties 22.79
      - (3) Fraudulently Joined Defendants 22.80
      - (4) Federal Claims Joined With Unrelated State Claims (Cases Commenced in State Court On and After January 12, 2012) 22.80A
      - (5) Separate and Independent Claims (Cases Commenced in State Court Before January 12, 2012) 22.81
      - (6) Federal Officers 22.82
    - c. Specifying Exceptions to Joinder of Defendants Requirement In Notice of Removal 22.83
    - d. Plaintiff’s Waiver of Defect That All Defendants Not Joined in Notice of Removal 22.84
  - 2. Filing Notice of Removal and Other Requirements
    - a. Timely Filing in Federal Court; Automatic Removal 22.85
    - b. Other Papers to Be Filed With Notice in Federal Court 22.86
    - c. Prompt Written Notice to Adverse Parties 22.87
    - d. Promptly File Copy of Notice in State Court 22.88
  - 3. Amending Notice of Removal 22.89
  - 4. Removability Determined at Time Notice Filed 22.90
  - 5. Proceeding in Federal Court After Removal; Avoiding Waiver of Jury Trial 22.91
  - 6. Objecting to Removal
    - a. Noticing Motion to Remand; Time Limitation 22.92
    - b. Burden of Removability Lies With Moving Party; Costs and Attorney Fees 22.93
    - c. Reviewability of Court Order
      - (1) When Remand Granted; Multiple Proceedings 22.94
      - (2) When Remand Denied 22.95
    - d. Time to Respond to Complaint After Remand 22.96
XII. CHECKLIST: PROCEDURE FOR EVALUATING REMOVAL OF ACTION TO FEDERAL COURT 22.97
XIII. FORMS
- A. Form: Notice of Removal 22.98
- B. Form: Joinder in Notice of Removal 22.99

Demurrers

I. INTRODUCTION
- A. Scope of Chapter 23.1
- B. Law Governing Demurrers 23.2
II. DEMURRERS DESCRIBED
- A. Use of Demurrers 23.3
- B. General and Special Demurrers Distinguished 23.4
- C. Availability of Demurrers 23.5
- D. Tactical Considerations 23.6
- E. Alternatives to Demurrer 23.7
  - 1. Answer 23.8
  - 2. Motion to Strike 23.9
  - 3. Anti-SLAPP Motion 23.10
  - 4. Motion for Judgment on Pleadings 23.11
  - 5. Motion for Summary Judgment or Summary Adjudication 23.12
  - 6. [Deleted] 23.13
  - 7. Discovery 23.14
  - 8. Objection to Evidence 23.15
III. DEMURRER TO COMPLAINT
- A. Timing for Demurrer
  - 1. When to File Demurrer; Meet and Confer Requirement 23.16
  - 2. Avoiding Default 23.17
  - 3. Consider Filing Answer Simultaneously 23.18
- B. Preparing Demurrer
  - 1. Multiple Party Variations 23.19
  - 2. Stating Grounds Separately 23.20
  - 3. Demurring to All or Part of Complaint 23.21
  - 4. Requesting Judicial Notice 23.22
- C. Grounds For Demurrer 23.23
  - 1. Matters on Which Grounds Based 23.24
  - 2. Grounds That Are Not Waived 23.25
- D. Stating Specific Grounds; Examples 23.26
  - 1. Failure to State Facts Sufficient to Constitute Cause of Action 23.27
    - a. Barred by Statute of Limitations 23.28
    - b. Defenses Appearing on Face of Complaint 23.29
  - 2. No Jurisdiction of Subject Matter 23.30
  - 3. Lack of Legal Capacity to Sue 23.31
  - 4. Another Action Pending 23.32
  - 5. Defect or Misjoinder of Parties
    - a. Defect 23.33
    - b. Misjoinder 23.34
  - 6. Uncertain, Ambiguous, or Unintelligible 23.35
  - 7. Uncertain Whether Contract Written, Oral, or Implied by Conduct 23.36
  - 8. No Certificate of Merit in Action for Malpractice of Architect, Professional Engineer, or Land Surveyor 23.37
- E. Supporting Memorandum; Examples 23.38
- F. Notice of Hearing; Service 23.39
- G. Declaration Regarding Meet and Confer Efforts 23.39A
IV. DEMURRER TO CROSS-COMPLAINT
- A. Similarity to Demurrer to Complaint 23.40
- B. Timing For Demurrer to Cross-Complaint 23.41
- C. Tactical Considerations 23.42
V. DEMURRER TO ANSWER
- A. Multiple Party Variations 23.43
- B. Grounds For Demurrer to Answer 23.44
  - 1. Failure to State Facts Sufficient to Constitute Defense 23.45
  - 2. Uncertainty 23.46
  - 3. Uncertain Whether Contract Written or Oral 23.47
- C. Timing for Demurrer to Answer 23.48
- D. Tactical Considerations 23.49
VI. RESPONSIVE PROCEDURES
- A. Amending Pleading Before Hearing 23.50
- B. Filing Opposition Papers 23.51
VII. DEMURRING PARTY’S REPLY PAPERS 23.52
VIII. HEARING AND COURT RULING
- A. Hearing 23.53
- B. Ruling 23.54
  - 1. Leave to Amend 23.55
  - 2. Decision or Order 23.56
    - a. Time to Answer or Amend 23.57
    - b. Statement of Grounds 23.58
  - 3. Notice of Decision 23.59
IX. POSTHEARING PROCEDURES
- A. Motion for Reconsideration 23.60
- B. Demurrer to Complaint or Cross-Complaint
  - 1. If Demurrer Overruled
    - a. Answer 23.61
    - b. Default and Appeal 23.62
    - c. Writ of Prohibition 23.63
  - 2. If Demurrer Sustained With Leave to Amend
    - a. Amendment 23.64
    - b. Voluntary Dismissal 23.65
    - c. Demurrer or Answer After Amended Complaint Filed 23.66
    - d. Appeal After Dismissal 23.67
  - 3. If Demurrer Sustained Without Leave to Amend
    - a. Writ of Mandate 23.68
    - b. Dismissal and Appeal 23.69
- C. Demurrer to Answer
  - 1. If Demurrer Overruled 23.70
  - 2. If Demurrer Sustained 23.71
X. DIAGNOSTIC QUESTIONS
- A. Checklist: Defendant’s Diagnostic Questions 23.72
- B. Checklist: Plaintiff’s Diagnostic Questions 23.73
XI. CHECKLIST: PROCEDURE FOR DEMURRER TO COMPLAINT 23.74
XII. FORMS
- A. Form: Notice of Hearing on Demurrer to Complaint 23.75
- B. Form: Demurrer to Complaint 23.76
- C. Form: Demurrer to Cross-Complaint 23.77
- D. Form: Demurrer to Answer 23.78
- E. Form: Notice of Decision Sustaining or Overruling Demurrer to Complaint 23.79

Motions to Strike

I. INTRODUCTION
- A. Scope of Chapter 24.1
- B. Governing Law 24.2
II. DESCRIPTION AND USE
- A. Function; Motion to Strike Compared With Demurrer 24.3
- B. Grounds
  - 1. In Unlimited Civil Cases 24.4
  - 2. In Limited Civil Cases 24.5
  - 3. Examples of Grounds for Motion to Strike 24.6
III. PROCEDURES
- A. Meet and Confer Requirement 24.6A
- B. Timing
  - 1. When to File Against Complaint or Cross-Complaint 24.7
  - 2. When to File Against Answer 24.8
  - 3. Extensions by Stipulation or Court Order 24.9
  - 4. Effect of Trial Court Delay Reduction Act 24.10
  - 5. Motion to Strike Must Be Filed and Heard at Same Time as Demurrer 24.11
  - 6. Setting Time of Hearing; Service 24.12
- C. Drafting the Motion 24.13
  - 1. Notice of Motion 24.14
  - 2. Declaration Regarding Meet and Confer 24.14A
  - 3. Judicial Notice 24.15
- D. Responsive Procedures
  - 1. Amending Pleading Before Hearing 24.15A
  - 2. Opposing the Motion 24.15B
- E. Moving Party’s Reply to Opposition Papers 24.15C
IV. HEARING AND COURT RULING
- A. Hearing; Judge’s Ruling on Motion to Strike 24.16
- B. Notice of Ruling 24.17
V. PROCEDURES AFTER RULING
- A. Motion Granted
  - 1. Time to Amend 24.18
  - 2. Appellate Review 24.19
- B. Motion Denied
  - 1. Time to Answer 24.19A
  - 2. Appellate Review 24.19B
- C. Prevailing Party’s Response to Amended Pleading 24.20
VI. CHECKLIST: DIAGNOSTIC QUESTIONS 24.21
VII. CHECKLIST: PROCEDURE FOR MOTION TO STRIKE 24.22
VIII. FORMS
- A. Form: Notice of Motion to Strike 24.23
- B. Form: Order Granting Motion to Strike 24.24

24A

Anti-SLAPP Motions

Michael C. Denison

Hon. Fumiko H. Wasserman

I. INTRODUCTION 24A.1
- A. Scope of Chapter 24A.2
- B. Governing Law 24A.3
II. USE OF ANTI-SLAPP MOTION
- A. Activities Protected Under Anti-SLAPP Statute 24A.4
- B. Pleadings Anti-SLAPP Motion May Attack 24A.5
- C. Persons Protected By Anti-SLAPP Statute 24A.6
- D. Advantages and Disadvantages of Anti-SLAPP Motions
  - 1. Benefits of Filing Anti-SLAPP Motion 24A.7
  - 2. Risks of Filing Anti-SLAPP Motion 24A.8
- E. Comparing Anti-SLAPP Motion to Other Possible Motions
  - 1. Summary Judgment Motion 24A.9
  - 2. Other Alternative Motions 24A.10
III. CAUSES OF ACTION EXEMPT FROM ANTI-SLAPP MOTION 24A.11
- A. Public Enforcement Action Exemption 24A.12
- B. Public Interest Exemption 24A.13
- C. Commercial Speech Exemption 24A.14
- D. When Anti-SLAPP Motion Is Available Despite Exemption 24A.15
IV. SHOWING REQUIRED FOR ANTI-SLAPP STATUTE
- A. Two-Part Test 24A.16
- B. Defendant’s Burden of Proof (Part One of Anti-SLAPP Test) 24A.17
  - 1. Does the Cause of Action “Arise From” Defendant’s Exercise of Constitutional Free Speech or Petition Rights? 24A.18
  - 2. Is Plaintiff Challenging an Exercise of Defendant’s Constitutional Free Speech or Petition Rights? 24A.19
    - a. Illegal Activity Is Not Protected Activity 24A.19A
    - b. Is the Cause of Action Based on a Written or Oral Statement Made in a Legislative, Executive, Judicial, or Other Official Proceeding? 24A.20
    - c. Is the Cause of Action Based on a Written or Oral Statement Made in Connection With an Issue Under Consideration or Review by a Legislative, Executive, or Judicial Body or Another Official Proceeding Authorized by Law? 24A.21
    - d. Is the Cause of Action Based on a Written or Oral Statement Made in a Place Open to the Public or a Public Forum in Connection With a Public Issue? 24A.22
    - e. Is the Cause of Action Based on Defendant’s Conduct in Furtherance of an Exercise of Constitutional Petition or Free Speech Rights in Connection With an Issue of Public Interest? 24A.23
  - 3. Mixed Causes of Action 24A.23A
  - 4. Causes of Action Frequently Challenged by Anti-SLAPP Motion 24A.23B
    - a. Abuse of Process 24A.23C
    - b. Breach of Fiduciary Duty 24A.23D
    - c. Breach of Contract or Covenant of Good Faith and Fair Dealing 24A.23E
    - d. Declaratory/Injunctive Relief 24A.23F
    - e. Defamation 24A.23G
    - f. Fraud 24A.23H
    - g. Invasion of Privacy 24A.23I
    - h. Malicious Prosecution 24A.23J
  - 5. Defendant Need Not Show Intent or Chilling Result 24A.24
  - 6. Defendant Should Present Evidence Supporting Any Affirmative Defenses 24A.25
- C. Plaintiff’s Burden of Proof (Part Two of Anti-SLAPP Test) 24A.26
  - 1. Plaintiff Must Make Prima Facie Showing on Merits 24A.27
    - a. Examples of Cases Holding That Plaintiff Met Its Burden 24A.28
    - b. Examples of Cases Holding That Plaintiff Did Not Meet Its Burden 24A.29
  - 2. Plaintiff Must Present Admissible Evidence 24A.30
  - 3. Litigation Privilege May Preclude Plaintiff’s Ability to Prevail 24A.31
  - 4. Plaintiff Must Support Opposition With Declarations 24A.32
V. MOVING PARTY’S PROCEDURES 24A.33
- A. Evaluating the Pleadings 24A.34
- B. Determining Discovery Needs
  - 1. Discovery Is Stayed 24A.35
    - a. Moving Party Must File Motion for Additional Discovery 24A.36
    - b. Moving Party Must Show Good Cause
      - (1) Good Cause Defined 24A.37
      - (2) Cases Addressing Good Cause 24A.38
  - 2. Moving Party Should Seek Order Shortening Time 24A.39
- C. Timing Requirements for Anti-SLAPP Motion
  - 1. When to File Anti-SLAPP Motion 24A.40
    - a. Court May Permit Late Filing 24A.41
    - b. Timing After Amended Complaint, Remand, or Transfer 24A.42
    - c. Coordination With Answer 24A.43
  - 2. When to Serve Anti-SLAPP Motion 24A.44
  - 3. When to File Proof of Service 24A.45
  - 4. When to Reserve Hearing Date 24A.46
- D. Moving Papers 24A.47
  - 1. Notice of Motion and Motion to Strike 24A.48
    - a. Format of Notice and Motion 24A.49
    - b. Supporting Memorandum 24A.50
    - c. Page Limits 24A.51
  - 2. Supporting Documents 24A.52
  - 3. Factual Declarations
    - a. Declarations Identifying Witnesses 24A.53
    - b. Declarations re Hearing Date Beyond 30 Days From Notice 24A.54
    - c. Exhibits 24A.55
  - 4. Requests for Judicial Notice 24A.56
  - 5. Copies of Non-California and Recent Cases 24A.57
  - 6. Proposed Order 24A.58
  - 7. Anticipate Challenges Contained in Plaintiff’s Opposition Papers 24A.59
    - a. Procedural Challenges 24A.60
    - b. Evidentiary Challenges 24A.61
    - c. Substantive Challenges 24A.62
- E. Report Filing of Motion to Judicial Council 24A.63
- F. Prepare Reply to Opposition Papers
  - 1. Timing for Reply 24A.64
  - 2. Content of Reply 24A.65
    - a. Procedural Challenges to Opposition 24A.66
    - b. Evidentiary Challenges to Opposition 24A.67
    - c. Substantive Challenges to Opposition 24A.68
  - 3. Moving for Additional Discovery 24A.69
  - 4. Format of Reply Papers 24A.70
  - 5. Filing and Service of Reply Papers 24A.71
VI. OPPOSING PARTY’S PROCEDURES
- A. Gathering Evidence to Oppose Motion 24A.72
- B. Consider Challenges to Moving Papers 24A.73
- C. Prepare Opposition Papers 24A.74
  - 1. Timing of Service and Filing of Opposition Papers 24A.75
  - 2. Service Method for Opposition Papers 24A.76
- D. Consider Effect of Complaint’s Dismissal
  - 1. If Before Hearing on Anti-SLAPP Motion 24A.77
  - 2. If Before Filing of Anti-SLAPP Motion 24A.78
- E. Reporting Filing of Motion to Judicial Council 24A.79
VII. RECOVERING ATTORNEY FEES ON ANTI-SLAPP MOTION
- A. Obtaining Attorney Fees
  - 1. Who Is Entitled to Attorney Fees?
    - a. Successful Defendant Has Mandatory Right to Attorney Fees 24A.80
      - (1) When Challenged Cause of Action Is Dismissed Before Hearing 24A.81
      - (2) When Complaint Is Dismissed Before Anti-SLAPP Motion Filed 24A.82
    - b. Successful Plaintiff May Be Entitled to Attorney Fees as Sanction 24A.83
      - (1) Example of Fees Awarded to Plaintiff 24A.84
      - (2) Example of Fees Denied to Plaintiff 24A.85
    - c. Prevailing Defendant Represented Pro Bono Is Entitled to Attorney Fees 24A.86
    - d. Attorney Representing Self Is Not Entitled to Attorney Fees 24A.87
  - 2. Methods for Recovering Attorney Fees 24A.88
    - a. Requesting Fees in Moving Papers 24A.89
    - b. Requesting Fees in Memorandum of Costs 24A.90
    - c. Requesting Fees in a Separate Motion
      - (1) Declaration Must Accompany Motion for Attorney Fees 24A.91
      - (2) Motion for Attorney Fees Must Be Filed Within Time for Appeal 24A.92
- B. Determining Amount of Attorney Fees
  - 1. Amount of Fees Must Be Reasonable 24A.93
  - 2. Lodestar Adjustment Method Applies 24A.94
  - 3. Fees Limited to Work on Anti-SLAPP Motion 24A.95
  - 4. Fees Reduced for Lack of Complete Success on Motion 24A.96
  - 5. Against Whom Attorney Fees Can Be Awarded 24A.97
- C. Appealing an Attorney Fee Award 24A.98
  - 1. Appeal Does Not Automatically Stay Fee Award 24A.99
  - 2. Appellate Fees Are Authorized 24A.100
VIII. HEARING AND COURT RULING ON ANTI-SLAPP MOTION
- A. Before Hearing
  - 1. Obtaining Hearing Date 24A.101
  - 2. Arranging for Court Reporter 24A.102
  - 3. Checking for Tentative Ruling 24A.103
  - 4. Requesting Oral Argument 24A.104
  - 5. Preparing for Oral Argument 24A.105
- B. Court’s Ruling
  - 1. Obtaining Court’s Ruling 24A.106
  - 2. No Leave to Amend 24A.107
- C. Prepare Court Order and Judgment After Hearing 24A.108
  - 1. Timing and Procedure for Proposed Order
    - a. Deadline for Prevailing Party to Mail or Deliver Proposed Order 24A.109
    - b. Deadline for Opposing Party to Respond to Proposed Order 24A.110
  - 2. Contents of Proposed Order 24A.111
    - a. If Motion Is Granted 24A.112
      - (1) If Granted for All Causes of Action 24A.113
      - (2) If Granted for Some But Not All Causes of Action 24A.114
    - b. If Motion Is Denied 24A.115
IX. CHALLENGING THE RULING ON ANTI-SLAPP MOTION
- A. If Anti-SLAPP Motion Is Granted
  - 1. Plaintiff May Move for Reconsideration 24A.116
  - 2. Plaintiff May Seek Relief Under CCP §473 24A.117
  - 3. Plaintiff May Appeal Ruling 24A.118
- B. If Anti-SLAPP Motion Is Denied
  - 1. Defendant May Move for Reconsideration 24A.119
  - 2. Defendant May Appeal Ruling 24A.120
  - 3. Defendant May Seek Writ Relief 24A.121
X. ANTI-SLAPP MOTIONS IN SLAPPBACK CASES
- A. SLAPPback Defined 24A.122
- B. When Anti-SLAPP Motion Is Available in SLAPPback 24A.123
  - 1. In Malicious Prosecution Actions 24A.124
  - 2. In Abuse of Process Actions 24A.125
- C. When Anti-SLAPP Motion Is Not Available in SLAPPback
  - 1. When Underlying Cause of Action Is Illegal as Matter of Law 24A.126
  - 2. When SLAPPback Is Filed by Public Entity 24A.127
- D. Special Rules Applicable to Anti-SLAPP Motions in SLAPPback 24A.128
  - 1. Timing for Anti-SLAPP Motion in SLAPPback
    - a. Time for Filing Motion 24A.129
    - b. Time for Scheduling Hearing 24A.130
  - 2. Recovering Attorney Fees on Anti-SLAPP Motion in SLAPPback
    - a. Defendant May Not Recover Fees on Anti-SLAPP Motion in SLAPPback 24A.131
    - b. Plaintiff May Recover Fees on Opposing Anti-SLAPP in SLAPPback as Sanction 24A.132
  - 3. Challenging Ruling on Anti-SLAPP Motion in SLAPPback 24A.133
XI. CHECKLIST TO DETERMINE IF ANTI-SLAPP STATUTE APPLIES 24A.134
XII. FORMS
- A. Form: Anti-SLAPP Motion and Supporting Papers 24A.135
- B. Form: Declaration Example 1 24A.136
- C. Form: Declaration Example 2 24A.137
- D. Form: Declaration Example 3 24A.138
- E. Form: Request for Judicial Notice 24A.139
- F. Form: Proposed Order 24A.140
- G. Form: Notice to Judicial Council 24A.141

Answers

I. INTRODUCTION
- A. Scope of Chapter 25.1
- B. Governing Law 25.2
II. DESCRIPTION AND USE
- A. Purpose and Function of Answer 25.3
  - 1. Due Process Considerations 25.4
  - 2. Corporate Defendants 25.5
- B. Effect of Failure to File Answer 25.6
- C. Effect of Particular Defects in Answer
  - 1. Failure to Deny “Material” Allegation 25.7
    - a. Material Allegations Not Denied Are Deemed Admitted 25.8
    - b. Exception: Subject Matter Jurisdiction 25.9
  - 2. Failure to Assert Defense 25.10
  - 3. Defective Denial 25.11
  - 4. Affirmative Admission 25.12
  - 5. Failure to Verify Answer When Required 25.13
III. FORMAT
- A. Drafting: Formal Aspects
  - 1. Caption; Opening Paragraph 25.14
    - a. Identification of Answering Party 25.15
    - b. Multiple Party Litigation 25.16
  - 2. Body of Answer 25.17
    - a. Denials 25.18
    - b. Defenses 25.19
    - c. Prayer 25.20
    - d. Date; Subscription 25.21
  - 3. Incorporation by Reference 25.22
  - 4. Verification 25.23
    - a. Limited Civil Cases 25.24
    - b. Corporate Defendant 25.25
    - c. Public Entity 25.26
    - d. Form 25.27
    - e. Who Verifies 25.28
- B. Judicial Council Forms 25.29
IV. DENIALS 25.30
- A. General Denial 25.31
  - 1. Not Permitted if Complaint Verified 25.32
  - 2. Exception for Limited Civil Cases 25.33
  - 3. Judicial Council Form 25.34
    - a. Mandatory When Disputed Amount Is Less Than $1000 25.35
    - b. Limiting a General Denial 25.36
- B. Specific Denials
  - 1. Required if Complaint Verified 25.37
    - a. Denial of Specific Lines or Paragraphs 25.38
    - b. Paragraph-by-Paragraph Denial 25.39
    - c. Specifically Admitting Particular Allegations and Denying Others 25.40
    - d. Denial by Affirmative Statement 25.41
  - 2. Avoiding Ambiguous Denials
    - a. “Negative Pregnant” 25.42
    - b. Conjunctive Denial 25.43
- C. Denials on Information and Belief or Lack of Information or Belief
  - 1. Limitation on Use 25.44
    - a. Improper If Defendant Has Actual or Presumed Knowledge 25.45
    - b. Improper in Matters of Public Record 25.46
  - 2. Sample Language
    - a. Denial Based on Information and Belief 25.47
    - b. Denial Based on Lack of Information or Belief 25.48
V. DEFENSES
- A. Description and Use
  - 1. “New Matter” 25.49
  - 2. Answer to Cross-Complaint 25.50
  - 3. Defenses Pleaded in Answer Are Deemed Denied 25.51
  - 4. Effect of Not Pleading Defense: Waiver 25.52
- B. Pleading Inconsistent Defenses
  - 1. Right to Plead 25.53
  - 2. Defenses Must Be Separately Stated 25.54
  - 3. Truthful Pleading Limitation 25.55
- C. Defenses That Can Be Raised by Demurrer
  - 1. Answer May Raise Demurrable Issues 25.56
  - 2. Effect of Failure to Raise Objection in Answer or Demurrer 25.57
- D. Pleading Requirements
  - 1. Fact Pleading Required 25.58
    - a. Pleading Defenses on Official Forms 25.59
    - b. Format 25.60
  - 2. Identification of Defenses 25.61
- E. Particular Defenses
  - 1. Statute of Limitations
    - a. Pleading Requirements 25.62
      - (1) Specific Reference to Appropriate Limitations Period 25.63
      - (2) Effect of Defective Pleading of Limitations Defense 25.64
    - b. As Defense to Cross-Complaint 25.65
  - 2. Plaintiff’s Contributory Negligence or Comparative Negligence 25.66
  - 3. Assumption of Risk 25.67
  - 4. Mistake, Fraud, Duress, and Undue Influence 25.68
  - 5. Estoppel, Waiver, Laches, and Unclean Hands 25.69
  - 6. Statute of Frauds 25.70
  - 7. Purported Contract: Illegal or Otherwise Void 25.71
    - a. Contract Conditions Precedent or Subsequent 25.72
    - b. Illegality of Contract 25.73
  - 8. Payment Under Contract 25.74
  - 9. Mitigation of Damages (Wrongful Termination Actions) 25.75
  - 10. Defenses to Common Counts 25.76
  - 11. Defense of Setoff
    - a. Pleading Requirements 25.77
    - b. Setoffs as Allegation of Cross-Complaint 25.78
  - 12. Absence of Elements of a Claim for Negligence 25.79
  - 13. Absence of Elements of Particular Intentional Torts 25.80
  - 14. Defendant’s Title as Defense in Ejectment and Quiet Title Property Actions 25.81
  - 15. Denying Plaintiff’s Possession in Actions for Recovery of Personal Property 25.82
  - 16. Excuse for Nonperformance of Contract 25.83
  - 17. Discharge of Liability: Release, Novation, and Accord and Satisfaction 25.84
  - 18. Exclusive Remedy in Alternative Forum 25.85
  - 19. Public Entity and Employee Defenses 25.86
VI. FILING AND SERVICE
- A. Time for Filing 25.87
  - 1. Filing After Ruling on Demurrer 25.88
  - 2. Filing After Other Motions Challenging Action Are Heard 25.89
- B. Extending Time by Stipulation or Order 25.90
  - 1. Ex Parte Application Seeking Extension 25.91
  - 2. Filing Late Answer 25.92
  - 3. Request for Entry of Default 25.93
    - a. Default Judgment 25.94
    - b. Application for Relief From Default Judgment 25.95
- C. Manner of Service 25.96
VII. AMENDED AND SUPPLEMENTAL ANSWERS
- A. Amendment 25.97
  - 1. Amended Answer 25.98
  - 2. Amendment to Answer 25.99
- B. Procedures for Amendment
  - 1. Amendment “Of Course” 25.100
  - 2. Correcting Mistakes 25.101
  - 3. After Demurrer Sustained 25.102
  - 4. Oral Motion to Amend 25.103
  - 5. Amendment on Noticed Motion With Leave of Court 25.104
  - 6. By Stipulation of Parties 25.105
- C. Supplemental Answer 25.106
VIII. CHECKLIST: DIAGNOSTIC QUESTIONS 25.107
IX. FORMS
- A. Form: Stipulation Extending Time to Respond to Complaint; Order 25.108
- B. Form: Ex Parte Application for Extension of Time to Respond to Complaint; Order 25.109
- C. Form: Unverified Answer 25.110
- D. Form: Verified Answer 25.111
- E. Form: Verification of Answer 25.112
- F. Form: Amendment to Answer 25.113
- G. Motion to File Amended Answer
  - 1. Form: Notice of Motion 25.114
  - 2. Form: Memorandum in Support of Motion 25.115
  - 3. Form: Declaration 25.116
  - 4. Form: Order 25.117
- H. Judicial Council Forms
  - 1. Form: General Denial (Judicial Council Form PLD-050) 25.118
  - 2. Form: Answer—Personal Injury, Property Damage, Wrongful Death (Judicial Council Form PLD-PI-003) 25.119
  - 3. Form: Answer—Contract (Judicial Council Form PLD-C-010) 25.120
  - 4. Form: Answer—Unlawful Detainer (Judicial Council Form UD-105) 25.121

Cross-Complaints

I. INTRODUCTION
- A. Scope of Chapter 26.1
- B. Governing Law 26.2
II. OVERVIEW
- A. Nature and Function of Cross-Complaint 26.3
  - 1. Independent Cause of Action 26.4
  - 2. Similarity to Complaint 26.5
- B. Who May File 26.6
III. COMPULSORY AND PERMISSIVE CROSS-COMPLAINTS DISTINGUISHED
- A. Compulsory Cross-Complaint
  - 1. Compulsory if Related Cause of Action 26.7
  - 2. Exceptions 26.8
    - a. No Personal Jurisdiction Over Defendant 26.9
    - b. Nonappearing Defendant 26.10
    - c. Actions Not Maintainable 26.11
    - d. Another Action Pending 26.12
    - e. Special Proceedings 26.13
    - f. Small Claims 26.14
    - g. Declaratory Relief 26.15
- B. Permissive Cross-Complaint
  - 1. Against Complaining Party
    - a. General Rule 26.16
    - b. When Complaining Party Is Assignee 26.17
  - 2. Against Noncomplaining Party 26.18
  - 3. Joinder
    - a. Parties 26.19
    - b. Causes of Action 26.20
- C. When Court May Sever 26.21
IV. RESTRICTIONS ON USE OF CROSS-COMPLAINTS
- A. Summary Proceedings 26.22
- B. Eminent Domain Proceedings 26.23
- C. Statute of Limitations; Setoff in Answer 26.24
V. TACTICAL CONSIDERATIONS
- A. Compulsory Cross-Complaint 26.25
- B. Permissive Cross-Complaint 26.26
- C. Cross-Complaint for Indemnity 26.27
- D. Cross-Complaint Changing Jurisdictional Classification of Case 26.28
- E. Limitation on Voluntary Dismissal of Action 26.29
VI. PROCEDURES
- A. Drafting Cross-Complaint
  - 1. Format 26.30
    - a. Caption 26.31
    - b. Form: Introductory Clause 26.32
    - c. Allegations 26.33
    - d. Demand for Relief (Prayer) 26.34
    - e. Subscription 26.35
    - f. Verification 26.36
  - 2. Optional Judicial Council Forms 26.37
    - a. Cross-Complaint: Personal Injury, Property Damage, Wrongful Death 26.38
    - b. Cross-Complaint: Contract 26.39
    - c. Causes of Action 26.40
    - d. Exemplary Damages Attachment 26.41
    - e. Attachment of Nonform Causes of Action 26.42
  - 3. Special Rule: Small Claims Courts 26.43
- B. Filing
  - 1. Time Requirements
    - a. Cross-Complaint Against Plaintiff or Cross-Complainant 26.44
    - b. Cross-Complaint Against Someone Other Than Plaintiff or Cross-Complainant 26.45
  - 2. Where to File 26.46
  - 3. Filing Fees 26.47
  - 4. Motion for Leave to File Cross-Complaint 26.48
  - 5. Effect of Statute of Limitations 26.49
- C. Service
  - 1. Serve Existing Parties by Mail 26.50
  - 2. Serve Summons and Other Pleadings on New Parties 26.51
  - 3. Delay in Service Will Not Prevent Trial-Setting 26.52
- D. Defensive Procedures
  - 1. Responses to Cross-Complaint 26.53
  - 2. Special Answer by Third Party Defendant 26.54
  - 3. Cross-Defendant’s Cross-Complaint 26.55
VII. CHECKLIST: DIAGNOSTIC QUESTIONS 26.56
VIII. CHECKLIST: PROCEDURE FOR PREPARING CROSS-COMPLAINT 26.57
IX. FORMS
- A. Motion for Leave to File Cross-Complaint
  - 1. Form: Notice of Motion for Leave to File Cross-Complaint 26.58
  - 2. Form: Sample Declaration Supporting Motion for Leave to File Cross-Complaint 26.59
- B. Form: Order Granting Leave to File Cross-Complaint 26.60
- C. Form: Summons—Cross-Complaint (Judicial Council Form SUM-110) 26.60A
- D. Form: Cross-Complaint—Personal Injury, Property Damage, Wrongful Death (Judicial Council Form PLD-PI-002) 26.61
- E. Form: Complaint—Contract (Judicial Council Form PLD-C-001) 26.62

Motions for Judgment on the Pleadings

I. INTRODUCTION
- A. Scope of Chapter 27.1
- B. Governing Law 27.2
II. DETERMINING WHETHER TO MAKE THE MOTION
- A. Description 27.3
- B. Other Procedures Compared
  - 1. General Demurrer
    - a. Time Limitations for Motion 27.4
    - b. When Demurrer Should Be Filed 27.5
  - 2. Motion to Strike 27.6
  - 3. Summary Judgment 27.7
- C. Effect of Motion; Timing
  - 1. Before Trial 27.8
  - 2. During Trial 27.9
III. PROCEDURES
- A. Meet and Confer Requirement 27.9A
- B. Drafting the Motion
  - 1. Grounds 27.10
  - 2. Supporting Papers 27.11
    - a. Declaration Regarding Meet and Confer 27.11A
  - 3. Request for Judicial Notice 27.12
  - 4. Filing and Service 27.13
- C. Responsive Procedures
  - 1. Amending Pleading Before Hearing 27.13A
  - 2. Opposing the Motion 27.13B
- D. Reply Papers 27.14
- E. Attending the Hearing 27.15
IV. COURT RULING
- A. Guiding Principles
  - 1. Generally Only Allegations in Pleading or Matters Judicially Noticed May Be Considered 27.16
  - 2. Allegations Must Be Taken to Be True 27.17
  - 3. Leave to Amend Is Routinely Granted: Failure to Grant Considered Abuse of Discretion 27.18
  - 4. Right to Amend Is Not Unlimited 27.19
- B. Order 27.20
V. PROCEDURES AFTER COURT RULING
- A. Denial of Motion for Judgment on Pleadings 27.21
- B. Motion for Judgment on Pleadings Granted 27.22
- C. Issues on Appeal 27.23
- D. Effect of Judgment: Res Judicata 27.24
VI. CHECKLIST: DIAGNOSTIC QUESTIONS 27.25
VII. CHECKLIST: PROCEDURE FOR PREPARING MOTION FOR JUDGMENT ON THE PLEADINGS 27.26
VIII. FORMS
- A. Form: Notice of Motion for Judgment on Pleadings 27.27
- B. Form: Order for Judgment on Pleadings 27.28
- C. Form: Judgment on Pleadings 27.29
- D. Form: Memorandum Supporting Motion for Judgment on Pleadings 27.30

Interpleader

I. INTRODUCTION
- A. Scope of Chapter; Terminology 28.1
- B. Governing Law 28.2
II. OVERVIEW
- A. Federal Interpleader 28.3
- B. Traditional Requirements Eliminated 28.4
- C. Two-Stage Procedure 28.5
  - 1. Stakeholder’s Right to Interplead 28.6
  - 2. Litigation Between Claimants 28.7
- D. Typical Uses of Interpleader
  - 1. Insurance Policy Proceeds 28.8
  - 2. Resolving Claims to Escrowed Property 28.9
  - 3. Determining Right to Bank Deposits 28.10
  - 4. Rents 28.11
  - 5. Properties Subject to Levy 28.12
  - 6. Miscellaneous Uses 28.13
- E. Other Procedures Compared
  - 1. Declaratory Relief 28.14
  - 2. Summary Judgment 28.15
  - 3. Deposit in Court 28.16
  - 4. Consolidation; Severance 28.17
  - 5. Bill of Peace 28.18
  - 6. Contractual Indemnity 28.19
  - 7. Alternative Dispute Resolution; Settlement Conferences 28.20
- F. Statutory Features
  - 1. Special Situations 28.21
  - 2. Attorney Fees and Costs 28.22
  - 3. Staying Other Proceedings 28.23
III. STAKEHOLDERS’ PROCEDURES
- A. Tactical Considerations
  - 1. Choosing State or Federal Jurisdiction, Venue 28.24
  - 2. Effect of Insurer’s Deposit of Policy Proceeds on Obligation to Defend 28.25
- B. Meeting Threshold Requirements
  - 1. Showing Double Vexation 28.26
  - 2. Jurisdiction
    - a. Over Interpleader Suits 28.27
    - b. Over Claimants 28.28
  - 3. Applicability of Joinder Statutes 28.29
  - 4. Applicability of Cross-Complaint Statute 28.30
- C. Alternative Procedures When Stakeholder Is Defendant in Pending Action 28.31
  - 1. Motion for Discharge and Substitution or Dismissal 28.32
    - a. Timing of Motion 28.33
    - b. Drafting Moving Papers 28.34
  - 2. Cross-Complaint 28.35
  - 3. Complaint 28.36
- D. Procedures When Stakeholder Is Plaintiff in Interpleader
  - 1. Complaint in Interpleader 28.37
  - 2. Service and Filing 28.38
IV. CLAIMANTS’ PROCEDURES
- A. Alternative Procedures for Opposing Interpleader 28.39
- B. Effect of Failure to Object to Discharge of Stakeholder 28.40
V. JOINED DEFENDANTS’ PROCEDURES 28.41
VI. TRIAL
- A. First Stage 28.42
- B. Second Stage
  - 1. Right to Jury Trial 28.43
  - 2. Trial Between Conflicting Claimants; Final Judgment 28.44
VII. FORMS
- A. Form: Notice of Motion for Discharge and Substitution or Dismissal 28.45
- B. Form: Declaration Supporting Motion for Discharge and Substitution or Dismissal 28.46
- C. Form: Order Discharging Defendant and Substituting Claimant as Defendant 28.47
- D. Form: Complaint in Interpleader 28.48
- E. Form: Interlocutory Order in Interpleader by Cross-Complaint 28.49
- F. Form: Final Judgment in Interpleader 28.50

Security for Costs

I. INTRODUCTION
- A. Scope of Chapter 29.1
- B. Governing Law 29.2
II. DESCRIPTION AND USE
- A. Rationale; Definitions 29.3
  - 1. Failure to Post Security: Grounds for Mandatory Dismissal 29.4
  - 2. Order Requiring Security: No Effect on Merits of Case 29.5
  - 3. Plaintiff’s Indigency: Court’s Discretion to Waive Security 29.6
  - 4. Demand for Judgment (CCP §998) Compared With Security for Costs Statutes 29.7
- B. Constitutionality
  - 1. Due Process Requirements 29.8
  - 2. California Security for Costs Statutes Repealed
    - a. Public Entities and Employees 29.9
    - b. Defamation and Other Actions 29.10
- C. Chart: California Actions That May Require Security 29.11
III. NONRESIDENT OR FOREIGN CORPORATION PLAINTIFFS
- A. Scope of Statute 29.12
- B. Constitutionality 29.13
- C. Defendant’s Procedures
  - 1. Motion for Security
    - a. Grounds; Papers 29.14
    - b. Timing: Any Time Before Trial 29.15
    - c. Amount: Costs and Attorney Fees Not Limited by Statute 29.16
    - d. Service 29.17
  - 2. Motion to Stay Proceedings; Timing 29.18
- D. Plaintiff’s Procedures
  - 1. Opposition to Motion; Grounds 29.19
  - 2. Posting Security
    - a. Amount May Be Modified During Proceedings 29.20
    - b. Timing: Undertaking Must Be Filed No Later Than 30 Days After Service of Court’s Order 29.21
    - c. Filing Undertaking; Service 29.22
  - 3. Failure to Post Security; Effect of Dismissal of Action 29.23
- E. Defendant’s Subsequent Procedures
  - 1. Motion for Additional Security 29.24
  - 2. Motion to Dismiss for Failure to File Undertaking; Sample Language 29.25
IV. SHAREHOLDER DERIVATIVE ACTIONS
- A. Scope of Statute 29.26
- B. Constitutionality 29.27
- C. Procedures
  - 1. Motion to Require Security
    - a. Who May Move: Corporation, Association, Individually Named Officer or Director 29.28
    - b. Against Whom Motion May Be Made: Plaintiffs Pleading Derivative Causes of Action (Corp C §800(b)) 29.29
    - c. Effect of Motion: Automatically Stays Proceedings 29.30
    - d. Motion Preserves Right to Recover Attorney Fees 29.31
    - e. Grounds 29.32
    - f. Timing: Motion for Security Must Be Made Within 30 Days After Service of Summons 29.33
  - 2. Hearing
    - a. Burden of Proof on Defendant to Show Grounds 29.34
    - b. Defendant’s “Business Judgment” Argument 29.35
    - c. Plaintiff’s Responses to “Business Judgment” Argument 29.36
    - d. Presentation of Evidence on Appropriate Amount of Security
      - (1) Expenses to Be Considered; $50,000 Limit 29.37
      - (2) Expenses Arising From Indemnification of Corporation’s Agents (Corp C §317) 29.38
  - 3. Court Ruling
    - a. Decision Is Discretionary 29.39
    - b. Effect of Noncompliance With Order: Mandatory Dismissal 29.40
    - c. Alternative to Compliance With Order: Voluntarily Posting $50,000 Bond 29.41
    - d. Modification of Order 29.42
    - e. Appealability 29.43
V. ACTIONS AGAINST ARCHITECTS AND ENGINEERS
- A. Scope of Statute 29.44
- B. Procedures
  - 1. Noticed Motion; Showing Required 29.45
  - 2. Hearing 29.46
- C. Failure to File Undertaking: Mandatory Dismissal 29.47
- D. Effect of Final Judgment or Dismissal; Costs 29.48
VI. ACTIONS AGAINST DOCTORS AND OTHER MEDICAL PROFESSIONALS
- A. Scope of Statute 29.49
- B. Constitutionality 29.50
- C. Procedures
  - 1. Noticed Motion; Timing 29.51
  - 2. Hearing; Showing Required 29.52
  - 3. Maximum Amount; No Effect on Merits 29.53
- D. Mandatory Dismissal If Security Not Posted; Costs 29.54
VII. VEXATIOUS LITIGANTS
- A. Scope of Statute; Rationale 29.55
- B. Constitutionality 29.56
- C. Procedures
  - 1. Noticed Motion; Timing 29.57
  - 2. Proceedings Automatically Stayed 29.58
  - 3. Grounds; Hearing 29.59
  - 4. Court Ruling; Amount of Security 29.60
  - 5. Lifting of Prefiling Order 29.60A
- D. Failure to Furnish Security: Mandatory Dismissal 29.61
VIII. CHECKLIST: PROCEDURE FOR MOTION FOR SECURITY FOR COSTS 29.62
IX. FORMS
- A. Form: Notice of Motion for Order Requiring Security 29.63
- B. Form: Undertaking (CCP §995.330) 29.64
- C. Motion for Security for Costs and Attorney Fees Under CCP §1030
  - 1. Form: Notice of Motion for Security for Costs and Attorney Fees (CCP §1030) 29.65
  - 2. Form: Declaration Supporting Motion for Order Requiring Security (CCP §1030) 29.66

Bill of Particulars

I. INTRODUCTION
- A. Scope of Chapter 30.1
- B. Governing Law 30.2
II. DESCRIPTION AND USES 30.3
- A. Advantages; Limitations
  - 1. Right to Itemization of Total Sum Alleged 30.4
  - 2. Applies to Contract and Quasi-Contract Actions Only 30.5
  - 3. Using Bill for Discovery Purposes 30.6
- B. Other Procedures Compared
  - 1. Demurrer for Uncertainty 30.7
  - 2. Discovery Methods 30.8
- C. When Available
  - 1. Actions on Account; Examples 30.9
  - 2. Actions on Account Stated; Compared 30.10
- D. Effect on Pleading and Proof
  - 1. Amplifies Pleading 30.11
  - 2. Limits Evidence and Recovery 30.12
  - 3. Bill and Evidence Distinguished 30.13
III. PROCEDURES
- A. Defendant’s Demand
  - 1. Who May Make Demand 30.14
  - 2. Statutory Requirements; Timing 30.15
  - 3. Service; Not Filed With Court 30.16
  - 4. Effect on Time to Respond to Complaint 30.17
- B. Plaintiff’s Response
  - 1. Contents of Bill; Detail Required 30.18
  - 2. Timing; Service 30.19
IV. ENFORCING DEMAND AND PRECLUDING EVIDENCE
- A. Motion for Further Bill
  - 1. Waiver of Defects When Motion Not Made 30.20
  - 2. Timing 30.21
  - 3. Procedure 30.22
  - 4. Plaintiff’s Failure to Comply With Order for Further Bill 30.23
- B. Motion to Preclude Evidence
  - 1. Statutory Penalty 30.24
  - 2. Timing 30.25
  - 3. Procedures 30.26
  - 4. When Motion Granted; Effect 30.27
  - 5. If Motion Denied 30.28
V. RELIEF FROM NONCOMPLIANCE
- A. Amending Erroneous or Incomplete Bill 30.29
- B. Bill Delivered Late 30.30
- C. Motion Under CCP §473 30.31
VI. CHECKLIST: DIAGNOSTIC QUESTIONS 30.32
VII. CHECKLIST: PROCEDURE FOR DEMAND FOR BILL OF PARTICULARS (CCP §454) 30.33
VIII. FORMS
- A. Form: Demand for Bill of Particulars 30.34
- B. Form: Bill of Particulars (Book or Ledger Account) 30.35
- C. Form: Bill of Particulars (Common Counts) 30.36
- D. Form: Letter Demanding Further Bill of Particulars 30.37
- E. Motion for Further Bill of Particulars
  - 1. Form: Notice of Motion for Further Bill of Particulars 30.38
  - 2. Form: Declaration Supporting Motion for Further Bill of Particulars 30.39
  - 3. Form: Order for Further Bill of Particulars 30.40
- F. Form: Letter Demanding Bill of Particulars After Party’s Failure to Deliver 30.41
- G. Motion to Preclude Evidence
  - 1. Form: Notice of Motion to Preclude Introduction of Evidence at Trial 30.42
  - 2. Form: Declaration Supporting Motion to Preclude Introduction of Evidence at Trial 30.43
  - 3. Form: Order Precluding Introduction of Evidence at Trial 30.44

Intervention

I. INTRODUCTION
- A. Scope of Chapter 31.1
- B. Governing Law 31.2
II. NATURE OF INTERVENTION
- A. Description of Intervention; General Statute (CCP §387) 31.3
- B. Discretionary Intervention 31.4
- C. Mandatory Intervention
  - 1. Description 31.5
  - 2. Statutes That Grant Unconditional Right to Intervene 31.6
- D. Related Procedures Similar to Intervention
  - 1. Indispensable Party’s Application for Joinder (CCP §389)
    - a. Requirements for Joinder Under CCP §389 31.7
    - b. Comparison of CCP §389 and CCP §387 31.8
    - c. Effect on Case If Indispensable Person Cannot Be Made a Party 31.9
  - 2. Application for Joinder by Person Claiming Interest in Real or Personal Property (CCP §389.5) 31.10
  - 3. Judgment Creditor’s Lien on Cause of Action and Judgment 31.11
  - 4. Third Party Claim Against Levied-on Property 31.12
  - 5. Petitioning for Coordination of Actions Sharing Common Question 31.13
  - 6. Applying to Appear as Amicus Curiae 31.14
- E. Examples of Persons Permitted to Intervene
  - 1. Real Parties in Interest 31.15
  - 2. Successors in Interest 31.16
  - 3. Insurers and Sureties 31.17
  - 4. Judgment Creditors 31.18
  - 5. Owners of Property Levied on 31.19
  - 6. Limited Partners 31.20
  - 7. Husband or Wife 31.21
  - 8. Claimant to Property in Marital Dissolution 31.22
  - 9. Person Claiming Interest in Real Property
    - a. Foreclosure 31.23
    - b. Quiet Title 31.24
    - c. Action for Possession 31.25
    - d. Condemnation 31.26
    - e. Action to Impress a Trust 31.27
  - 10. Will Contests and Heirship Proceedings 31.28
  - 11. Adjoining Property Owners: Zoning and Trespass Actions 31.29
  - 12. Voters 31.30
- F. Examples of Persons Denied Permission to Intervene
  - 1. Shareholders 31.31
  - 2. Attorneys 31.32
  - 3. Taxpayers; Persons Interested in Legal Precedent 31.33
  - 4. Adjoining Property Owners: Actions Other Than Zoning 31.34
  - 5. General Creditors 31.35
  - 6. Owners of Property Used as Evidence 31.36
III. APPLYING FOR AND OPPOSING INTERVENTION
- A. Applying for Leave to Intervene
  - 1. Timing 31.37
    - a. Motions to Set Aside Default and to Set Aside Judgment Under CCP §473 31.38
    - b. No Intervention After Action Dismissed 31.39
    - c. Intervention Before New Trial or Retrial 31.40
    - d. Effect of Intervenor’s Delay After Learning of Action 31.41
    - e. Statute of Limitations 31.42
  - 2. Application: Ex Parte or Noticed Motion
    - a. Ex Parte Application 31.43
    - b. Noticed Motion 31.44
  - 3. Meeting Intervenor’s Burden of Proof 31.45
- B. Opposing Leave to Intervene
  - 1. Procedure for Presenting Opposition 31.46
  - 2. Grounds for Opposition 31.47
  - 3. Waiver of Objections 31.48
- C. Appellate Review
  - 1. When Leave to Intervene Denied 31.49
  - 2. When Leave to Intervene Granted 31.50
IV. PROCEDURES ONCE INTERVENTION GRANTED
- A. Complaint or Answer in Intervention
  - 1. Requirements 31.51
  - 2. Service 31.52
  - 3. Intervenor’s Rights and Remedies 31.53
- B. Responses to Complaint in Intervention; Timing 31.54
- C. Cross-Complaint Against Intervenor 31.55
- D. Dismissal of Action After Intervention
  - 1. By Original Plaintiff 31.56
  - 2. By Intervenor 31.57
V. CHECKLIST: DIAGNOSTIC QUESTIONS 31.58
VI. CHECKLIST: PROCEDURE FOR INTERVENTION 31.59
VII. FORMS
- A. Form: Declaration for Order Granting Leave to Intervene 31.60
- B. Form: Order Granting Leave to Intervene (Ex Parte) 31.61
- C. Form: Declaration for Order to Show Cause re Intervention 31.62
- D. Form: Order to Show Cause Why Leave to Intervene Should Not Be Granted 31.63
- E. Form: Notice of Motion for Leave to Intervene 31.64
- F. Form: Order Granting Leave to Intervene (After Hearing) 31.65
- G. Form: Complaint in Intervention 31.66

Injunctions and Other Provisional Remedies

I. INTRODUCTION
- A. Scope of Chapter 32.1
- B. Governing Law 32.2
II. NATURE OF INDIVIDUAL PROVISIONAL REMEDIES
- A. Characteristics of Provisional Remedies 32.3
- B. Injunction 32.4
- C. Attachment 32.5
- D. Claim and Delivery 32.6
- E. Receivership 32.7
- F. Deposit in Court 32.8
- G. Related Procedures
  - 1. Interpleader 32.9
  - 2. Declaratory Relief 32.10
III. INJUNCTIONS GENERALLY
- A. Purpose of Injunction 32.11
- B. Types of Injunctions 32.12
  - 1. Mandatory Injunction
    - a. Changes Relative Position of Parties 32.13
    - b. Rarely Issued 32.14
    - c. Look For Effect, Not Form, of Order 32.15
  - 2. Prohibitory Injunction
    - a. Prohibits Party From Engaging in Certain Acts 32.16
    - b. Preserves Status Quo 32.17
    - c. Minor Mandatory Characteristics Not Important 32.18
- C. Prerequisites to Injunctive Relief
  - 1. Jurisdiction
    - a. Subject Matter Jurisdiction 32.19
    - b. Personal Jurisdiction 32.20
  - 2. Standing
    - a. General Rules on Standing 32.21
    - b. Class Actions 32.22
    - c. Specific Statute 32.23
  - 3. Venue 32.24
  - 4. Statutory Requirements 32.25
    - a. Provisional Injunctions 32.26
    - b. Permanent Injunctions 32.27
    - c. Specific Statutes Authorizing Injunctive Relief 32.28
  - 5. Equitable Considerations 32.29
    - a. Inadequacy of Legal Remedy 32.30
    - b. Threat of Irreparable Injury 32.31
    - c. Likelihood of Success on Merits 32.32
    - d. Balance of Equities
      - (1) Court Balances Two Factors 32.33
      - (2) Federal Law on Balancing Equities 32.34
    - e. Multiplicity of Judicial Actions 32.35
    - f. Public Interest and Balance of Conveniences in Favor of Moving Party 32.36
    - g. Injunctive Relief Sought by Government Entity Under Statute 32.37
IV. APPLICATION FOR ORDER TO SHOW CAUSE AND TEMPORARY RESTRAINING ORDER
- A. When Appropriate 32.38
- B. Moving Party’s Procedures
  - 1. By Complaint or by Verified Affidavit or Declaration 32.39
  - 2. Special Requirements for Ex Parte Relief 32.40
  - 3. Verification 32.41
  - 4. Affidavits or Declarations
    - a. Which to Use 32.42
    - b. Contents
      - (1) Showing Required 32.43
      - (2) Ex Parte Relief 32.44
      - (3) Attachments 32.45
      - (4) Statement of Prior Application 32.46
  - 5. Supporting Memorandum 32.47
  - 6. Form of Temporary Restraining Order and Order to Show Cause 32.48
  - 7. Filing Complaint 32.49
  - 8. Notice 32.50
    - a. Declaration Regarding Notice 32.51
    - b. Time of Notice 32.52
    - c. Contents of Notice 32.53
    - d. Effect on Filing of Failure to Comply With Time of Notice Requirement 32.54
    - e. Failure to Notify Adverse Party in First Amendment Cases 32.55
  - 9. Presenting the Application 32.56
  - 10. Setting Hearing Date 32.57
  - 11. Bond or Undertaking 32.58
  - 12. Service of TRO and OSC 32.59
- C. Responding Party’s Procedures
  - 1. Before Order Issues; Procedures 32.60
  - 2. After Temporary Restraining Order Issues; Alternatives 32.61
- D. Checklist: Temporary Restraining Order (TRO) 32.62
V. MOTION FOR PRELIMINARY INJUNCTION
- A. When Appropriate 32.63
- B. Moving Party’s Procedures
  - 1. Notice of Motion or Order to Show Cause 32.64
  - 2. Complaint, Declarations, Supporting Memorandum, Order, Undertaking 32.65
  - 3. Filing and Service
    - a. Order to Show Cause 32.66
    - b. Notice of Motion 32.67
  - 4. Preparing for Hearing 32.68
- C. Responding Party’s Procedures
  - 1. Papers to Prepare 32.69
    - a. Motion to Disqualify Judge 32.70
    - b. Demurrer 32.71
    - c. Answer
      - (1) When to File 32.72
      - (2) Verification 32.73
    - d. Affidavits or Declarations 32.74
    - e. Memorandum 32.75
  - 2. Filing and Service 32.76
  - 3. Evidentiary Objections; Motions to Strike 32.77
- D. Hearing on Preliminary Injunction
  - 1. Request for Continuance
    - a. By Applicant 32.78
    - b. By Respondent 32.79
    - c. By Stipulation 32.80
    - d. On Court’s Own Motion 32.81
  - 2. Procedures at Hearing
    - a. Ruling on Demurrer 32.82
    - b. Initial Receipt of Evidence 32.83
    - c. Plaintiff’s Oral Argument 32.84
    - d. Defendant’s Procedures 32.85
    - e. Argument on Undertaking 32.86
    - f. Restrictions on Oral Testimony 32.87
  - 3. Court’s Ruling 32.88
  - 4. Court’s Order of Injunction
    - a. Prepared by Moving Party’s Attorney 32.89
    - b. Filing and Service 32.90
    - c. Persons Bound 32.91
- E. Responding Party’s Alternatives When Preliminary Injunction Issues 32.92
- F. Checklist: Diagnostic Questions 32.93
- G. Checklist: Preliminary Injunction 32.94
VI. UNDERTAKING (OR BOND)
- A. Purpose and Requirements 32.95
  - 1. Exceptions 32.96
  - 2. Jurisdictional Nature of Undertaking 32.97
  - 3. Summary of Bond and Undertaking Law 32.98
  - 4. Amount of Undertaking 32.99
  - 5. When Bond Becomes Effective 32.100
- B. Filing and Service 32.101
- C. Challenging Sufficiency of Sureties
  - 1. Notice of Motion 32.102
  - 2. Grounds 32.103
  - 3. Waiver 32.104
  - 4. Hearing 32.105
  - 5. Effect of Court’s Ruling 32.106
- D. Recovery on Undertaking
  - 1. When Right of Recovery Arises 32.107
  - 2. Procedures
    - a. Use of Independent Action or Summary Procedure 32.108
    - b. Motion After Judgment 32.109
    - c. Pleading and Proof 32.110
    - d. Measure of Damages 32.111
VII. PERMANENT INJUNCTION AFTER TRIAL ON MERITS 32.112
VIII. DEFENSES TO INJUNCTIVE RELIEF
- A. Jurisdictional Limitations 32.113
  - 1. Constitutional Limitations 32.114
  - 2. Statutory Limitations 32.115
  - 3. Judicial Restraint Limitation 32.116
- B. Equitable Defenses
  - 1. Laches 32.117
  - 2. Unclean Hands 32.118
  - 3. Repetition Unlikely 32.119
  - 4. Contrary to Public Interest or Statute 32.120
  - 5. Balance of Conveniences in Favor of Responding Party 32.121
IX. ENFORCEMENT BY CONTEMPT
- A. What Constitutes Contempt 32.122
- B. Initiating Proceedings 32.123
- C. Enjoined Party’s Response; Defenses 32.124
- D. Hearing 32.125
- E. Punishment 32.126
X. REVIEW OF ORDERS
- A. In Trial Court
  - 1. Motion to Modify, Vacate, or Dissolve Injunctive Order
    - a. Who May Move 32.127
    - b. When Available 32.128
    - c. Procedures 32.129
  - 2. Staying or Issuing Injunction Pending Appeal 32.130
- B. In Appellate Courts
  - 1. By Appeal 32.131
    - a. Stay Pending Appeal 32.132
    - b. Standard of Review 32.133
  - 2. By Writ 32.134
XI. INJUNCTIONS AND ORDERS AGAINST HARASSMENT UNDER CCP §527.6
- A. When Available 32.135
  - 1. Examples 32.136
  - 2. Purpose 32.137
  - 3. Normal Injunctive Procedures Contrasted 32.138
- B. Procedure
  - 1. Temporary Restraining Order 32.139
  - 2. Hearing on Petition; Duration of Order; Renewal of Order 32.140
  - 3. Representation by Counsel 32.141
  - 4. Use of Support Person 32.142
  - 5. Service and Delivery to Law Enforcement Agencies
    - a. Service on Defendant
      - (1) Service of Petition, Temporary Restraining Order, and Notice of Hearing 32.142A
      - (2) Service of Order After Hearing 32.142B
    - b. Delivery to Law Enforcement Agencies 32.143
    - c. Notification of Department of Justice 32.144
  - 6. Possession of Firearm by Person Subject to Order 32.145
- C. Protected Person’s Production of Certified Copy of Order 32.146
- D. Fees and Costs
  - 1. Costs and Attorney Fees 32.147
  - 2. Filing Fees 32.148
  - 3. Service Fees 32.149
- E. Disobedience of Order 32.150
- F. Judicial Council Forms 32.151
XII. FORMS
- A. Injunctive Relief
  - 1. Form: Complaint for Injunctive Relief 32.152
  - 2. Form: Declaration Supporting Temporary Restraining Order and Preliminary Injunction 32.153
  - 3. Form: Order to Show Cause and Temporary Restraining Order 32.154
  - 4. Form: Notice of Motion for Preliminary Injunction 32.155
  - 5. Form: Preliminary Injunction and Order for Undertaking 32.156
  - 6. Form: Order Denying Preliminary Injunction 32.157
  - 7. Form: Undertaking by Surety on Preliminary Injunction 32.158
  - 8. Form: Declaration of Personal Surety’s Qualifications 32.159
- B. Injunctions Against Harassment Under CCP §527.6
  - 1. Form: Request for Civil Harassment Restraining Orders (Civil Harassment Prevention) (Judicial Council Form CH-100) 32.160
  - 2. Form: Confidential CLETS Information (Judicial Council Form CLETS-001) 32.161
  - 3. Form: Notice of Court Hearing (Civil Harassment Prevention) (Judicial Council Form CH-109) 32.162
  - 4. Form: Temporary Restraining Order (CLETS-TCH) (Civil Harassment Prevention) (Judicial Council Form CH-110) 32.163
  - 5. Form: Response to Request for Civil Harassment Restraining Orders (Civil Harassment Prevention) (Judicial Council Form CH-120) 32.164
  - 6. Form: Proof of Personal Service (Civil Harassment Prevention) (Judicial Council Form CH-200) 32.165
  - 7. Form: Proof of Service of Response by Mail (Civil Harassment Prevention) (Judicial Council Form CH-250) 32.166
  - 8. Form: Civil Harassment Restraining Order After Hearing (CLETS-CHO) (Civil Harassment Prevention) (Judicial Council Form CH-130) 32.167
  - 9. Form: Request to Continue Court Hearing(Civil Harassment Prevention) (Judicial Council Form CH-115) 32.168
  - 10. Form: Can a Civil Harassment Restraining Order Help Me? (Civil Harassment Prevention) (Judicial Council Form CH-100-INFO) 32.169

Receivership

I. INTRODUCTION
- A. Scope of Chapter 33.1
- B. Governing Law 33.2
II. DECIDING TO SEEK RECEIVERSHIP
- A. Understanding Nature of Receivership
  - 1. The Remedy 33.3
  - 2. The Job Description 33.4
- B. Availability of Alternatives 33.5
- C. Cost Factors 33.6
- D. Effect of Court Applying Equity Principles 33.7
III. JURISDICTION TO APPOINT RECEIVER
- A. In General 33.8
- B. In Limited Civil Cases 33.9
IV. ACTIONS IN WHICH PRETRIAL RECEIVERSHIPS AUTHORIZED
- A. Actions to Prevent Loss of Specific Property or Funds
  - 1. Statutory Authority 33.10
  - 2. Showing Required 33.11
  - 3. Illustrative Cases
    - a. Vendor 33.12
    - b. Creditor 33.13
    - c. Partner 33.14
- B. Actions to Foreclose Mortgages
  - 1. Statutory Authority 33.15
  - 2. Showing Required 33.16
  - 3. Illustrative Cases
    - a. Commercial Property 33.17
    - b. Residential Property 33.18
- C. Actions Involving Corporations
  - 1. Statutory Authority 33.19
  - 2. Illustrative Cases
    - a. Insolvency Proceedings 33.20
    - b. Fraud or Mismanagement 33.21
    - c. Attorney General’s Action Against Nonprofit Corporation 33.22
    - d. Corporate Dissolution Proceedings 33.23
- D. Unlawful Detainer Actions
  - 1. Statutory Authority 33.24
  - 2. Illustrative Cases
    - a. Landlord 33.25
    - b. Purchaser 33.26
- E. Actions Involving Public Utilities Commission 33.27
- F. When Necessary to Preserve Property or Rights and Miscellaneous Other Actions
  - 1. Statutory Authority; Judicial Limitation 33.28
  - 2. Illustrative Cases
    - a. Actions for Partition 33.29
    - b. Family Law Cases 33.30
    - c. Escheat Proceedings 33.31
- G. Actions Under Health & S C §129173 33.32
- H. Action for Assignment of Rents 33.33
V. PROCEDURES FOR APPOINTMENT OF RECEIVER
- A. Significance of California Rules of Court 33.34
- B. Evidentiary Showing Required in All Cases 33.35
- C. Noticed Motion for Appointment of Receiver
  - 1. Preferred Procedure 33.36
  - 2. Who May Apply 33.37
  - 3. Court’s Own Motion 33.38
  - 4. Hearing on Noticed Motion 33.39
- D. Order to Show Cause 33.40
- E. Ex Parte Application 33.41
  - 1. Application Outside Business Hours 33.42
  - 2. Showing Required 33.43
  - 3. Notice of Ex Parte Application 33.44
  - 4. Hearing to Confirm Appointment; Timing 33.45
- F. Supporting Papers 33.46
- G. Order Appointing Receiver 33.47
- H. Required Undertakings
  - 1. By Applicant 33.48
  - 2. By Receiver 33.49
- I. Receiver’s Oath 33.50
- J. Selecting the Receiver 33.51
  - 1. Persons Not Eligible 33.52
  - 2. Court-Approved Lists of Receivers 33.53
  - 3. Undertaking, Oath, and Order 33.54
- K. Review If Appointment Denied 33.55
VI. PROCEDURES OPPOSING OR CHALLENGING APPOINTMENT
- A. Opposition to Appointment of Receiver 33.56
- B. Review After Appointment Ordered
  - 1. Appealable Order 33.57
  - 2. Standard of Review 33.58
- C. Motion to Vacate Appointment 33.59
- D. Collateral Attack on Appointment of Receiver 33.60
VII. ADMINISTRATION OF RECEIVERSHIP
- A. Receiver’s Powers and Duties 33.61
  - 1. General Powers Under Court Supervision 33.62
  - 2. Deposit of Securities 33.63
  - 3. Sale of Property 33.64
  - 4. Investment of Funds 33.65
  - 5. Employment of Counsel and Other Experts 33.66
  - 6. Abandonment of Worthless Property 33.67
- B. Other Duties
  - 1. Notices 33.68
  - 2. Inventory; Accounts; Real Property Taxes 33.69
- C. Other Receivership Matters 33.70
VIII. TERMINATION OF RECEIVERSHIP
- A. Receiver’s Accounts 33.71
- B. Receiver’s and Attorney’s Compensation 33.72
- C. Discharge of Receiver 33.73
IX. RECEIVER’S CHECKLIST 33.74
X. FORMS
- A. Motion Forms
  - 1. Form: Notice of Motion for Order Appointing Receiver 33.75
  - 2. Form: Order Appointing Receiver 33.76
- B. Ex Parte Forms
  - 1. Form: Application for Ex Parte Order Appointing Receiver and for Order to Show Cause re Confirmation of Appointment 33.77
  - 2. Form: Order Appointing Receiver and Order to Show Cause Why Ex Parte Appointment Should Not Be Confirmed; Temporary Restraining Order 33.78
  - 3. Form: Order Confirming Ex Parte Appointment of Receiver 33.79
- C. Miscellaneous Forms
  - 1. Form: Oath of Receiver 33.80
  - 2. Form: Declaration of Receiver Supporting Order Authorizing Employment of Counsel 33.81
  - 3. Form: Order Authorizing Receiver to Employ General Counsel 33.82

Deposit in Court

I. INTRODUCTION
- A. Scope of Chapter 34.1
- B. Governing Law 34.2
II. OVERVIEW
- A. Deposit in Court as Provisional Remedy 34.3
- B. Other Procedures Compared
  - 1. Interpleader 34.4
  - 2. Attachment 34.5
  - 3. Claim and Delivery 34.6
  - 4. Defendant’s Deposit of Previously Tendered Amount 34.7
  - 5. Offer of Judgment Under CCP §998 34.8
III. STATUTORY REQUIREMENTS; CONSTITUTIONALITY 34.9
IV. PROCEDURE
- A. Timing 34.10
- B. Need for Noticed Motion 34.11
- C. Moving Party’s Papers 34.12
  - 1. Notice of Motion 34.13
  - 2. Declaration Supporting Motion 34.14
  - 3. Exhibits 34.15
  - 4. Supporting Memorandum 34.16
- D. Opposition to Motion 34.17
- E. Evidentiary Showing Required 34.18
- F. Effect of Order; Court’s Duties 34.19
- G. Procedure for Deposit or Delivery 34.20
- H. Application for Enforcement Order Under CCP §574 After Party’s Refusal to Deposit or Deliver 34.21
- I. Notice and Order for Obtaining Disbursement of Funds 34.22
V. CHECKLIST: PROCEDURE FOR DEPOSIT IN COURT 34.23
VI. FORMS
- A. Form: Notice of Motion for Deposit in Court or Delivery of Property 34.24
- B. Form: Declaration Supporting Motion for Deposit in Court or Delivery of Property 34.25
- C. Form: Order for Deposit in Court or Delivery of Property 34.26
- D. Form: Declaration for CCP §574 Enforcement Order 34.27
- E. Form: Enforcement Order Under CCP §574 34.28

Declaratory Relief

I. INTRODUCTION
- A. Scope of Chapter 35.1
- B. Governing Law: The Declaratory Judgment Act 35.2
II. OVERVIEW
- A. Purpose of Declaratory Judgment Procedure 35.3
- B. Applicability of Equitable Principles 35.4
- C. Advantages of the Declaratory Judgment Procedure 35.5
- D. Other Statutory Authority Providing for Some Type of Declaratory Relief 35.6
  - 1. Government Code 35.7
  - 2. Other Statutes 35.8
III. REQUIREMENTS
- A. Who May Obtain Relief
  - 1. Standing Generally; Class Actions 35.9
  - 2. Challenges Concerning Governmental Action: Statutes, Ordinances, Charters, Regulations 35.10
- B. Actual Controversy Requirement 35.11
  - 1. No Redress for Only Past Wrongs 35.12
  - 2. Effect When Probability of Future Controversy Exists 35.13
  - 3. Examples of Actual Controversy 35.14
  - 4. Examples of No Actual Controversy 35.15
IV. FACTORS TO CONSIDER BEFORE SEEKING DECLARATORY RELIEF
- A. Effect of Other Available Remedies
  - 1. Remedies Cumulative 35.16
  - 2. Availability of Another Remedy May Preclude Relief 35.17
  - 3. Exclusivity of Certain Other Remedies or Forums 35.18
- B. What Limitation Period Applies 35.19
- C. Applicability of Doctrine of Exhaustion of Administrative Remedies 35.20
- D. Judicial Discretion to Deny Relief
  - 1. When Not Necessary or Proper 35.21
  - 2. Whether Court Must Declare Rights If Facts Alleged Do Not Entitle Plaintiff to Favorable Declaration 35.22
V. TYPICAL USES
- A. Oral or Written Contracts
  - 1. In General 35.23
  - 2. Insurance Contracts 35.24
    - a. Liability Insurance (Third Party) 35.25
    - b. First-Party Coverage 35.26
- B. Other Instruments 35.27
- C. Other Uses Under CCP §1060 and Govt C §§11350, 11350.3 35.28
- D. Penal Statutes 35.29
VI. PROCEDURE
- A. Commencing Action
  - 1. Determining Proper Court
    - a. Jurisdiction 35.30
    - b. Venue 35.31
  - 2. Determining Appropriate Parties 35.32
  - 3. Drafting Complaint
    - a. Allegations 35.33
    - b. Joinder of Causes of Action 35.34
- B. Filing Response
  - 1. Responsive Pleadings
    - a. Demurrer 35.35
      - (1) In General 35.36
      - (2) Another Action Pending 35.37
    - b. Answer 35.38
    - c. Cross-Complaint 35.39
  - 2. Motions
    - a. Judgment on the Pleadings 35.40
    - b. Summary Judgment 35.41
    - c. Other Motions; Bifurcation 35.42
- C. Particular Trial Aspects
  - 1. Precedence on Calendar 35.43
  - 2. Right to Jury Trial 35.44
  - 3. Burden of Proof 35.45
  - 4. Statement of Decision 35.46
  - 5. Declaratory Judgment
    - a. Trial Court’s Duty to Render Full and Complete Declaration 35.47
    - b. Judgment; Effect 35.48
- D. Appellate Review 35.49
VII. CHECKLIST: PROCEDURE FOR DECLARATORY RELIEF 35.50
VIII. FORMS
- A. Form: Complaint for Declaratory Relief on Contract 35.51
- B. Form: Complaint for Declaratory Relief on Statute or Ordinance 35.52
- C. Form: Judgment for Declaratory Relief 35.53

Summary Judgment

I. SCOPE OF CHAPTER 36.1
II. AVAILABILITY OF SUMMARY JUDGMENT OR SUMMARY ADJUDICATION
- A. Law Governing Motions for Summary Judgment or Summary Adjudication 36.2
- B. When Summary Judgment or Summary Adjudication Is Available
  - 1. When There Is No Triable Issue of Material Fact 36.3
  - 2. Available in Any Form of Action 36.4
- C. When Summary Judgment and Summary Adjudication Are Not Available 36.5
- D. Summary Judgment Versus Summary Adjudication 36.6
- E. Comparison Of California and Federal Law on Motions for Summary Judgment 36.7
- F. Alternate Methods for Narrowing Issues
  - 1. Alternatives to Motions for Summary Judgment or Summary Adjudication 36.8
  - 2. Chart: Comparison of Summary Judgment and Adjudication Motion to Alternative Dispositive Motions 36.9
III. STRATEGIC CONSIDERATIONS
- A. Weigh Advantages and Disadvantages of Making a Motion for Summary Judgment or Summary Adjudication 36.10
  - 1. Advantages of Making a Motion for Summary Judgment or Summary Adjudication 36.11
  - 2. Disadvantages of Making a Motion for Summary Judgment or Summary Adjudication 36.12
- B. Checklist: Diagnostic Questions: Determining Whether to Make Motion 36.13
IV. EVIDENTIARY BURDENS AND PRESUMPTIONS
- A. Principal Authority: CCP §437c and Aguilar 36.14
- B. Summary of Required Burdens
  - 1. Moving Party 36.15
  - 2. Opposing Party 36.16
- C. Applicable Burdens in Summary Judgment Motions 36.17
  - 1. Burden of Production 36.18
    - a. Initial Burden; Prima Facie Showing 36.19
    - b. Shifting Burden; Triable Issue of Fact 36.20
  - 2. Burden of Persuasion 36.21
  - 3. Burden of Proof 36.22
    - a. How Trial Burden of Proof Standard Affects Motion 36.23
    - b. Effect of Trial Standard of Proof on Prima Facie Case 36.24
    - c. How Trial Court Reviews Evidence 36.25
V. TIMING REQUIREMENTS
- A. Motion for Summary Adjudication Under CCP §437c(t) 36.25A
  - 1. Joint Stipulation and Application For Court Permission Required 36.25B
  - 2. Objection by Nonstipulating Parties 36.25C
  - 3. Court’s Ruling on Application 36.25D
- B. Moving Papers
  - 1. Earliest Date to Move for Summary Judgment or Summary Adjudication
    - a. 60 Days After General Appearance 36.26
    - b. Exception: Unlawful Detainer 36.27
    - c. Judicial Attitude Regarding Early Motions 36.28
  - 2. Latest Date to Make Motion Is 30 Days Before Trial Date 36.29
  - 3. Notice Required: 75 Days 36.30
    - a. Manner of Service Extends Required Notice 36.31
    - b. Notice Must Be Accompanied by All Supporting Papers 36.32
    - c. Good Cause Required for Late Motion 36.33
  - 4. Time for Filing Motion for Summary Judgment or Summary Adjudication in Court
    - a. When to File 36.34
    - b. What to File 36.35
- C. Opposition Papers
  - 1. File and Serve Opposition Papers 14 Days Before Hearing 36.36
  - 2. No Extension if Service by Mail 36.37
- D. Reply Papers
  - 1. File and Serve Reply Papers 5 Days Before Hearing 36.38
  - 2. No Extension if Service by Mail 36.39
- E. Filing Cross-Motion for Summary Judgment or Summary Adjudication
  - 1. When Appropriate to File Cross-Motions 36.40
  - 2. Timing of Cross-Motions 36.41
  - 3. Checklist: Cross-Motions 36.42
- F. Requesting a Continuance 36.43
  - 1. Continuance to Amend Pleadings
    - a. Timing of Motion to Amend Pleadings 36.44
    - b. Oral Motion to Continue Hearing 36.45
    - c. Oral Motion to Amend Pleadings 36.46
    - d. Diligence Required 36.47
  - 2. Continuance to Conduct Further Discovery
    - a. Grounds for Continuance 36.48
    - b. Declaration Supporting Continuance for Further Discovery 36.49
    - c. Diligence Required
      - (1) Party Seeking Continuance Must Establish It Could Not Have Found Evidence Earlier 36.50
      - (2) Court Has Limited Discretion to Grant Continuance in Absence of Diligence 36.51
VI. REQUIRED DOCUMENTS
- A. Moving Papers 36.52
  - 1. Special Requirements for Motion for Summary Adjudication Under CCP §437c(t) 36.52A
  - 2. Notice of Motion
    - a. Contents of Notice 36.53
      - (1) When Seeking Summary Adjudication Under CCP §437c(f) 36.54
      - (2) When Seeking Summary Adjudication Under CCP §437c(t) 36.54A
      - (3) When Requesting Judicial Notice 36.55
    - b. Format of Notice 36.56
  - 3. Supporting Memorandum 36.57
    - a. Contents of Supporting Memorandum 36.58
    - b. Optional Summary of Issues and Evidence 36.59
    - c. Other Requirements 36.60
    - d. Memorandum Limited to 20 Pages 36.61
  - 4. Separate Statement of Undisputed Facts
    - a. Purpose of Separate Statement 36.62
    - b. Effect of Failure to File Separate Statement 36.63
    - c. Separate Statement Content Requirements 36.64
    - d. Separate Statement Format Requirements
      - (1) Two-Column Requirement 36.65
      - (2) Electronic Version Requirement 36.66
  - 5. Request for Judicial Notice 36.67
  - 6. Evidence in Support of Motion 36.68
    - a. Format of Evidence in Support of Motion 36.69
    - b. Prepare Deposition as Exhibit 36.70
  - 7. Checklist for Preparing Moving Papers 36.71
- B. Opposition Papers
  - 1. Documents in Opposition to the Motion 36.72
  - 2. Opposing Memorandum
    - a. Contents of Opposing Memorandum 36.73
    - b. Format for Opposing Memorandum 36.74
  - 3. Opposing Party’s Separate Statement 36.75
    - a. Failure of Opposing Party to Submit Separate Statement 36.76
    - b. Contents of Separate Statement 36.77
    - c. Format of Separate Statement 36.78
      - (1) Two-Column Format 36.79
      - (2) Request Electronic Copy of Moving Party’s Separate Statement 36.80
  - 4. Objections to Moving Party’s Evidence 36.81
    - a. Written Objections to Evidence
      - (1) Timing for Written Objections 36.82
      - (2) Format for Written Objections 36.83
    - b. Waiver if No Objection Made 36.84
    - c. Proposed Order 36.85
    - d. Oral Objections 36.86
  - 5. Evidence in Opposition to Motion 36.87
    - a. Format for Opposition Evidence 36.88
    - b. Opposition by Claiming Privilege Against Self-Incrimination 36.89
  - 6. Proposed Order 36.90
  - 7. Checklist: Preparing Opposition 36.91
- C. Reply Papers
  - 1. Reply Memorandum
    - a. Purpose of Reply Memorandum 36.92
    - b. Format of Reply Memorandum 36.93
  - 2. No Supplemental Separate Statement 36.94
  - 3. Objections to Opposing Party’s Evidence 36.95
  - 4. Responses to Opposing Party’s Objections to Evidence 36.96
  - 5. No Affirmative Evidence Submitted with Reply Papers 36.97
  - 6. Proposed Order 36.98
  - 7. Checklist for Preparing Reply Papers 36.99
VII. PREPARING EVIDENCE TO SUPPORT OR OPPOSE MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION
- A. Evidence Is Required 36.100
  - 1. Evidence Must Be Admissible 36.101
    - a. No Ultimate Facts 36.102
    - b. Sources of Evidence
      - (1) Permissible Source of Evidence 36.103
      - (2) Impermissible Sources of Evidence 36.104
  - 2. Evidence Must Be Directed to Issues Raised by Pleadings 36.105
- B. Declarations and Affidavits 36.106
  - 1. Differences Between Declarations and Affidavits 36.107
  - 2. When to Use Declaration or Affidavit 36.108
  - 3. When Not to Use Declaration or Affidavit
    - a. When State of Mind Is at Issue 36.109
    - b. When Declarant Is Sole Witness 36.110
  - 4. Substantive Requirements for Declarations and Affidavits 36.111
    - a. Must Be Presented in Good Faith 36.112
    - b. Must Be Based on Personal Knowledge 36.113
    - c. Must Establish Competence to Testify 36.114
  - 5. Opinion Evidence
    - a. Lay Opinion Evidence 36.115
    - b. Expert Opinion Evidence 36.116
      - (1) Include Statement of Expert Qualifications 36.117
      - (2) Include Factual Basis for Opinion 36.118
      - (3) Must Not Be Based on Speculation or Conjecture 36.119
      - (4) Must Not Be Merely Conclusory 36.120
  - 6. Common Defects in Affidavits and Declarations 36.121
- C. Evidence Obtained Through Discovery 36.122
  - 1. Deposition Testimony 36.123
    - a. Accompany Transcript With Authenticating Declaration 36.124
    - b. Obtain Signed Deposition Transcript 36.125
    - c. Use of Party’s Own Deposition Testimony 36.126
  - 2. Interrogatories and Requests for Admission 36.127
  - 3. Documents Produced in Response to Demands for Inspection 36.128
  - 4. Results of Physical and Mental Examinations 36.129
- D. Judicial Admissions and Stipulations 36.130
  - 1. Admissions in Pleadings 36.131
    - a. Judicial Admissions Cannot Be Controverted 36.132
    - b. Judicial Admissions May Be Implied 36.133
  - 2. Stipulations of Fact 36.134
- E. Judicial Notice 36.135
- F. Laying the Foundation for Evidence 36.136
  - 1. Authentication of Documents 36.137
  - 2. The Secondary Evidence Rule 36.138
  - 3. Hearsay Rule 36.139
    - a. Exceptions to Hearsay Rule 36.140
    - b. Exceptions Commonly Arising in Summary Judgment Context 36.141
      - (1) Business Records Exception 36.142
      - (2) Official Records Exception 36.143
  - 4. Incorporation of Documents by Reference in Declaration 36.144
VIII. OBJECTING TO EVIDENCE 36.145
- A. Raise Objections or Waive Them 36.146
  - 1. Trial Court Rules on Material Objections 36.147
  - 2. Obtain Express Ruling on Each Objection [Deleted] 36.148
  - 3. Methods of Objecting 36.149
- B. Common Objections to Evidence 36.150
  - 1. Attacking Form and Sufficiency of Evidence 36.151
  - 2. Attacking Expert Qualifications 36.152
  - 3. Attacking Expert Opinion 36.153
  - 4. Attacking Lay Opinion 36.154
  - 5. Attacking Speculative Evidence 36.155
  - 6. Attacking Business and Official Records 36.156
  - 7. Attacking Secondary Evidence 36.157
  - 8. Attacking Moving Party’s Credibility 36.158
  - 9. Evidence of State of Mind 36.159
IX. THE HEARING AND ORAL ARGUMENT
- A. Hearing Requirement 36.160
- B. Tentative Ruling 36.161
- C. Oral Argument 36.162
  - 1. Evidentiary Objections at Hearing 36.163
    - a. Procedure for Making Oral Objections to Evidence 36.163A
  - 2. Preserving Issues for Appeal [Deleted]
    - a. Ask for Express Ruling on Evidentiary Objections [Deleted] 36.164
      - (1) [Deleted/Moved] 36.165
      - (2) [Deleted/Moved] 36.166
      - (3) Court Rules on Only Material Objections 36.167
  - 3. Specific Findings for Order 36.168
- D. Requesting Sanctions 36.169
- E. Checklist: Diagnostic Questions: Preparing for Hearing 36.170
X. COURT DECISION
- A. Statutory Test 36.171
  - 1. Court Applies Three-Step Analysis 36.172
  - 2. When Facts Essential to Motion Exist But Cannot Be Presented 36.173
  - 3. Supplemental Declarations and Late Papers 36.174
- B. Consideration of Proffered Evidence 36.175
  - 1. Court Must Construe Evidence in Favor of Party Opposing Motion 36.176
    - a. Exception: When Opposing Party Repudiates Earlier Admission 36.177
    - b. When Opposing Party Adequately Explains Conflict 36.178
  - 2. Inferences Drawn From Evidence Presented 36.179
  - 3. Uncontroverted Evidence 36.180
    - a. Exception: When Only Proof of Fact Is Declaration of Sole Witness 36.181
    - b. Exception: When Fact Is Individual’s State of Mind Established by Affirmation Only 36.182
  - 4. Court Discretion to Consider Evidence Not Presented in Moving Party’s Separate Statement 36.183
XI. COURT ORDER
- A. Preparation and Approval of Court Order
  - 1. Prevailing Party Usually Prepares Order 36.184
  - 2. Timing 36.185
- B. Contents of Court Order
  - 1. When Summary Judgment Motion Is Granted 36.186
  - 2. When Summary Judgment Motion Is Denied 36.187
  - 3. When Summary Adjudication Motion Is Granted 36.188
  - 4. When Summary Adjudication Motion Is Denied 36.189
  - 5. Obtaining Attorney Fees and Sanctions
    - a. Contractual Attorney Fees 36.190
    - b. Sanctions for Bad Faith Affidavits 36.191
XII. CHALLENGING THE COURT’S ORDER 36.192
- A. When Motion for Summary Judgment Is Granted
  - 1. Trial Court Options 36.193
  - 2. Appellate Court Review
    - a. Judgment on Motion for Summary Judgment Is Appealable 36.194
    - b. Time to File Notice of Appeal 36.195
    - c. Scope of Review 36.196
    - d. Standard of Review 36.197
    - e. Review of Evidence 36.198
      - (1) Limited to Separate Statement 36.199
      - (2)  Waiver of Evidentiary Objections
        
        (a)  Failure to Appeal Trial Court’s Ruling Sustaining Objections  36.200
        
        (b)  Failure to Object to Admission in Trial Court  36.201
        
        (c)  Failure to Obtain Express Ruling by Trial Court [Deleted]  36.202
        
        (d)  Objections Are Preserved Even if Not Expressly Ruled On  36.203
        
        (e)  Implied Overruling of Objections Not Specifically Sustained [Deleted]  36.204
    - f. Supplemental Briefing 36.205
- B. When Summary Adjudication Is Granted 36.206
  - 1. Trial Court Options 36.207
  - 2. Appellate Court Review 36.208
- C. When Motion for Summary Judgment or Summary Adjudication Is Denied
  - 1. Trial Court Options 36.209
  - 2. Appellate Court Review 36.210
- D. Charts: Challenges to Granting or Denial of Motions for Summary Judgment or Summary Adjudication
  - 1. Trial Court Procedures 36.211
  - 2. Appellate Court Review 36.212
- E. Diagnostic Questions: Challenging the Ruling
  - 1. Checklist: Opposing Party 36.213
  - 2. Checklist: Moving Party: If Summary Judgment or Summary Adjudication Denied 36.214
XIII. FORMS
- A. Moving Party’s Forms
  - 1. Form: Sample Defendant’s Notice of Motion for Summary Judgment or Summary Adjudication 36.215
  - 2. Form: Sample Defendant’s Memorandum in Support of Motion for Summary Judgment or Summary Adjudication 36.216
  - 3. Form: Sample Declaration Supporting Defendant’s Motion for Summary Judgment or Summary Adjudication 36.217
  - 4. Form: Sample Defendant’s Separate Statement of Undisputed Material Facts 36.218
  - 5. Form: Sample Defendant’s Proposed Order Granting Summary Judgment 36.219
  - 6. Form: Sample Defendant’s Proposed Order Granting Summary Adjudication 36.220
- B. Opposing Party’s Forms
  - 1. Form: Sample Plaintiff’s Response to Separate Statement of Disputed and Undisputed Facts 36.221
  - 2. Form: Sample Plaintiff’s Proposed Order Denying Summary Judgment and Summary Adjudication 36.222
- C. Orders and Judgments
  - 1. Form: Order for Entry of Summary Judgment 36.223
  - 2. Form: Judgment by Court Under CCP §437c 36.224
  - 3. Form: Order Denying Motion for Summary Judgment 36.225
- D. Postjudgment Forms
  - 1. Form: Notice of Motion for Reconsideration of Order Granting Motion for Summary Judgment 36.226
  - 2. Form: Notice of Intention to Move for New Trial 36.227

Judicial Arbitration

I. INTRODUCTION
- A. Scope of Chapter 37.1
- B. Governing Law 37.2
- C. Judicial Arbitration Defined 37.3
- D. Actions Subject to Judicial Arbitration 37.4
- E. Actions Not Subject to Judicial Arbitration 37.5
II. PLACING ACTION ON ARBITRATION HEARING LIST 37.6
- A. Arbitration by Stipulation 37.7
- B. Plaintiff’s Election to Arbitrate
  - 1. Use of Election 37.8
  - 2. Motions Opposing Plaintiff’s Election to Arbitrate 37.9
- C. Arbitration by Court Order
  - 1. Requirements 37.10
    - a. Amount-in-Controversy Determination 37.11
    - b. When Determination Is Made 37.12
    - c. “Frivolous or Insubstantial” Equitable Relief 37.13
  - 2. Scheduling of Arbitration Hearing 37.14
III. THE ARBITRATOR
- A. Selection of Arbitrator
  - 1. By Stipulation 37.15
  - 2. By Appointment From Arbitration Panel
    - a. Panels of Arbitrators 37.16
    - b. Local Selection Procedures 37.17
    - c. Selection Absent Stipulation or Local Procedures 37.18
    - d. Procedure if Arbitrator Declines to Serve 37.19
- B. Rejection or Disqualification of Arbitrator
  - 1. Rejection 37.20
  - 2. Disqualification
    - a. Disqualification by Arbitrator 37.21
    - b. Disqualification by Party 37.22
- C. Communication With Arbitrator 37.23
IV. PREHEARING PREPARATION
- A. Discovery 37.24
- B. Using Documentary Evidence
  - 1. Admissibility 37.25
  - 2. Requirement of Delivery Before Hearing 37.26
  - 3. Reports, Records, and Bills
    - a. Admission Into Evidence 37.27
    - b. Opponent’s Procedures 37.28
  - 4. Written Statements of Witnesses
    - a. Admission Into Evidence 37.29
    - b. Opponent’s Procedures 37.30
  - 5. Depositions
    - a. Admission Into Evidence 37.31
    - b. Opponent’s Procedures 37.32
- C. Settlement 37.33
V. THE HEARING
- A. Setting the Hearing 37.34
- B. Continuances 37.35
- C. Subpoenas 37.36
- D. Conduct of Hearing
  - 1. Civil Trial Concept 37.37
  - 2. Arbitrator Powers 37.38
  - 3. Evidence 37.39
  - 4. Record of Proceedings 37.40
  - 5. Representation by Counsel 37.41
  - 6. Absence or Nonparticipation of Party 37.42
VI. THE AWARD
- A. Formal Aspects of Award 37.43
- B. Entry as Judgment 37.44
- C. Arbitrator Fees 37.45
VII. TRIAL AFTER ARBITRATION
- A. Requesting Trial After Arbitration 37.46
- B. Postarbitration Discovery 37.47
- C. The Trial De Novo 37.48
- D. Costs and Fees After Trial De Novo 37.49
VIII. SEEKING TO VACATE JUDGMENT 37.50
IX. CHECKLIST: PROCEDURES FOR JUDICIAL ARBITRATION 37.51
X. FORMS
- A. Form: Stipulation to Submit to Judicial Arbitration 37.52
- B. Form: Plaintiff’s Election of Judicial Arbitration 37.53
- C. Form: Stipulation to Judicial Arbitrator 37.54
- D. Form: Rejection of Arbitrator 37.55
- E. Form: Plaintiff’s Notice of Intention to Introduce Documents and Depositions Into Evidence 37.56
- F. Form: Demand That Witness Appear and Testify in Person 37.57
- G. Form: Request for Trial De Novo After Judicial Arbitration (Alternative Dispute Resolution) (Judicial Council Form ADR-102) 37.58

Default

I. INTRODUCTION
- A. Scope of Chapter 38.1
- B. Governing Law 38.2
II. WHAT IS DEFAULT?
- A. Defining Terms
  - 1. Default 38.3
  - 2. Entry of Default 38.4
  - 3. Default Judgment 38.5
- B. Differentiating Default From Other Court Proceedings
  - 1. Dismissal 38.6
  - 2. Uncontested Trials 38.7
  - 3. Default as Discovery Sanction 38.8
III. WHEN TO USE DEFAULT
- A. Reasons to Seek Entry of Default and Default Judgment
  - 1. Default Cuts Off Defendant’s Ability to Respond 38.9
  - 2. Res Judicata Effect of Default Judgment 38.10
- B. Restrictions on Default Judgments
  - 1. No Relief in Excess of Amount Demanded 38.11
    - a. Judgment Cannot Award Attorney Fees Unless Requested in Complaint 38.12
    - b. Court May Modify Judgment to Strike Excess Damages 38.13
    - c. In Limited Civil Cases, Amount-in-Controversy Limit Does Not Relieve Demand Requirement 38.14
    - d. No Default in Certain Proceedings 38.15
  - 2. No Default Against Certain Defendants 38.16
- C. Standards of Ethical Conduct in Using Default 38.17
IV. SEEKING ENTRY OF DEFAULT
- A. Prerequisites for Seeking Entry of Default 38.18
  - 1. Defendant Must Be Served 38.19
  - 2. Time for Response Must Be Expired 38.20
  - 3. Defendant Must Not Have Responded 38.21
    - a. Answer or Demurrer 38.22
      - (1) If Plaintiff Amends Complaint 38.23
      - (2) If Defendant’s Demurrer Is Sustained 38.24
      - (3) If Defendant’s Demurrer Is Overruled 38.25
      - (4) If Plaintiff Successfully Demurs to the Answer 38.26
    - b. Motion to Strike 38.27
      - (1) If Defendant’s Motion to Strike Is Granted 38.28
      - (2) If Defendant’s Motion to Strike Is Denied 38.29
      - (3) If Plaintiff’s Motion to Strike Answer Is Granted 38.30
    - c. Motion to Change Venue Under CCP §396b 38.31
      - (1) If Defendant’s Motion to Transfer Is Denied 38.32
      - (2) If Defendant’s Motion to Transfer Is Granted 38.33
      - (3) If Party Appeals Order Granting or Denying Motion to Transfer 38.34
    - d. Motion to Dismiss for Delay in Prosecution 38.35
    - e. Motion to Quash Service of Summons or Stay or Dismiss for Inconvenient Forum 38.36
      - (1) Defendant May Also Answer, Demur, or Move to Strike 38.37
      - (2) If Motion Is Denied, Defendant May Petition for Writ Of Mandate 38.38
    - f. Petition to Compel Arbitration 38.39
  - 4. Additional Requirements in Certain Cases
    - a. Statement of Damages in Personal Injury or Wrongful Death Cases 38.40
      - (1) Plaintiff Must Serve Mandatory Form 38.41
      - (2) Plaintiff Should Wait at Least 30 Days to Seek Default 38.42
    - b. Statement Reserving Right to Seek Punitive Damages 38.43
- B. Timing: When to Request Entry of Default
  - 1. Within 10 Days After Deadline for Responsive Paper Passes 38.44
  - 2. No Default if Responsive Paper Is Filed Late but Before Entry of Default 38.45
- C. Procedure: How to Obtain Entry of Default
  - 1. Plaintiff Files Request for Entry of Default Form 38.46
    - a. Request Must Include Venue Declaration 38.47
    - b. Request Must Include Declaration of Mailing 38.48
    - c. Other Papers That Should Accompany Request 38.49
  - 2. Clerk Must Enter Default if Request Shows Conditions Exist 38.50
- D. Effect of Amended Complaint
  - 1. No Effect if Change Is Only as to Form 38.51
  - 2. Default Ineffective if Change Is Substantive 38.52
V. SEEKING DEFAULT JUDGMENT 38.53
- A. Default Judgment by Clerk
  - 1. Default Judgment by Clerk Is Available Only in Certain Actions 38.54
    - a. Clerk May Enter Default Judgment for Fixed or Scheduled Attorney Fees Only 38.55
    - b. Clerk Can Enter Default Judgment on Cross-Complaint if Proper and Will Not Cause Delay 38.56
    - c. Clerk May Enter Default in Unlawful Detainer Cases Only for Restitution of Premises 38.57
    - d. Clerk May Enter Default on Fewer Than All Causes of Action 38.58
    - e. Clerk May Enter Default of Jointly Liable Defendants 38.59
  - 2. Clerk Must Enter Default Judgment When Requirements Are Met 38.60
    - a. Remedies for Clerk’s Failure to Enter Default Judgment 38.61
    - b. Court Must Set Aside Judgment by Clerk Lacking Authority 38.62
  - 3. Timing: When to Request Entry of Clerk’s Judgment
    - a. Request Is Generally Made at Time of Request for Entry of Default 38.63
    - b. Default Judgment Must Be Obtained Within 45 Days After Entry of Default 38.64
  - 4. Procedure: How to Obtain Default Judgment by Clerk
    - a. Plaintiff Files Request for Entry of Default Form 38.65
      - (1) Request Must Include a Memorandum of Costs 38.66
      - (2) Request Must Include Declaration of Nonmilitary Status 38.67
    - b. Plaintiff Files Other Papers With Request 38.68
      - (1) Written Contract 38.69
      - (2) Request for Dismissal of Unserved Defendants 38.70
      - (3) Additional Papers Required by Local Rules 38.71
- B. Default Judgment by Court
  - 1. When to Use Default Judgment by Court
    - a. Default Judgment By Court Is Available in Any Case 38.72
    - b. Default Judgment By Court Is Required in Certain Cases 38.73
  - 2. Timing: When to Request Default Judgment by Court 38.74
  - 3. Procedure: How to Obtain Default Judgment by Court
    - a. Plaintiff Files Request for Entry of Default Form 38.75
    - b. Plaintiff Files Other Papers With Request 38.76
      - (1) If Summons Was Served by Publication 38.77
      - (2) If Action Affects Real Property 38.78
      - (3) If Action Seeks Attorney Fees 38.79
  - 4. Plaintiff Requests Hearing 38.80
    - a. Evidence Must Be Sufficient to Support Claims 38.81
    - b. Plaintiff May Use Hearsay Testimony 38.82
    - c. Evidence May Be by Affidavits or Declarations 38.83
- C. Entry of Default Judgment 38.84
VI. SEEKING RELIEF FROM DEFAULT OR DEFAULT JUDGMENT 38.85
- A. Who May Seek Relief? 38.86
- B. Relief in Cases of Mistake, Inadvertence, Surprise, or Neglect Under CCP §473(b) 38.87
  - 1. When Relief Is Discretionary Under CCP §473(b) 38.88
    - a. What Constitutes a Mistake? 38.89
    - b. What Constitutes Excusable Neglect? 38.90
      - (1) Excusable Neglect Found 38.91
      - (2) Excusable Neglect Not Found 38.92
  - 2. When Relief Is Mandatory Under CCP §473(b) 38.93
  - 3. Timing: When to Request Relief Under CCP §473(b)
    - a. Within 6 Months After Entry of Default or Default Judgment 38.94
      - (1) Time Limit Computation 38.95
      - (2) 6-Month Limitation Is Jurisdictional 38.96
    - b. Within “Reasonable” Time 38.97
- C. Equitable Relief in Cases of Extrinsic Fraud or Mistake 38.98
  - 1. What Constitutes Extrinsic Fraud? 38.99
  - 2. What Constitutes Extrinsic Mistake? 38.100
  - 3. No Time Limitation for Relief Based on Extrinsic Fraud or Mistake 38.101
  - 4. Same Rules Apply to Limited Civil Cases 38.102
- D. Relief if Default Judgment Is Void 38.103
  - 1. What Constitutes a Void Judgment? 38.104
  - 2. Timing: Relief for Void Judgment May Be Requested at Any Time 38.105
- E. Relief if No Actual Notice to Defendant
  - 1. Statutory Authority to Grant Relief if No Actual Notice to Defendant 38.106
  - 2. Equitable Authority to Grant Relief if No Actual Notice to Defendant 38.107
  - 3. Timing: When to Request Relief if No Actual Notice to Defendant
    - a. Under CCP §473.5 38.108
    - b. Under Court’s Equitable Powers 38.109
- F. Relief When Court Has Assumed Jurisdiction of Attorney’s Practice 38.110
- G. Court May Condition Relief 38.111
- H. Procedure: How to Obtain Relief From Default or Default Judgment
  - 1. Motion Under CCP §473(b) 38.112
    - a. Defendant May Seek a Stay of Execution 38.113
    - b. Plaintiff May Oppose Motion for Relief 38.114
    - c. Court May Conduct Hearing on Motion for Relief 38.115
  - 2. Motion Under CCP §473.5 38.116
  - 3. Reconsideration if Motion Denied 38.117
- I. Appellate Review 38.118
VII. CHECKLISTS
- A. Checklist: Procedure for Entry of Default and Default Judgment 38.119
- B. Checklist: Procedure for Relief From Default 38.120
VIII. FORMS
- A. Form: Request for Entry of Default (Application to Enter Default) (Judicial Council Form CIV-100) 38.121
- B. Form: Declaration on Open Book Account 38.122
- C. Form: Default Judgment by Court 38.123
- D. Form: Notice of Motion to Set Aside Default and Default Judgment 38.124
- E. Form: Declaration Supporting Motion to Set Aside Entry of Default and Default Judgment 38.125
- F. Form: Order Staying Execution and Shortening Time 38.126
- G. Form: Order Setting Aside Entry of Default and Default Judgment 38.127

Dismissal

I. INTRODUCTION
- A. Scope of Chapter 39.1
- B. Governing Law 39.2
II. DESCRIPTION AND USE OF INVOLUNTARY DISMISSAL
- A. Scope of Dismissal Statutes 39.3
- B. Purpose of Dismissal Statutes 39.4
- C. Effect of Trial Court Delay Reduction Act 39.5
- D. Involuntary Dismissal Is Not Res Judicata 39.6
- E. Chart: Comparison of General Involuntary Dismissal Statutes 39.7
III. FAILURE TO SERVE SUMMONS WITHIN 3 YEARS: MANDATORY DISMISSAL
- A. When Appropriate
  - 1. Three Years to Serve Summons 39.8
  - 2. Additional 60 Days to File Proof of Service of the Summons 39.9
- B. When 3-Year Period Begins 39.10
  - 1. Fictitious Defendants Named in Complaint 39.11
  - 2. Federal Removal After Period Expires for Serving Summons on Doe Defendants 39.12
  - 3. When New Parties Added to Action 39.13
  - 4. Cases With Multiple Defendants 39.14
  - 5. Intervenor or Cross-Complainant 39.15
  - 6. Conditions That Toll Period for Service 39.16
    - a. Defendant Not Amenable to Service 39.17
    - b. Service Impossible, Impracticable, or Futile 39.18
- C. Statutory Exceptions to 3-Year Period
  - 1. Written Stipulation Extends Period 39.19
  - 2. Oral Stipulation in Court Extends Period 39.20
  - 3. Defendant’s General Appearance 39.21
    - a. Matters Constituting General Appearance 39.22
    - b. Matters Not Constituting General Appearance 39.23
- D. When Defendant Is Estopped From Dismissal 39.24
IV. FAILURE TO BRING ACTION TO TRIAL WITHIN 5 YEARS: MANDATORY DISMISSAL
- A. When Available 39.25
  - 1. When Action “Commenced” 39.26
  - 2. When Action “Brought to Trial” 39.27
    - a. When Jury Impaneled 39.28
    - b. Motions in Limine 39.29
    - c. Summary Judgment Motions 39.30
    - d. Binding Arbitrations 39.31
    - e. Demurrers 39.32
    - f. Hearings to Enter Default Judgments 39.33
    - g. Preliminary Injunctions 39.34
- B. Statutory Extensions, Excuses, and Exceptions 39.35
  - 1. Written Stipulation 39.36
    - a. Drafting Stipulation 39.37
    - b. Effect of Agreement Extending Time to Answer 39.38
  - 2. Oral Agreement in Court 39.39
  - 3. Court’s Jurisdiction Suspended, or Trial of Action Stayed or Enjoined 39.40
    - a. Appeal Pending 39.41
    - b. Writ Pending 39.42
    - c. Automatic Stay in Bankruptcy Proceedings 39.43
    - d. Defendant in Default 39.44
    - e. Period Between Party’s Death and Appointment of Personal Representative 39.45
  - 4. Impossibility, Impracticability, or Futility 39.46
    - a. Burden on Plaintiff to Prove Excuse 39.47
      - (1) Excuse Conditional on Plaintiff’s Diligence 39.48
      - (2) Plaintiff’s Duty to Inform Court of Statutory Deadline; Motion for Trial Preference 39.49
    - b. Court Not Under Mandatory Duty to Set Case Within 5-Year Period 39.50
    - c. Examples of Impossibility, Impracticability, or Futility
      - (1) Motion to Disqualify Judge (CCP §170.6) 39.51
      - (2) Counsel’s Illness or Death 39.52
      - (3) Related Action Pending; Criteria 39.53
      - (4) Multiple Defendants; Severable Actions 39.54
      - (5) Settlement Agreement 39.55
      - (6) Other Examples 39.56
    - d. Examples of Nonexcuse 39.57
  - 5. Judicial Arbitration
    - a. When Tolling Occurs 39.58
    - b. Plaintiff’s Diligence Required 39.59
  - 6. Waiver and Estoppel 39.60
    - a. Conduct Resulting in Estoppel 39.61
    - b. Conduct Insufficient for Finding of Estoppel 39.62
V. FAILURE TO BRING ACTION TO NEW TRIAL WITHIN 3 YEARS: MANDATORY DISMISSAL
- A. When Applicable; Statutory Measurement 39.63
- B. Exceptions and Tolling of Statutory Period 39.64
VI. OTHER GROUNDS FOR INVOLUNTARY DISMISSAL
- A. Inherent Authority of Court 39.65
- B. Failure to Pay Transfer Fees and Costs 39.66
- C. Failure to Appear for Trial 39.67
- D. Failure to Amend After Demurrer Sustained or Motion to Strike Granted 39.68
- E. Failure to Comply With Discovery 39.69
- F. Failure to Comply With Trial Court Delay Reduction Act 39.70
VII. PROCEDURES FOR DISMISSAL UNDER MANDATORY STATUTES
- A. Motion to Dismiss 39.71
  - 1. Who May Make Motion 39.72
  - 2. Notice; Grounds 39.73
  - 3. Supporting Papers 39.74
  - 4. Opposing Papers; Reply 39.75
- B. Order of Dismissal; Notice of Entry 39.76
- C. Attorney Fees 39.77
- D. Procedures After Court Ruling
  - 1. Defendant’s Remedies When Dismissal Denied 39.78
  - 2. Plaintiff’s Remedies When Dismissal Granted 39.79
- E. Appellate Review: Abuse of Discretion Test 39.80
VIII. DELAY IN PROSECUTION: DISCRETIONARY DISMISSAL
- A. Who Makes Motion; Court’s Authority; Grounds 39.81
  - 1. Failure to Serve Summons Within 2 Years 39.82
  - 2. Failure to Bring Action to Trial or Conditionally Settle It Within 2 Years 39.83
  - 3. Failure to Bring Action to Retrial Within 2 Years of Previous Disposition 39.84
- B. Applicable Procedures
  - 1. Motion for Discretionary Dismissal 39.85
    - a. Serve Notice 45 Days Before Hearing 39.86
    - b. File Supporting Papers 39.87
    - c. No Stay in Proceedings 39.88
  - 2. Opposition and Reply Papers; Timing 39.89
  - 3. Court’s Ruling
    - a. Criteria Court Must Consider 39.90
    - b. Burden of Proof on Defendant 39.91
    - c. Is Prejudice to Defendant Required? 39.92
- C. Effect of Denial: Motion May Be Made Again 39.93
- D. Appellate Review 39.94
IX. VOLUNTARY DISMISSAL
- A. Description and Use
  - 1. Applicability
    - a. When Dismissal Applicable 39.95
    - b. When Dismissal Inapplicable 39.96
  - 2. Effect of Trial Court Delay Reduction Act Rules 39.97
  - 3. Tactical Considerations 39.98
- B. Voluntary Dismissal Before Trial Commenced
  - 1. Dismissal as Matter of Right 39.99
  - 2. Limitations on Right to Dismiss
    - a. Cross-Complaint Seeking Affirmative Relief 39.100
    - b. Complaint in Intervention 39.101
    - c. Motion for Change of Venue Pending 39.102
    - d. Plaintiff Not Sole Party in Interest 39.103
  - 3. When “Trial Commenced” 39.104
    - a. Demurrer Sustained Without Leave to Amend 39.105
    - b. Demurrer Sustained With Leave to Amend 39.106
    - c. Summary Judgment 39.107
    - d. Partial Summary Adjudication 39.108
    - e. After Unfavorable Judicial Arbitration Award 39.109
- C. Voluntary Dismissal During Trial
  - 1. With Prejudice 39.110
  - 2. Without Prejudice
    - a. By Stipulation 39.111
    - b. By Court Order 39.112
- D. Procedures
  - 1. Request for Dismissal; Attorney’s Written Consent 39.113
  - 2. Court Order of Dismissal 39.114
  - 3. Entry of Dismissal 39.115
  - 4. Setting Aside Dismissal 39.116
- E. Effect of Dismissal
  - 1. Without Prejudice 39.117
    - a. Action Not Res Judicata 39.118
    - b. Collateral Estoppel May Be Applicable 39.119
  - 2. With Prejudice 39.120
  - 3. Costs and Fees
    - a. Costs Recoverable After Voluntary Dismissal 39.121
    - b. Attorney Fees After Voluntary Dismissal 39.122
  - 4. Sanctions on Dismissal
    - a. When Imposed 39.123
    - b. Procedures for Recovering Sanctions 39.124
- F. Review on Appeal 39.125
X. FORMS
- A. Mandatory Dismissal
  - 1. Form: Notice of Motion to Dismiss 39.126
  - 2. Form: Declaration Supporting Motion to Dismiss 39.127
  - 3. Form: Order of Dismissal 39.128
  - 4. Form: Notice of Entry of Dismissal 39.129
- B. Voluntary Dismissal
  - 1. Form: Request for Dismissal (Judicial Council Form CIV-110) 39.130
  - 2. Form: Notice of Entry of Dismissal and Proof of Service (Judicial Council Form CV-120) 39.131
  - 3. Form: Judgment of Dismissal 39.132

Case Management Conferences

I. INTRODUCTION
- A. Scope of Chapter 40.1
- B. Governing Law
  - 1. Statutes 40.2
  - 2. California Rules of Court 40.3
  - 3. Local Rules 40.4
II. DIFFERENTIAL CASE MANAGEMENT RULES
- A. Purpose 40.5
- B. Effect of Local Practice 40.6
- C. Court’s Role in Case Management
  - 1. Monitoring Case Progress 40.7
  - 2. Internal Court Management Procedures 40.8
- D. Time Standards for Disposing of Cases
  - 1. Guidelines for Disposing of Case 40.9
  - 2. General Civil Cases Defined; Exemptions 40.10
  - 3. Cases Removed From Court’s Control 40.11
- E. Differentiation of Cases to Achieve Goals
  - 1. Evaluation and Assignment 40.12
  - 2. Case Management Plans 40.13
  - 3. Exemption of Exceptional Cases 40.14
  - 4. Local Case Management Plans 40.15
- F. Case Evaluation Factors 40.16
III. PROCEDURES FOR ASSIGNMENT TO CASE MANAGEMENT PLAN
- A. Case Assignment Procedure 40.17
- B. Filing and Service
  - 1. Documents to Be Filed With Complaint and Summons
    - a. Civil Case Cover Sheet 40.18
    - b. Case Questionnaire 40.19
    - c. Time for Filing 40.20
    - d. Unnamed Doe Defendants 40.21
    - e. Cross-Complaints 40.22
    - f. Improper Refiling of Case 40.23
  - 2. Responsive Pleadings
    - a. Time for Response 40.24
    - b. Stipulated Single Continuance Policy 40.25
  - 3. Other Papers 40.26
- C. Assignment of Related Cases 40.27
- D. Coordination, Consolidation, and Severance
  - 1. Coordination 40.28
  - 2. Consolidation 40.29
  - 3. Severance or Bifurcation 40.30
- E. Discovery 40.31
- F. Peremptory Challenges [Deleted] 40.32
- G. Case Removed to Federal Court 40.33
- H. Checklist: Diagnostic Questions 40.34
- I. Suggestions for Handling Delay Reduction Cases 40.35
IV. SPECIAL RULES FOR MANAGEMENT OF COMPLEX CASES
- A. Definition 40.36
  - 1. Factors 40.37
  - 2. Provisional Designation 40.38
  - 3. Court’s Discretion 40.39
- B. Complex Case Designation 40.40
- C. Complex Case Counterdesignations
  - 1. Noncomplex Counterdesignation 40.41
  - 2. Complex Counterdesignation 40.42
  - 3. Joint Complex Designation 40.43
- D. Action by Court
  - 1. Decision on Complex Designation 40.44
  - 2. Court’s Continuing Power 40.45
- E. Electronic Service 40.46
V. CASE MANAGEMENT CONFERENCE
- A. Background 40.47
- B. Initial Case Management Review; Exemptions 40.48
- C. Referral to Arbitration 40.49
- D. Subjects Considered at Case Management Conference 40.50
- E. Meet-and-Confer Requirement 40.51
- F. Setting the Conference; Notice 40.52
- G. Attending Case Management Conference
  - 1. Who Must Attend 40.53
  - 2. Familiarity With Case 40.54
  - 3. Order Without Appearance 40.55
  - 4. Excuse From Attendance in Limited Civil Cases 40.56
- H. Additional Case Management Conference 40.57
- I. Conducting the Conference 40.58
VI. CASE MANAGEMENT STATEMENT AND ORDER
- A. Background: Former At-Issue Memorandum 40.59
- B. Case Management Statement
  - 1. Service and Filing 40.60
  - 2. Use of Judicial Council Form 40.61
  - 3. Effect of Local Rules 40.62
  - 4. Content of Case Management Statement 40.63
  - 5. Effect of Failure to Request Jury Trial 40.64
- C. Responsive Statement 40.65
  - 1. Motion to Strike 40.66
  - 2. Motion for Advisory Jury 40.67
- D. Case Management Order 40.68
- E. Setting Trial Date 40.69
- F. Checklist: Procedure for Case Management Statement 40.70
VII. COURT SETTLEMENT CONFERENCES
- A. Mandatory Settlement Conference
  - 1. Authority and Purpose 40.71
  - 2. Procedure to Set 40.72
  - 3. Settlement Conference Statements
    - a. Requirements 40.73
    - b. Example for Personal Injury Case 40.74
  - 4. Attendance at Conference
    - a. Attorneys 40.75
    - b. Attorney Familiarity With Case 40.76
    - c. Parties, Representatives of Insurers and Other Entities 40.77
    - d. Telephone Appearance 40.78
    - e. Excuses From Attendance 40.79
  - 5. Continuances 40.80
  - 6. Conduct of Conference
    - a. Judge’s Role 40.81
    - b. Presentation by Plaintiff’s Attorney 40.82
    - c. Presentation by Defendant’s Attorney 40.83
  - 7. Duty to Notify Court of Settlement 40.84
  - 8. Sanctions for Failure to Attend or Participate 40.85
- B. Voluntary Settlement Conference 40.86
- C. Informal Chambers Conference 40.87
VIII. FINAL STATUS CONFERENCE 40.88
IX. SANCTIONS 40.89
X. FORMS
- A. Form: Civil Case Cover Sheet (Judicial Council Form CM-010) [Deleted] 40.90
- B. Form: Civil Case Cover Sheet Addendum and Statement of Location (Los Angeles County Form CIV-109) 40.91
- C. Form: Case Questionnaire—For Limited Civil Cases (Under $25,000) (Judicial Council Form DISC-010) 40.92
- D. Form: Case Management Statement (Judicial Council Form CM-110) 40.93

Jury Trial Demands

I. INTRODUCTION
- A. Scope of Chapter 41.1
- B. Governing Law 41.2
II. RIGHT TO JURY
- A. When Mandated; Legal Versus Equitable Actions 41.3
- B. Specific Actions
  - 1. Legal Actions 41.4
  - 2. Equitable Actions 41.5
  - 3. Hybrid Actions 41.6
- C. Use of Advisory Jury 41.7
- D. Deciding Whether to Demand or Retain Jury; Factors 41.8
III. PROCEDURES
- A. Necessity and Time for Demand; Effect 41.9
- B. Form of Demand 41.10
- C. Deposit of Fees and Expenses; Refunds 41.11
- D. Waiver of Jury Trial
  - 1. Acts Resulting in Waiver 41.12
  - 2. Relief From Waiver
    - a. When Available 41.13
    - b. Procedures for Relief From Jury Waiver 41.14
IV. EXPEDITED JURY TRIALS
- A. Voluntary Expedited Jury Trial 41.14A
  - 1. Pretrial Procedures for Voluntary Expedited Jury Trials
    - a. Proposed Consent Order 41.14B
      - (1) Consent Order Timing 41.14C
      - (2) Consent Order Mandatory Provisions 41.14D
      - (3) Consent Order Optional Provisions 41.14E
      - (4) High/Low Agreement 41.14F
      - (5) Court Action on Proposed Consent Order 41.14G
      - (6) Binding Agreement 41.14H
    - b. Pretrial Submissions 41.14I
      - (1) Pretrial Exchange 41.14J
      - (2) Supplemental Exchange 41.14K
      - (3) Court Submissions 41.14L
    - c. Pretrial Conference 41.14M
  - 2. Trial Procedures
    - a. Jury and Jury Selection 41.14N
    - b. Case Presentation 41.14O
    - c. Verdict 41.14P
  - 3. Posttrial Motions and Appeal 41.14Q
    - a. Motion for New Trial 41.14R
    - b. Other Posttrial Motions 41.14S
    - c. Appeal 41.14T
- B. Mandatory Expedited Jury Trial 41.14U
V. JUDICIAL COUNCIL OFFICIAL JURY INSTRUCTIONS (CACI)
- A. Purpose 41.15
- B. Accuracy 41.16
- C. Public Access 41.17
- D. Updating and Amendments 41.18
- E. Use of Instructions 41.19

Trial Preference and Continuance Motions

I. INTRODUCTION
- A. Scope of Chapter 42.1
- B. Governing Law 42.2
II. MOTIONS TO ADVANCE, SPECIALLY SET, OR RESET
- A. Grounds for Motion for Trial Preference
  - 1. Avoiding 5-Year Dismissal 42.3
  - 2. Party Over Age 70 42.4
  - 3. Party Under Age 14 in Wrongful Death or Personal Injury Action 42.5
  - 4. Illness or Medical Condition 42.6
  - 5. Party Seeking Damages Related to Commission of Felony 42.7
  - 6. Other Grounds 42.8
- B. Motions to Reset 42.9
- C. Procedure
  - 1. Noticed Motion or Ex Parte Application 42.10
  - 2. Showing Required 42.11
  - 3. Service 42.12
  - 4. Setting Matter for Trial 42.13
  - 5. To Whom Motion Is Made 42.14
- D. Court’s Discretion 42.15
III. MOTIONS FOR CONTINUANCE
- A. Court’s Reluctance to Grant Continuances 42.16
- B. Grounds 42.17
  - 1. Basic Requirement of Good Cause 42.18
  - 2. Examples of Good Cause 42.19
  - 3. Other Factors to Consider 42.20
  - 4. Local Variations 42.21
  - 5. Statutory Grounds 42.22
  - 6. Inherent Power of Court to Continue 42.23
- C. Court Discretion; Factors Considered 42.24
- D. Procedure
  - 1. Noticed Motion, Ex Parte Application, and Declaration 42.25
  - 2. Payment of Expenses as Condition for Granting Motion 42.26
  - 3. Procedures When Motion Denied; Severance 42.27
- E. Appellate Review 42.28
IV. FORMS
- A. Form: Notice of Motion to Advance, Specially Set, or Reset Case for Trial 42.29
- B. Form: Declaration Supporting Motion to Advance, Specially Set, or Reset Case for Trial 42.30
- C. Form: Notice of Motion for Continuance of Trial 42.31
- D. Form: Declaration Supporting Motion for Continuance of Trial 42.32

Consolidation and Severance

I. INTRODUCTION
- A. Scope of Chapter 43.1
- B. Governing Law 43.2
II. CONSOLIDATION; GENERAL CONSIDERATIONS
- A. Overview of Procedure
  - 1. Consolidation Defined 43.3
  - 2. Purposes of Consolidation 43.4
  - 3. Tactical Considerations in Seeking or Opposing Consolidation 43.5
    - a. Settlement 43.6
    - b. Effect on Trial Date 43.7
    - c. Plaintiff’s Considerations 43.8
    - d. Defendant’s Considerations 43.9
- B. Related Procedures 43.10
  - 1. Cross-Complaint 43.11
  - 2. Joinder 43.12
  - 3. Interpleader 43.13
  - 4. Class Action 43.14
  - 5. Intervention 43.15
  - 6. Coordination 43.16
  - 7. Equitable Bill of Peace 43.17
  - 8. Stay or Abatement 43.18
  - 9. Res Judicata and Issue Preclusion 43.19
- C. Constitutionality
  - 1. Trial by Jury 43.20
  - 2. Due Process 43.21
III. MANDATORY CONSOLIDATION 43.22
- A. Actions to Recover for Child’s Injury and Death 43.23
- B. Wrongful Death Actions and Survival Actions 43.24
- C. Actions for Injuries to Employee 43.25
IV. PERMISSIVE CONSOLIDATION
- A. Principal Statute (CCP §1048(a)) 43.26
- B. Actions Pending in Same Court 43.27
- C. Effect of Trial Court Unification 43.28
- D. Factors Favoring Permissive Consolidation
  - 1. Judicial Attitude 43.29
  - 2. Trial Court Discretion 43.30
  - 3. Basic Factor: Common Question of Law or Fact 43.31
  - 4. Other Factors 43.32
    - a. Promote Efficiency, Accuracy, and Consistency 43.33
    - b. Avoid Prejudice 43.34
    - c. Respect Legislative Policy 43.35
  - 5. Coordination Standards 43.36
- E. Special Statutes Permitting Consolidation 43.37
  - 1. Relationship Between CCP §1048(a) and Special Statutes 43.38
  - 2. Contract Arbitration 43.39
  - 3. Lien Foreclosure 43.40
  - 4. Enforcement of Payment of Claims After Stop Notices 43.41
  - 5. Condemnation Proceedings 43.42
  - 6. Recovery of Assessments 43.43
  - 7. Challenging Contractor’s Performance 43.44
- F. Relationship Between California Statutes and Fed R Civ P 42(a) 43.45
V. PROCEDURE FOR CONSOLIDATION
- A. Timing 43.46
- B. Consolidation on Court’s Own Motion 43.47
- C. Stipulation for Consolidation 43.48
- D. Noticed Motion for Consolidation 43.49
- E. Opposing Consolidation 43.50
- F. Order for Consolidation 43.51
- G. Lead Case 43.52
- H. Checklist: Diagnostic Questions 43.53
VI. CONSEQUENCES OF CONSOLIDATION
- A. Distinction Between Complete and Partial Consolidation 43.54
  - 1. Complete Consolidation 43.55
  - 2. Consolidation of Related Issues for Trial 43.56
  - 3. Consolidation for Pretrial Proceedings 43.57
- B. Orders Regulating Consequences of Consolidation
  - 1. Avoiding Unnecessary Cost, Delay, or Prejudice 43.58
  - 2. Appointment of Lead Counsel 43.59
VII. APPELLATE REVIEW OF ORDERS REGARDING CONSOLIDATION
- A. Method of Review 43.60
- B. Scope of Review 43.61
- C. Consolidation on Appeal 43.62
VIII. SEVERANCE; GENERAL CONSIDERATIONS
- A. Definition and Purpose of Severance
  - 1. Definition of Severance
    - a. Severance Separates Claims, Issues, or Parties 43.63
    - b. Terms: Severance, Separate Trial, and Bifurcation 43.64
  - 2. Purposes of Severance 43.65
  - 3. Constitutional Limits on Severance 43.66
- B. Alternative Procedural Devices
  - 1. Demurrer 43.67
  - 2. Regulation of Order of Proof 43.68
IX. MANDATORY SEVERANCE
- A. Distinction Between Mandatory and Permissive Severance 43.69
- B. Particular Statutes That Require Severance
  - 1. Limitations Defense in Medical Malpractice Actions (CCP §597.5) 43.70
  - 2. Right to Recover Punitive Damages (CC §§3294–3295) 43.71
  - 3. Issues of Law in Certain Cases (CCP §592) 43.72
  - 4. Unconscionability of Contract (CC §1670.5) 43.73
  - 5. Compatibility of Public Uses in Consolidated Eminent Domain Proceedings (CCP §1260.020) 43.74
  - 6. Child Custody and Support Issues (CC §4600.6) 43.75
X. PERMISSIVE SEVERANCE
- A. Principal Statute (CCP §1048(b)) 43.76
- B. Other Statutes That Permit Severance 43.77
  - 1. Any Issue May Be Tried Before Any Other Issue (CCP §598) 43.78
  - 2. Special Defenses Not Involving Merits (CCP §597) 43.79
  - 3. Proper But Improvident Joinder of Parties (CCP §379.5) 43.80
- C. Relationship Between CCP §§1048(b) and 598 43.81
- D. Relationship Between California Statutes and Federal Rules 43.82
- E. Judicial Attitude Toward Severance
  - 1. General Considerations 43.83
  - 2. Other Factors Affecting Severance 43.84
    - a. Promote Efficiency 43.85
    - b. Avoid Prejudice 43.86
    - c. Simplify Case 43.87
XI. PROCEDURE FOR SEVERANCE
- A. Timing 43.88
- B. Motion Made by Party or on Court’s Own Motion 43.89
- C. Stipulation to Severance and Proposed Order 43.90
- D. Preparing Motion for Severance 43.91
- E. Opposing Severance 43.92
- F. Checklist: Diagnostic Questions 43.93
- G. Checklist: Procedure for Motion for Severance 43.94
XII. CONSEQUENCES OF SEVERANCE
- A. Priority of Severed Actions, Claims, or Issues 43.95
- B. Stay of Discovery 43.96
- C. Same Jury or Different Juries 43.97
- D. When Posttrial Motions May Be Made on Severed Actions and Issues 43.98
XIII. APPELLATE REVIEW OF SEVERANCE ORDERS
- A. Review of Orders Granting or Denying Severance
  - 1. Prejudgment (Writ) 43.99
  - 2. Postjudgment (Appeal) 43.100
  - 3. Scope of Review 43.101
- B. Appeal of Judgment on Merits of Less Than All Claims 43.102
XIV. FORMS
- A. Consolidation
  - 1. Form: Notice of Motion to Consolidate Actions or Issues 43.103
  - 2. Form: Declaration Supporting Motion to Consolidate Actions or Issues 43.104
  - 3. Form: Order Consolidating Actions or Issues 43.105
- B. Severance
  - 1. Form: Stipulation to Sever; Order 43.106
  - 2. Form: Notice of Motion to Sever Actions or Issues 43.107
  - 3. Form: Order Severing Actions or Issues 43.108

Coordination

I. INTRODUCTION
- A. Scope of Chapter 44.1
- B. Governing Law
  - 1. Coordination Statutes 44.2
  - 2. California Rules of Court 44.3
  - 3. Local Rules 44.4
II. OVERVIEW 44.5
- A. Cases That Have Been Coordinated 44.6
- B. Standards for Coordination
  - 1. Threshold Requirement 44.7
  - 2. Test for Appropriateness
    - a. General Rule 44.8
    - b. Factors to Consider 44.9
- C. Declaration of Complexity 44.10
III. PROCEDURES IN NONCOMPLEX CASES
- A. Motion to Transfer Action for Coordination
  - 1. Filing Motion 44.11
  - 2. Findings and Order 44.12
- B. Conflicting Court Orders 44.13
IV. PROCEDURES IN COMPLEX CASES
- A. Petition for Coordination
  - 1. Practical Considerations 44.14
  - 2. Motion in Trial Court 44.15
  - 3. Contents of Petition 44.16
  - 4. Notice of Submission of Coordination Petition 44.17
  - 5. Filing and Service of Documents 44.18
- B. Proceedings After Petition Submitted
  - 1. Order Assigning Coordination Motion Judge 44.19
    - a. Stay of Proceedings 44.20
    - b. Peremptory Challenge of Coordination Motion Judge 44.21
  - 2. Responding to Petition 44.22
  - 3. Summary Denial of Petition 44.23
  - 4. Hearing of Petition
    - a. When Hearing Required 44.24
    - b. Notice of Hearing 44.25
    - c. Who May Appear 44.26
    - d. Judge May Hear Specified Issues First 44.27
    - e. Limited Evidence Permitted 44.28
  - 5. Filing and Service of Order 44.29
  - 6. When Petition Granted
    - a. Continuing Authority of Coordination Motion Judge 44.30
    - b. Stay of Further Proceedings 44.31
    - c. Designation of Appellate Court 44.32
  - 7. Denial of Petition in Whole or in Part 44.33
  - 8. Review by Writ 44.34
- C. Pretrial Proceedings
  - 1. Appointment of Coordination Trial Judge 44.35
  - 2. Peremptory Challenge of Coordination Trial Judge 44.36
  - 3. Preliminary Trial Conference 44.37
  - 4. Remand of Action or Claim 44.38
  - 5. Transfer of Action or Claim 44.39
  - 6. Add-on Cases 44.40
V. CHECKLIST: PROCEDURE FOR PETITION FOR COORDINATION IN COMPLEX CASES 44.41
VI. FORMS
- A. Coordination in Noncomplex Case
  - 1. Form: Motion to Transfer Action for Coordination 44.42
  - 2. Form: Declaration in Support of Motion to Transfer for Coordination 44.43
- B. Coordination in Complex Cases
  - 1. Form: Petition for Coordination 44.44
  - 2. Form: Declaration in Support of Petition for Coordination 44.45
  - 3. Form: Notice of Submission of Coordination Petition 44.46
  - 4. Stay Order
    - a. Form: Application for Stay Order 44.47
    - b. Form: Statement Opposing Application for Stay Order 44.48
  - 5. Other Parties’ Support or Opposition
    - a. Form: Statement Opposing Petition for Coordination 44.49
    - b. Form: Statement Supporting Petition for Coordination 44.50
  - 6. Preliminary Trial Conference
    - a. Form: Proposed Preliminary Trial Conference Agenda 44.51
    - b. Form: Proposed Preliminary Trial Conference Order 44.52
  - 7. Remand or Transfer Motions
    - a. Form: Motion for Remand of Action or Claim 44.53
    - b. Form: Motion for Transfer of Action or Claim 44.54
  - 8. Form: Petition to Coordinate Add-on Case 44.55

Alternative Dispute Resolution

I. INTRODUCTION
- A. Scope of Chapter 45.1
- B. Governing Law 45.2
II. ADVANTAGES AND LIMITATIONS 45.3
III. WHEN TO CONSIDER ALTERNATIVE DISPUTE RESOLUTION
- A. Before a Dispute Arises 45.4
  - 1. Contracts 45.5
  - 2. Internal Grievance Procedures 45.6
- B. After a Dispute Arises 45.7
IV. DISCUSSING ADR WITH CLIENT AND OPPOSING COUNSEL
- A. Client 45.8
- B. Opposing Counsel 45.9
V. METHODS OF ALTERNATIVE DISPUTE RESOLUTION
- A. Negotiation 45.10
  - 1. Initial Process
    - a. The Opening 45.11
    - b. Information Exchange 45.12
  - 2. Tactics
    - a. Bargaining 45.13
    - b. Breaking Through Impasse 45.14
- B. Mediation 45.15
  - 1. Process
    - a. Mediation Confidentiality Disclosure 45.15A
    - b. Mediator Selection 45.16
    - c. Mediation Session 45.17
    - d. Preparation 45.18
    - e. Mediation Styles 45.19
  - 2. Types of Mediation
    - a. Limited Mediation 45.20
    - b. Hybrid Mediation-Arbitration 45.21
- C. Arbitration by Contractual Agreement 45.22
  - 1. Contractual Provisions
    - a. General Clause 45.23
    - b. Drafting Considerations 45.24
    - c. Negotiated Submission Agreement 45.25
  - 2. Enforceability of Arbitration Agreement 45.26
    - a. Issues Affecting Enforceability 45.27
      - (1) Who Decides Issue of Enforceability—The Court or the Arbitrator? 45.27A
      - (2) Did Parties Agree to Arbitrate? 45.27B
      - (3) Was Arbitration Provision Obtained by Fraud or Duress? 45.27C
      - (4) Did Party Waive Right to Compel Arbitration? 45.27D
      - (5) Is Party Estopped to Assert Right to Compel Arbitration? 45.27E
      - (6) Do Other Principles Prevent Enforcement of Arbitration Provision? 45.27F
    - b. Unconscionability 45.28
      - (1)  Two Aspects of Unconscionability  45.28A
        
        (a)  Procedural Unconscionability  45.28B
        
        (b)  Substantive Unconscionability  45.28C
      - (2) Class Action Waivers 45.28D
    - c. Nonwaivable Public Rights 45.29
    - d. Severability 45.30
  - 3. Arbitration Procedures
    - a. Enforcement of Right to Arbitrate 45.31
    - b. Petition to Compel Arbitration 45.32
    - c. Petition to Appoint Arbitrator 45.33
    - d. Response to Petitions 45.34
    - e. Order Compelling or Denying Arbitration 45.35
    - f. Appeal from Order Compelling or Denying Arbitration 45.36
    - g. Removal of Arbitrator After Appointment 45.37
  - 4. Arbitration Process 45.38
    - a. Arbitrator Selection 45.39
    - b. Discovery 45.40
    - c. Witness and Document Lists 45.41
    - d. Involuntary Dismissal 45.42
    - e. Arbitration Hearing 45.43
  - 5. Effect of Arbitration on Other Proceedings 45.44
  - 6. Arbitration Awards and Remedies
    - a. Award 45.45
    - b. Remedies 45.46
    - c. Fees and Costs 45.47
    - d. Award Finality 45.48
    - e. Incremental or Partial Final Awards 45.48A
    - f. Confirming, Correcting, or Vacating Award 45.49
    - g. Appeal 45.50
  - 7. Neutral Arbitrator Ethics Rules 45.51
- D. Judicial Arbitration 45.52
- E. Settlement Conference
  - 1. Process 45.53
  - 2. Court-Sponsored Conferences
    - a. Mandatory Settlement Conference 45.54
    - b. Voluntary Settlement Conference 45.55
  - 3. Private Settlement Conference 45.56
- F. Mini-Trial 45.57
- G. Trial by Private Judge 45.58
  - 1. Trial by Referee
    - a. Procedure 45.59
    - b. Advantages and Disadvantages 45.60
  - 2. Trial by Temporary Judge
    - a. Appointment 45.61
    - b. Authority 45.62
    - c. Differences Between Temporary Judges and Referees 45.63
- H. Summary Jury Trial 45.64
VI. FORMS
- A. Form: Sample Dispute Resolution Agreement 45.65
- B. Form: Negotiated Submission Agreement 45.66
- C. Form: Petition to Confirm, Correct, or Vacate Contractual Arbitration Award (Alternative Dispute Resolution) (Judicial Council Form ADR-106) 45.67

Negotiation and Case Settlement

I. INTRODUCTION
- A. Scope of Chapter 46.1
- B. Terminology 46.2
- C. The Purpose of Settlement 46.3
II. PREPARING FOR SETTLEMENT NEGOTIATION 46.4
- A. Reviewing Facts and Law
  - 1. Investigate Facts 46.5
    - a. Pleadings, Discovery, and Other Documents 46.6
    - b. Other Sources of Information 46.7
  - 2. Research Law 46.8
- B. Counseling the Client: Pre-Negotiation Meetings 46.9
- C. Developing Negotiation Strategy 46.10
- D. Finalizing Authority 46.11
III. ENGAGING IN SETTLEMENT NEGOTIATION
- A. Opening the Negotiation 46.12
  - 1. Set the Right Tone 46.13
  - 2. Introduce Problem-Solving Orientation 46.14
  - 3. Convey Your Client’s Perspective and Aspirations for Settlement 46.15
  - 4. Agree on Agenda, Goals, and Process 46.16
  - 5. Negotiation Styles 46.17
- B. Exchanging Information 46.18
  - 1. The Information-Sharing Process 46.19
  - 2. Listening and Questioning Techniques 46.20
    - a. Active Listening Techniques 46.21
    - b. Effective Questioning Techniques 46.22
  - 3. Managing the Exchange of Information 46.23
- C. The Numbers Game: Opening Offers and Demands, Concessions, and Hard-Bargaining Tactics 46.24
  - 1. Knowing Your Reference Points 46.25
  - 2. Making Opening Offers and Demands 46.26
  - 3. Concessions 46.27
  - 4. Hard-Bargaining Tactics 46.28
- D. Problem-Solving Approaches to Negotiation 46.29
  - 1. Focus on Interests More Than Positions 46.30
  - 2. Expand the Settlement Pie 46.31
  - 3. Develop Creative Settlement Options 46.32
  - 4. Tips for Breaking Through Impasse
    - a. Use Your Leverage 46.33
    - b. Use Objective Standards 46.34
    - c. Use Objective Procedures 46.35
    - d. Name the Dynamic 46.36
    - e. Exchange More Information 46.37
    - f. Take a Break and Reiterate Problem-Solving 46.38
    - g. Carve Out Issues That Cannot Be Negotiated 46.39
    - h. Reexamine Your Position 46.40
- E. Checklist: Negotiation 46.41
IV. PREPARING THE SETTLEMENT AGREEMENT 46.42
- A. Common Terms of a Settlement Agreement 46.43
  - 1. Parties 46.43A
  - 2. Claims Being Settled 46.43B
  - 3. Statement That Settlement Is Voluntary 46.43C
  - 4. Consideration 46.43D
  - 5. When Performance Will Occur 46.43E
  - 6. Release 46.43F
  - 7. Covenant Not to Execute 46.43G
  - 8. Dismissal of Pending Claims or Actions 46.43H
  - 9. Choice of Law 46.43I
  - 10. Restricted Disclosure 46.43J
  - 11. Nonassignment of Claims 46.43K
  - 12. No Admission of Fault 46.43L
  - 13. No Interpretation Against Drafting Party 46.43M
  - 14. Remedies for Breach 46.43N
  - 15. Indemnification 46.43O
- B. Executing a Settlement Agreement 46.44
V. ENFORCING THE SETTLEMENT AGREEMENT 46.45
- A. Statutory Enforcement 46.46
- B. Nonstatutory Enforcement 46.47
VI. FORMS
- A. Form: Sample Demand Letter—Wrongful Death Case 46.48
- B. Form: Sample Demand Letter—Personal Injury Case 46.49
- C. Form: Notice of Settlement of Entire Case (Judicial Council Form CM-200) 46.50

Offers to Allow Judgment (CCP §998)

I. INTRODUCTION
- A. Scope of Chapter 47.1
- B. Governing Law 47.2
II. NATURE OF OFFER
- A. What Is a CCP §998 Offer? 47.3
- B. Actions in Which Offer May Be Made 47.4
- C. Consequences of Refusing Offer 47.5
  - 1. Plaintiff Refuses Defendant’s Offer 47.6
  - 2. Defendant Refuses Plaintiff’s Offer 47.7
  - 3. Defining “More Favorable Judgment” 47.8
- D. Use of Offer as Evidence at Trial 47.9
III. PROCEDURES FOR MAKING AND ACCEPTING OFFER
- A. Time for Offer 47.10
- B. Format of Offer 47.11
- C. Terms of Offer
  - 1. Defendant’s Offer to Plaintiff 47.12
  - 2. Plaintiff’s Offer to Defendant 47.13
  - 3. Nonmonetary Terms of Offer 47.14
  - 4. Good Faith Requirement 47.15
- D. Joint Offers 47.16
  - 1. One Defendant Making Offer to Multiple Plaintiffs 47.17
  - 2. Multiple Defendants Making Offer to One Plaintiff 47.18
  - 3. One Plaintiff Making Offer to Multiple Defendants 47.19
  - 4. Multiple Plaintiffs Making Offer to One Defendant 47.20
- E. When to Accept Offer 47.21
- F. How to Accept Offer 47.22
- G. Revocation of Offer 47.23
- H. Counteroffer and Rejection 47.24
- I. Multiple Offers 47.24A
- J. Effect of Death of Offeror or Offerees 47.25
IV. ENTRY OF JUDGMENT AND RELIEF FROM JUDGMENT
- A. Entry of Judgment Based on Accepted Offer 47.26
- B. Finality of Judgment 47.27
- C. Motion for Relief From Judgment 47.28
- D. Appellate Review 47.29
V. FORMS
- A. Form: Defendant’s CCP §998 Offer to Compromise, Plaintiff’s Acceptance, and Request to Enter Judgment 47.30
- B. Form: Plaintiff’s CCP §998 Offer to Compromise, Defendant’s Acceptance, and Request to Enter Judgment 47.31

Submitted Case and Consent Judgment

I. INTRODUCTION
- A. Scope of Chapter 48.1
- B. Governing Law 48.2
II. SUBMISSION OF AGREED CASE
- A. Submission Without Filing Action
  - 1. Prerequisites
    - a. Controversies That May Be Submitted 48.3
    - b. Matters Should Merit Settlement in Public Interest 48.4
    - c. Declaration of Good Faith 48.5
    - d. Agreed Statement 48.6
    - e. Jurisdiction 48.7
  - 2. Examples of Agreed Case 48.8
  - 3. Comparison With Declaratory Relief 48.9
  - 4. Judgment and Appeal 48.10
- B. Submission After Filing Action
  - 1. Nature and Characteristics 48.11
  - 2. Comparison With Motion for Judgment on Pleadings 48.12
  - 3. Stipulation 48.13
  - 4. Procedural Considerations 48.14
- C. Checklist: Procedure for Submission of Case 48.15
III. CONSENT JUDGMENTS
- A. General Principles
  - 1. When to Use Consent Judgment
    - a. Settlement Calls for Future Performance 48.16
    - b. Using Conditional or Delayed Entry 48.17
  - 2. Effects of Consent Judgment
    - a. Res Judicata 48.18
    - b. Appealability 48.19
    - c. Bankruptcy Discharge 48.20
  - 3. Attorney’s Authority to Consent 48.21
- B. Drafting Agreement or Stipulation 48.22
  - 1. Suggested Terms 48.23
    - a. Claims and Actions Covered 48.24
    - b. Terms of Payment 48.25
    - c. Terms of Entry of Judgment 48.26
  - 2. Interpretation as Contract 48.27
- C. Entry of Judgment
  - 1. Procedure
    - a. Required Papers 48.28
    - b. Entry by Clerk 48.29
    - c. Local Variations 48.30
  - 2. Function of Judge 48.31
  - 3. Vacating Consent Judgment 48.32
IV. FORMS
- A. Submission of Agreed Case
  - 1. Form: Submission of Agreed Case 48.33
  - 2. Form: Declaration Supporting Submission of Agreed Case 48.34
  - 3. Form: Stipulation to Agreed Facts in Pending Action 48.35
- B. Consent Judgment
  - 1. Form: Stipulation for Judgment 48.36
  - 2. Form: Judgment Pursuant to Stipulation 48.37

Sliding Scale and Structured Settlements

I. INTRODUCTION
- A. Scope of Chapter 49.1
- B. Governing Law 49.2
II. SLIDING SCALE SETTLEMENTS
- A. Defined 49.3
- B. Effect of Good Faith Sliding Scale Agreement 49.4
- C. Good Faith Standards: Tech-Bilt and Abbott Ford 49.5
  - 1. Value of Consideration Given 49.6
  - 2. Conduct of Nonsettling Defendants 49.7
  - 3. Factors Considered in Determining Good Faith 49.8
- D. Entering Into Sliding Scale Settlement
  - 1. Types of Cases 49.9
  - 2. Timing 49.10
  - 3. Impact of Fair Responsibility Act of 1986 (Proposition 51) 49.11
- E. Terms of Sliding Scale Settlement Agreement 49.12
  - 1. Amount of Guaranty 49.13
  - 2. Value of Consideration Given 49.14
  - 3. Minimum Unconditional Payment 49.15
  - 4. Veto and Settlement Sharing Provisions 49.16
  - 5. No-Interest Loans 49.17
  - 6. Good Faith Requirement 49.18
  - 7. Other Provisions 49.19
- F. Procedural Requirements
  - 1. Notify Opposing Counsel and Court 49.20
  - 2. Motion for Good Faith Determination 49.21
  - 3. Burden of Proof 49.22
  - 4. Discovery 49.23
  - 5. Review of Good Faith Determination 49.24
- G. Trial Considerations 49.25
III. STRUCTURED SETTLEMENTS
- A. Defined 49.26
- B. When Structured Settlement Used; Parties’ Objectives 49.27
- C. Economic Characteristics
  - 1. Settlement Annuities 49.28
  - 2. Independent Settlement Annuity Marketplace 49.29
    - a. Structured Settlement Brokers 49.30
    - b. Economists and Valuation Services 49.31
    - c. Affiliated Life Insurance Company Programs 49.32
  - 3. Common Payment Formats
    - a. Lifetime Benefits 49.33
    - b. Annuity Certain 49.34
    - c. Providing for Inflation 49.35
    - d. Future Lump Sums 49.36
    - e. Deferred Payments 49.37
    - f. Other Funding Vehicles 49.38
  - 4. Economic Advantages of Structured Settlements 49.39
    - a. Conservation of Funds 49.40
    - b. Tax Savings 49.41
    - c. Age-Rated Annuities 49.42
    - d. Yields on Minors’ Compromises 49.43
    - e. Elasticity of Lifetime Benefits 49.44
  - 5. Economic Limitations of Structured Settlements 49.45
    - a. Inflation 49.46
    - b. Financial Emergencies 49.47
  - 6. Other Considerations 49.48
- D. Tax Treatment of Structured Settlements
  - 1. Basic Authorities 49.49
  - 2. Assignments Under IRC §130 49.50
  - 3. Tax Issues in Settling Employment Disputes 49.51
  - 4. Constructive Receipt and Economic Benefit Doctrines 49.52
- E. Reliability of the Guaranty of Future Payment
  - 1. Reliance on Initial Promisor 49.53
  - 2. Reliance on Assignee 49.54
  - 3. Independent Ratings of Insurance Companies 49.55
- F. Estate and Benefits Planning; Trusts
  - 1. Estate and Government Benefits Planning 49.56
  - 2. Trusts 49.57
- G. Attorney Fees
  - 1. Primacy of Present Value 49.58
  - 2. Periodic Payment of Attorney Fee 49.59

Good Faith Settlement

I. INTRODUCTION
- A. Scope of Chapter 50.1
- B. Governing Law 50.2
II. OVERVIEW
- A. Impact of Good Faith Determination 50.3
- B. Equitable Nature of Proceeding 50.4
- C. Parties That May Move for Good Faith Ruling 50.5
- D. Procedural Overview 50.6
- E. Impact of Fair Responsibility Act of 1986 on Good Faith Determinations 50.7
III. OBTAINING GOOD FAITH DETERMINATION
- A. Notice of Motion
  - 1. Content 50.8
  - 2. Service 50.9
- B. Factors Affecting Good Faith Determinations
  - 1. Burden of Proof 50.10
  - 2. Reasonable Range Test of Tech-Bilt 50.11
  - 3. Rough Approximation of Plaintiff’s Total Recovery 50.12
  - 4. Rough Approximation of Settling Defendant’s Proportion of Liability 50.13
  - 5. Amount Paid in Settlement 50.14
  - 6. Allocation of Proceeds Among Plaintiffs 50.15
  - 7. Recognition That Settling Defendants Should Pay Less in Settlement Than After Trial 50.16
  - 8. Financial Condition of Settling Defendant 50.17
  - 9. Insurance Coverage and Policy Limits of Settling Defendant 50.18
  - 10. Fraud, Collusion, or Misconduct of Settling Parties 50.19
- C. Declarations and Evidence Supporting Tech-Bilt Factors 50.20
- D. Alternative Method: Notice of Settlement
  - 1. Notice of Settlement
    - a. Content 50.21
    - b. Service 50.22
  - 2. Opposing Application for Determination of Good Faith Settlement: Motion to Contest Good Faith
    - a. Content 50.23
    - b. Service 50.24
IV. OPPOSITION TO MOTION FOR GOOD FAITH DETERMINATION 50.25
V. REPLY PAPERS 50.26
VI. THE HEARING 50.27
VII. POSTHEARING 50.28
VIII. FORMS
- A. Form: Notice of Motion to Determine Good Faith of Settlement 50.29
- B. Form: Declaration Supporting Motion to Determine Good Faith of Settlement 50.30
- C. Form: Notice of Settlement 50.31
- D. Form: Application for Determination of Good Faith of Settlement 50.32
- E. Form: Proposed Order Determining Good Faith of Settlement 50.33
- F. Form: Declaration Supporting Application for Determination of Good Faith of Settlement 50.34

CALIFORNIA CIVIL PROCEDURE BEFORE TRIAL

(4th Edition)

June 2019

TABLE OF CONTENTS

File Name	Book Section	Title
CH01	Chapter 1	Accepting Cases and Implementing Office Procedures
01-048	§1.48	Questionnaire: Client Interview (Individuals)
01-049	§1.49	Questionnaire: Client Interview (Businesses)
CH02	Chapter 2	Avoiding Conflicts of Interest
02-061	§2.61	Sample Letter to Client: Adverse Representation
02-062	§2.62	Sample Letter to Corporate Officer: Dual Representation
CH03	Chapter 3	Representation Agreements
03-044	§3.44	Sample Contingent Fee Agreement
03-045	§3.45	Sample Fee Agreement Based on Hourly Rate for Services
03-046	§3.46	Disclosure and Consent on Fee Splitting (Referral)
03-047	§3.47	Disclosure and Consent on Fee Splitting (Association)
03-048	§3.48	Attorney’s Lien Agreement
CH04	Chapter 4	Changing Representation During Suit
04-055	§4.55	Notice and Substitution of Attorney
04-057	§4.57	Notice of Motion for Substitution of Attorney
04-058	§4.58	Declaration of Client Supporting Motion for Substitution of Attorney
04-059	§4.59	Declaration of Attorney Supporting Motion for Substitution of Attorney
04-060	§4.60	Order Substituting Attorney
04-061	§4.61	Association of Attorney
04-062	§4.62	Application to Appear as Counsel Pro Hac Vice; Notice of Hearing
04-063	§4.63	Consent by Client to Continued Representation (Cal Rules of Prof Cond 3.7)
04-067	§4.67	Notice of Attorney’s Withdrawal Under CCP §285.1 (Dissolution of Marriage Case)
04-068	§4.68	Demand for Appointment of Attorney or Personal Appearance
CH06	Chapter 6	California Jurisdiction
06-111	§6.111	CHECKLIST: DIAGNOSTIC QUESTIONS
CH09	Chapter 9	Prelitigation Claims, Notices, and Petitions for Guardians Ad Litem
09-076	§9.76	Claim Against Public Entity
09-077	§9.77	Application for Leave to Present Late Claim
09-078	§9.78	Petition for Leave to File Civil Action
09-079	§9.79	Order Permitting Suit to Be Filed
09-080	§9.80	Allegation in Complaint: Compliance With Claim Requirement
09-081	§9.81	Notice of Intention to Sue Health Care Provider
09-082	§9.82	Certificate of Merit
09-083	§9.83	Certificate of Reliance on Res Ipsa Loquitur or Failure to Inform
09-084	§9.84	Certificate of Impending Impairment
09-085	§9.85	Certificate of Inability to Obtain Consultation
09-086	§9.86	Allegation in Complaint: Compliance With Claim Requirement
09-088	§9.88	Petition for Appointment of Guardian Ad Litem for Plaintiff
09-089	§9.89	Petition for Appointment of Guardian Ad Litem for Defendant
09-090	§9.90	Order Appointing Guardian Ad Litem
09-091	§9.91	Petition by Guardian Ad Litem for Authorization to Employ Attorney and for Approval of Fee; Order
09-092	§9.92	Petition for Order Authorizing Compromise of Claim
09-093	§9.93	Order Approving Compromise of Claim of Minor or Person with a Disability
09-094	§9.94	Petition for Order Terminating Appointment of Guardian Ad Litem
09-095	§9.95	Order Terminating Appointment of Guardian Ad Litem
CH11	Chapter 11	Pleadings and Court Papers
11-034	§11.34	CHECKLIST: PROCEDURE FOR PREPARING COURT PAPERS
CH12	Chapter 12	Noticed Motions
12-043	§12.43	Checklist: Procedures for Motions and Hearings
12-109	§12.109	Checklist: Procedure for Responding to Noticed Motion
12-170	§12.170	Notice of Motion
12-171	§12.171	Memorandum in Support of Motion
12-172	§12.172	Declaration Supporting Motion
12-173	§12.173	Request for Judicial Notice
12-174	§12.174	Application for Order Shortening Time; Order
12-175	§12.175	Proposed Order Shortening Time
12-176	§12.176	Stipulation Extending Time
12-177	§12.177	Memorandum in Opposition to Motion
12-178	§12.178	Declaration Opposing Motion
12-179	§12.179	Notice of Ruling on Motion
12-180	§12.180	Proposed Order
12-181	§12.181	Application for Order Extending Time
12-182	§12.182	Proposed Order Extending Time
12-183	§12.183	Order
CH13	Chapter 13	Ex Parte Motions and Orders to Show Cause
13-014	§13.14	Checklist: Procedure for Application for Ex Parte Order
13-017	§13.17	Checklist: Procedure for Application for Order to Show Cause
13-018	§13.18	Application for Ex Parte Order
13-019	§13.19	Proposed Ex Parte Order
13-020	§13.20	Application for Order to Show Cause and Order
CH15	Chapter 15	Complaints
15-020	§15.20	Other Person
15-035	§15.35	Sample Complaint
CH16	Chapter 16	Amending Complaints
16-019	§16.19	Amendment to Complaint
16-020	§16.20	Stipulation for Filing Amended Complaint or Amendment to Complaint; Order
16-021	§16.21	Request for Order Allowing Amendment to Complaint
16-022	§16.22	Order Allowing Amendment to Complaint
16-023	§16.23	Amendment Substituting True Name for Fictitious Name; Order
16-024	§16.24	Notice of Motion to Amend Complaint
16-025	§16.25	Order Allowing Amendment of Complaint
CH17	Chapter 17	Service of Summons
17-077	§17.77	CHECKLIST: PROCEDURE FOR SERVING SUMMONS ON PARTIES
CH18	Chapter 18	Service of Papers
18-045	§18.45	Declaration of Service by Mail (Documents Deposited in Mail)
18-046	§18.46	Declaration of Service by Mail (Documents Placed for Collection and Mailing)
18-047	§18.47	Attorney Certification of Service by Mail (Documents Deposited in Mail)
CH19	Chapter 19	Motions to Quash
19-030	§19.30	CHECKLIST: PROCEDURE FOR CHALLENGING JURISDICTION
CH20	Chapter 20	Motions to Change Venue
20-036	§20.36	CHECKLIST: PROCEDURE FOR MOTION FOR CHANGE OF VENUE
20-037	§20.37	Notice of Motion for Change of Venue
20-038	§20.38	Notice of Motion to Retain Venue
20-039	§20.39	Declaration Supporting Motion for Change of Venue on Wrong Court Grounds
20-040	§20.40	Declaration by Defendant’s Attorney When Motion Made on Wrong Court Grounds
20-041	§20.41	Declaration Supporting Motion for Change of Venue for Convenience of Witnesses and Ends of Justice
20-042	§20.42	Stipulation and Order Changing Venue
CH21	Chapter 21	Motions to Stay or Dismiss for Inconvenient Forum
21-024	§21.24	CHECKLIST: DIAGNOSTIC QUESTIONS
21-025	§21.25	CHECKLIST: PROCEDURE FOR MOTION TO DISMISS OR STAY FOR INCONVENIENT FORUM
21-026	§21.26	Notice of Motion to Dismiss or Stay Action
21-027	§21.27	Declaration Supporting Motion to Dismiss or Stay Action
21-028	§21.28	Request to Take Judicial Notice to Support or Oppose Motion to Dismiss or Stay Action
21-029	§21.29	Order Dismissing or Staying Action
CH22	Chapter 22	Removal to Federal Court
22-097	§22.97	CHECKLIST: PROCEDURE FOR EVALUATING REMOVAL OF ACTION TO FEDERAL COURT
22-098	§22.98	Notice of Removal
22-099	§22.99	Joinder in Notice of Removal
CH23	Chapter 23	Demurrers
23-037	§23.37	No Certificate of Merit in Action for Malpractice of Architect, Professional Engineer, or Land Surveyor
23-072	§23.72	Checklist: Defendant’s Diagnostic Questions
23-073	§23.73	Checklist: Plaintiff’s Diagnostic Questions
23-074	§23.74	CHECKLIST: PROCEDURE FOR DEMURRER TO COMPLAINT
23-075	§23.75	Notice of Hearing on Demurrer to Complaint
23-076	§23.76	Demurrer to Complaint
23-077	§23.77	Demurrer to Cross-Complaint
23-078	§23.78	Demurrer to Answer
23-079	§23.79	Notice of Decision Sustaining or Overruling Demurrer to Complaint
CH24	Chapter 24	Motions to Strike
24-021	§24.21	CHECKLIST: DIAGNOSTIC QUESTIONS
24-022	§24.22	CHECKLIST: PROCEDURE FOR MOTION TO STRIKE
24-023	§24.23	Notice of Motion to Strike
24-024	§24.24	Order Granting Motion to Strike
CH24A	Chapter 24A	Anti-SLAPP Motions
24A-134	§24A.134	CHECKLIST TO DETERMINE IF ANTI-SLAPP STATUTE APPLIES
24A-135	§24A.135	Anti-SLAPP Motion and Supporting Papers
24A-136	§24A.136	Declaration Example 1
24A-137	§24A.137	Declaration Example 2
24A-138	§24A.138	Declaration Example 3
24A-139	§24A.139	Request for Judicial Notice
24A-140	§24A.140	Proposed Order
24A-141	§24A.141	Notice to Judicial Council
CH25	Chapter 25	Answers
25-107	§25.107	CHECKLIST: DIAGNOSTIC QUESTIONS
25-108	§25.108	Stipulation Extending Time to Respond to Complaint; Order
25-109	§25.109	Ex Parte Application for Extension of Time to Respond to Complaint; Order
25-110	§25.110	Unverified Answer
25-111	§25.111	Verified Answer
25-112	§25.112	Verification of Answer
25-113	§25.113	Amendment to Answer
25-114	§25.114	Notice of Motion
25-115	§25.115	Memorandum in Support of Motion
25-116	§25.116	Declaration
25-117	§25.117	Order
CH26	Chapter 26	Cross-Complaints
26-056	§26.56	CHECKLIST: DIAGNOSTIC QUESTIONS
26-057	§26.57	CHECKLIST: PROCEDURE FOR PREPARING CROSS-COMPLAINT
26-058	§26.58	Notice of Motion for Leave to File Cross-Complaint
26-059	§26.59	Sample Declaration Supporting Motion for Leave to File Cross-Complaint
26-060	§26.60	Order Granting Leave to File Cross-Complaint
CH27	Chapter 27	Motions for Judgment on the Pleadings
27-025	§27.25	CHECKLIST: DIAGNOSTIC QUESTIONS
27-026	§27.26	CHECKLIST: PROCEDURE FOR PREPARING MOTION FOR JUDGMENT ON THE PLEADINGS
27-027	§27.27	Notice of Motion for Judgment on Pleadings
27-028	§27.28	Order for Judgment on Pleadings
27-029	§27.29	Judgment on Pleadings
27-030	§27.30	Memorandum Supporting Motion for Judgment on Pleadings
CH28	Chapter 28	Interpleader
28-045	§28.45	Notice of Motion for Discharge and Substitution or Dismissal
28-046	§28.46	Declaration Supporting Motion for Discharge and Substitution or Dismissal
28-047	§28.47	Order Discharging Defendant and Substituting Claimant as Defendant
28-048	§28.48	Complaint in Interpleader
28-049	§28.49	Interlocutory Order in Interpleader by Cross-Complaint
28-050	§28.50	Final Judgment in Interpleader
CH29	Chapter 29	Security for Costs
29-062	§29.62	CHECKLIST: PROCEDURE FOR MOTION FOR SECURITY FOR COSTS
29-063	§29.63	Notice of Motion for Order Requiring Security
29-064	§29.64	Undertaking (CCP §995.330)
29-065	§29.65	Notice of Motion for Security for Costs and Attorney Fees (CCP §1030)
29-066	§29.66	Declaration Supporting Motion for Order Requiring Security (CCP §1030)
CH30	Chapter 30	Bill of Particulars
30-032	§30.32	CHECKLIST: DIAGNOSTIC QUESTIONS
30-033	§30.33	CHECKLIST: PROCEDURE FOR DEMAND FOR BILL OF PARTICULARS (CCP §454)
30-034	§30.34	Demand for Bill of Particulars
30-035	§30.35	Bill of Particulars (Book or Ledger Account)
30-036	§30.36	Bill of Particulars (Common Counts)
30-037	§30.37	Letter Demanding Further Bill of Particulars
30-038	§30.38	Notice of Motion for Further Bill of Particulars
30-039	§30.39	Declaration Supporting Motion for Further Bill of Particulars
30-040	§30.40	Order for Further Bill of Particulars
30-041	§30.41	Letter Demanding Bill of Particulars After Party’s Failure to Deliver
30-042	§30.42	Notice of Motion to Preclude Introduction of Evidence at Trial
30-043	§30.43	Declaration Supporting Motion to Preclude Introduction of Evidence at Trial
30-044	§30.44	Order Precluding Introduction of Evidence at Trial
CH31	Chapter 31	Intervention
31-058	§31.58	CHECKLIST: DIAGNOSTIC QUESTIONS
31-059	§31.59	CHECKLIST: PROCEDURE FOR INTERVENTION
31-060	§31.60	Declaration for Order Granting Leave to Intervene
31-061	§31.61	Order Granting Leave to Intervene (Ex Parte)
31-062	§31.62	Declaration for Order to Show Cause re Intervention
31-063	§31.63	Order to Show Cause Why Leave to Intervene Should Not Be Granted
31-064	§31.64	Notice of Motion for Leave to Intervene
31-065	§31.65	Order Granting Leave to Intervene (After Hearing)
31-066	§31.66	Complaint in Intervention
CH32	Chapter 32	Injunctions and Other Provisional Remedies
32-062	§32.62	Checklist: Temporary Restraining Order (TRO)
32-093	§32.93	Checklist: Diagnostic Questions
32-094	§32.94	Checklist: Preliminary Injunction
32-152	§32.152	Complaint for Injunctive Relief
32-153	§32.153	Declaration Supporting Temporary Restraining Order and Preliminary Injunction
32-154	§32.154	Order to Show Cause and Temporary Restraining Order
32-155	§32.155	Notice of Motion for Preliminary Injunction
32-156	§32.156	Preliminary Injunction and Order for Undertaking
32-157	§32.157	Order Denying Preliminary Injunction
32-158	§32.158	Undertaking by Surety on Preliminary Injunction
32-159	§32.159	Declaration of Personal Surety’s Qualifications
CH33	Chapter 33	Receivership
33-074	§33.74	RECEIVER’S CHECKLIST
33-075	§33.75	Notice of Motion for Order Appointing Receiver
33-076	§33.76	Order Appointing Receiver
33-077	§33.77	Application for Ex Parte Order Appointing Receiver and for Order to Show Cause re Confirmation of Appointment
33-078	§33.78	Order Appointing Receiver and Order to Show Cause Why Ex Parte Appointment Should Not Be Confirmed; Temporary Restraining Order
33-079	§33.79	Order Confirming Ex Parte Appointment of Receiver
33-080	§33.80	Oath of Receiver
33-081	§33.81	Declaration of Receiver Supporting Order Authorizing Employment of Counsel
33-082	§33.82	Order Authorizing Receiver to Employ General Counsel
CH34	Chapter 34	Deposit in Court
34-023	§34.23	CHECKLIST: PROCEDURE FOR DEPOSIT IN COURT
34-024	§34.24	Notice of Motion for Deposit in Court or Delivery of Property
34-025	§34.25	Declaration Supporting Motion for Deposit in Court or Delivery of Property
34-026	§34.26	Order for Deposit in Court or Delivery of Property
34-027	§34.27	Declaration for CCP §574 Enforcement Order
34-028	§34.28	Enforcement Order Under CCP §574
CH35	Chapter 35	Declaratory Relief
35-050	§35.50	CHECKLIST: PROCEDURE FOR DECLARATORY RELIEF
35-051	§35.51	Complaint for Declaratory Relief on Contract
35-052	§35.52	Complaint for Declaratory Relief on Statute or Ordinance
35-053	§35.53	Judgment for Declaratory Relief
CH36	Chapter 36	Summary Judgment
36-013	§36.13	Checklist: Diagnostic Questions: Determining Whether to Make Motion
36-042	§36.42	Checklist: Cross-Motions
36-071	§36.71	Checklist for Preparing Moving Papers
36-091	§36.91	Checklist: Preparing Opposition
36-099	§36.99	Checklist for Preparing Reply Papers
36-170	§36.170	Checklist: Diagnostic Questions: Preparing for Hearing
36-213	§36.213	Checklist: Opposing Party
36-214	§36.214	Checklist: Moving Party: If Summary Judgment or Summary Adjudication Denied
36-215	§36.215	Sample Defendant’s Notice of Motion for Summary Judgment or Summary Adjudication
36-216	§36.216	Sample Defendant’s Memorandum in Support of Motion for Summary Judgment or Summary Adjudication
36-217	§36.217	Sample Declaration Supporting Defendant’s Motion for Summary Judgment or Summary Adjudication
36-218	§36.218	Sample Defendant’s Separate Statement of Undisputed Material Facts
36-219	§36.219	Sample Defendant’s Proposed Order Granting Summary Judgment
36-220	§36.220	Sample Defendant’s Proposed Order Granting Summary Adjudication
36-221	§36.221	Sample Plaintiff’s Response to Separate Statement of Disputed and Undisputed Facts
36-222	§36.222	Sample Plaintiff’s Proposed Order Denying Summary Judgment and Summary Adjudication
36-223	§36.223	Order for Entry of Summary Judgment
36-224	§36.224	Judgment by Court Under CCP §437c
36-225	§36.225	Order Denying Motion for Summary Judgment
36-226	§36.226	Notice of Motion for Reconsideration of Order Granting Motion for Summary Judgment
36-227	§36.227	Notice of Intention to Move for New Trial
CH37	Chapter 37	Judicial Arbitration
37-051	§37.51	CHECKLIST: PROCEDURES FOR JUDICIAL ARBITRATION
37-052	§37.52	Stipulation to Submit to Judicial Arbitration
37-053	§37.53	Plaintiff’s Election of Judicial Arbitration
37-054	§37.54	Stipulation to Judicial Arbitrator
37-055	§37.55	Rejection of Arbitrator
37-056	§37.56	Plaintiff’s Notice of Intention to Introduce Documents and Depositions Into Evidence
37-057	§37.57	Demand That Witness Appear and Testify in Person
CH38	Chapter 38	Default
38-119	§38.119	Checklist: Procedure for Entry of Default and Default Judgment
38-120	§38.120	Checklist: Procedure for Relief From Default
38-122	§38.122	Declaration on Open Book Account
38-123	§38.123	Default Judgment by Court
38-124	§38.124	Notice of Motion to Set Aside Default and Default Judgment
38-125	§38.125	Declaration Supporting Motion to Set Aside Entry of Default and Default Judgment
38-126	§38.126	Order Staying Execution and Shortening Time
38-127	§38.127	Order Setting Aside Entry of Default and Default Judgment
CH39	Chapter 39	Dismissal
39-126	§39.126	Notice of Motion to Dismiss
39-127	§39.127	Declaration Supporting Motion to Dismiss
39-128	§39.128	Order of Dismissal
39-129	§39.129	Notice of Entry of Dismissal
39-132	§39.132	Judgment of Dismissal
CH40	Chapter 40	Case Management Conferences
40-034	§40.34	Checklist: Diagnostic Questions
40-070	§40.70	Checklist: Procedure for Case Management Statement
CH42	Chapter 42	Trial Preference and Continuance Motions
42-029	§42.29	Notice of Motion to Advance, Specially Set, or Reset Case for Trial
42-030	§42.30	Declaration Supporting Motion to Advance, Specially Set, or Reset Case for Trial
42-031	§42.31	Notice of Motion for Continuance of Trial
42-032	§42.32	Declaration Supporting Motion for Continuance of Trial
CH43	Chapter 43	Consolidation and Severance
43-053	§43.53	Checklist: Diagnostic Questions
43-093	§43.93	Checklist: Diagnostic Questions
43-094	§43.94	Checklist: Procedure for Motion for Severance
43-103	§43.103	Notice of Motion to Consolidate Actions or Issues
43-104	§43.104	Declaration Supporting Motion to Consolidate Actions or Issues
43-105	§43.105	Order Consolidating Actions or Issues
43-106	§43.106	Stipulation to Sever; Order
43-107	§43.107	Notice of Motion to Sever Actions or Issues
43-108	§43.108	Order Severing Actions or Issues
CH44	Chapter 44	Coordination
44-041	§44.41	CHECKLIST: PROCEDURE FOR PETITION FOR COORDINATION IN COMPLEX CASES
44-042	§44.42	Motion to Transfer Action for Coordination
44-043	§44.43	Declaration in Support of Motion to Transfer for Coordination
44-044	§44.44	Petition for Coordination
44-045	§44.45	Declaration in Support of Petition for Coordination
44-046	§44.46	Notice of Submission of Coordination Petition
44-047	§44.47	Application for Stay Order
44-048	§44.48	Statement Opposing Application for Stay Order
44-049	§44.49	Statement Opposing Petition for Coordination
44-050	§44.50	Statement Supporting Petition for Coordination
44-051	§44.51	Proposed Preliminary Trial Conference Agenda
44-052	§44.52	Proposed Preliminary Trial Conference Order
44-053	§44.53	Motion for Remand of Action or Claim
44-054	§44.54	Motion for Transfer of Action or Claim
44-055	§44.55	Petition to Coordinate Add-on Case
CH45	Chapter 45	Alternative Dispute Resolution
45-065	§45.65	Sample Dispute Resolution Agreement
45-066	§45.66	Negotiated Submission Agreement
CH46	Chapter 46	Negotiation and Case Settlement
46-041	§46.41	Checklist: Negotiation
46-048	§46.48	Sample Demand Letter—Wrongful Death Case
46-049	§46.49	Sample Demand Letter—Personal Injury Case
CH47	Chapter 47	Offers to Allow Judgment (CCP §998)
47-030	§47.30	Defendant’s CCP §998 Offer to Compromise, Plaintiff’s Acceptance, and Request to Enter Judgment
47-031	§47.31	Plaintiff’s CCP §998 Offer to Compromise, Defendant’s Acceptance, and Request to Enter Judgment
CH48	Chapter 48	Submitted Case and Consent Judgment
48-015	§48.15	Checklist: Procedure for Submission of Case
48-033	§48.33	Submission of Agreed Case
48-034	§48.34	Declaration Supporting Submission of Agreed Case
48-035	§48.35	Stipulation to Agreed Facts in Pending Action
48-036	§48.36	Stipulation for Judgment
48-037	§48.37	Judgment Pursuant to Stipulation
CH50	Chapter 50	Good Faith Settlement
50-029	§50.29	Notice of Motion to Determine Good Faith of Settlement
50-030	§50.30	Declaration Supporting Motion to Determine Good Faith of Settlement
50-031	§50.31	Notice of Settlement
50-032	§50.32	Application for Determination of Good Faith of Settlement
50-033	§50.33	Proposed Order Determining Good Faith of Settlement
50-034	§50.34	Declaration Supporting Application for Determination of Good Faith of Settlement

Selected Developments

June 2019 Update

New and Amended Rules of Professional Conduct. On May 10, 2018, the California Supreme Court issued an order approving new and amended Rules of Professional Conduct. The new rules became effective on November 1, 2018. The contents of this publication have been updated to incorporate the new rules.

Accepting Cases and Implementing Office Procedures
- Litigation of Matter Unwarranted by Law—Sanctions Under CCP §128.5. A motion for sanctions may be denied for failure to provide a safe harbor opportunity to withdraw the objectionable pleadings. Nutrition Distribution, LLC v S. SARMs, Inc. (2018) 20 CA5th 117, 130 (both former CCP §128.5(f) and CCP §128.5(f) as amended in 2017 require party moving for sanctions to comply with safe harbor waiting provisions). See also CPF Vaseo Assocs., LLC v Gray (2018) 29 CA5th 997, 1007 (informal notice of intent to seek sanctions in future cannot serve as substitute for formal noticed motion required by safe harbor provisions of CCP §128.5). See §1.6A.
- Litigation of Matter Unwarranted by Law—Sanctions Under CCP §128.7. The improper purpose and frivolous filing clauses of CCP §128.7(b)(1)–(2) are not independent. A nonfrivolous claim cannot, as a matter of law, be asserted for an improper purpose. Ponce v Wells Fargo Bank (2018) 21 CA5th 253, 265 (motion for terminating and monetary sanctions under CCP §128.7 improper when plaintiff’s claim that lender was not “predecessor in interest” within meaning of stipulation was nonfrivolous, and nonfrivolous complaints cannot be presented for improper purpose). See §1.6B.
Avoiding Conflicts of Interest
- Effect of Breaching Conflicts Rules—Refunding Attorney Fees. The general rule is that an attorney disqualified for violating an ethical obligation is not entitled to fees. However, recovery may be available under a theory of quantum meruit (in an amount likely not equivalent to the contractual fee) if the attorney can show that the violation was neither willful nor egregious, the conduct was not so potentially damaging to the client as to warrant a complete denial of compensation, and the award will not undermine incentives for compliance with the Rules of Professional Conduct. Sheppard, Mullin, Richter & Hampton, LLP v J-M Mfg. Co. (2018) 6 C5th 59, 90 (law firm’s ethical violation by simultaneously representing adverse clients without informed consent invalidated fee agreement, but attorney fees potentially available under quantum meruit). See §2.9.
- Conflicts Arising From Concurrent Representation. An attorney may not, without the informed written consent of each affected client, represent a client if the representation is directly adverse to another client in the same or separate matter, or represent a client if there is a significant risk the attorney’s representation of the client will be materially limited by the attorney’s responsibilities to or relationships with another client. Cal Rules of Prof Cond 1.7(a)–(b). Informed written consent means that the client agrees to the proposed course of conduct after the attorney has communicated and explained the relevant circumstances and material risks, including any actual and reasonably foreseeable adverse consequences. Cal Rules of Prof Cond 1.0.1(e). In addition to obtaining each affected client’s informed written consent, the following conditions must also be satisfied in order for an attorney to ethically represent a client when a conflict arises: the attorney must reasonably believe that he or she will be able to provide competent and diligent representation to each affected client; the representation must not be prohibited by law; and the representation must not involve the assertion of a claim by one client against another client represented by the attorney in the same litigation or other proceeding before the tribunal. Cal Rules of Prof Cond 1.7(d). See §2.11.
- When Conflict Raises Later. A material change in circumstances creating a conflict of interest will trigger a requirement to immediately obtain new informed written consents. Alternatively, the attorney may withdraw from one or more of the representations to avoid the conflict. Comment 10 to Cal Rules of Prof Cond 1.7. See §2.13.
- Advance Waivers of Future Conflicts. California Rules of Professional Conduct 1.7 does not per se preclude an informed written consent to a future conflict. Comment 9 to Cal Rules of Prof Cond 1.7. See also California State Bar Formal Ethics Opinion No. 1989–115 (blanket waivers of client’s right to disqualify was not per se improper). Whether an advance waiver will be deemed effective will depend on many factors, including the extent to which the client reasonably understands the material risks that the consent entails; the comprehensiveness of the explanation of the types of future representations that might arise; the comprehensiveness of the explanation regarding actual and reasonably foreseeable adverse consequences to the client; the experience and sophistication of the client giving consent; and whether the client is independently represented in connection with giving consent. Comment 9 to Rule 1.7. An advance consent cannot be effective if circumstances materialize in the future that render the conflict nonconsentable under Rule 1.7(d) (i.e., the attorney does not believe he or she will be able to provide competent and diligent representation of each affected client, the representation is prohibited by law, or the representation involves the assertion of a claim by one client against another client represented by the attorney in the same litigation or other proceeding before a tribunal). Comment 9 to Rule 1.7. When an attorney fails to disclose a known, existing conflict, general language in a fee agreement waiving any and all current and future conflicts does not constitute effective informed consent. Sheppard, Mullin, Richter & Hampton, LLP v J-M Mfg. Co. (2018) 6 C5th 59, 85. See §2.16.
- Duties to Former Clients. An attorney who formerly represented a client in a matter may not thereafter represent another person in the same or substantially related matter in which the person’s interests are materially adverse to the interests of the former client, unless the former client gives informed written consent. Cal Rules of Prof Cond 1.9(a). Moreover, an attorney who has formerly represented a client in a matter may not thereafter (1) use information protected by Bus & P C §6068(e) and Cal Rules of Prof Cond 1.6 to the disadvantage of the former client (except as permitted by the California Rules of Professional Conduct or the State Bar Act (with respect to a current client) or when the information has become generally known) or (2) reveal information protected by Bus & P C §6068(e) and Cal Rules of Prof Cond 1.6 to the disadvantage of the former client (except as permitted by the California Rules of Professional Conduct or the State Bar Act (with respect to a current client)). Cal Rules of Prof Cond 1.9(c)(1)–(2). Information is not “generally known” for purposes of Rule 1.9(c)(1) merely because the information can be discovered in a public record. Comment 5 to Rule 1.9(c). See §2.18.
- Conflicts Arising From Attorney’s Adverse Pecuniary Interest. Conflicts rules apply when an attorney enters into a business transaction with a client or acquires some other pecuniary interest (i.e., when the attorney possesses a legal right to significantly impair or prejudice the client’s rights or interests without court action) that may be adverse to the client’s interest. Comment 1 to Cal Rules of Prof Cond 1.8.1. An attorney shall not enter into a business transaction with a client, or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, unless each of the following requirements has been satisfied: (1) the transaction or acquisition and its terms are fair and reasonable to the client (as measured at the time of the transaction or acquisition); (2) the terms and the attorney’s role in the transaction or acquisition are fully disclosed and transmitted in writing to the client in a manner that the client should reasonably have understood; (3) the client is represented in the transaction or acquisition by an independent attorney of the client’s choice (or the client is advised in writing that the client may seek the advice of an independent lawyer of the client’s choice and is given a reasonable opportunity to do so); and (4) the client thereafter provides informed written consent to the transaction or acquisition, and to the attorney’s role in it. Cal Rules of Prof Cond 1.8.1, Comment 3 to Cal Rules of Prof Cond 1.8.1. See §2.26.
- Attorney Accepting Compensation From Nonclient. An attorney may not enter into an agreement for, charge, or accept compensation for representing a client from anyone other than the client unless (1) there is no interference with the attorney’s independent professional judgment or with the attorney-client relationship; (2) information is protected as required by Bus & P C §6068(e)(1) and Cal Rules of Prof Cond 1.6; and (3) the attorney obtains the client’s informed written consent at or before the time the attorney has entered into the agreement for, charged, or accepted the compensation, or as soon thereafter as reasonably practicable (but no disclosure or consent is required if such nondisclosure or compensation is otherwise authorized by law or court order; or if the attorney is rendering legal services on behalf of any public agency or nonprofit organization that provides legal services to other public agencies or the public). See §2.26A.
- Interest in Subject Matter or Relationship With Another Party, Witness, or Third Person. If there is a significant risk that an attorney’s representation of a client will be materially limited by the attorney’s responsibilities to or relationships with a third person or by the lawyer’s own interests, the attorney shall not accept or continue representation of the client unless (1) the attorney obtains informed written consent from each affected client; (2) the attorney reasonably believes that he or she will be able to provide competent and diligent representation of each affected client; (3) the representation is not prohibited by law; and (4) the representation does not involve the assertion of a claim by one client against another client in the same litigation or other proceeding before a tribunal. Cal Rules of Prof Cond 1.7. If an attorney has, or knows that another lawyer in the attorney’s firm has, a legal, business, financial, professional, or personal relationship with, or responsibility to, a party or witness in the same matter, the attorney shall not accept or continue representation of a client unless (1) the attorney discloses the relationship to the client in writing (even if there is no significant risk that the attorney’s relationship with another party’s lawyer will materially limit the attorney’s representation of the client); (2) the attorney reasonably believes that he or she will be able to provide competent and diligent representation of each affected client; (3) the representation is not prohibited by law; and (4) the representation does not involve the assertion of a claim by one client against another client in the same litigation or other proceeding before a tribunal. Cal Rules of Prof Cond 1.7. Additionally, if there is a significant risk that the attorney’s legal, business, financial, professional or personal relationship with a party or witness in the same matter will materially limit the attorney’s representation of the client, the attorney must obtain informed written consent from each affected client (Rule 1.7(b)). See §2.27.
- Relationship With Other Party’s Lawyer. An attorney’s personal relationships sometimes raise conflicts issues. Specifically, special rules apply in the following instances: when an attorney is the spouse or sibling of, or has a parent-child relationship with, another party’s lawyer, when an attorney or another lawyer in the attorney’s firm lives with another party’s lawyer, or when an attorney has an intimate personal relationship with another party’s lawyer. Cal Rules of Prof Cond 1.7(c)(2). In such instances, an attorney shall not accept or continue to represent a client in the matter unless the following conditions are satisfied: (1) the attorney discloses the relationship to the client in writing (even if there is no significant risk that the attorney’s relationship with another party’s lawyer will materially limit the attorney’s representation of the client); (2) if there is a significant risk that the attorney’s relationship with another party’s lawyer will materially limit the attorney’s representation of the client, the attorney must obtain informed written consent from each affected client; (3) the attorney reasonably believes that he or she will be able to provide competent and diligent representation of each affected client; (4) the representation is not prohibited by law; and (5) the representation does not involve the assertion of a claim by one client against another client in the same litigation or other proceeding before a tribunal. Cal Rules of Prof Cond 1.7. See §2.28.
- Informed, Written Consent. Informed written consent means that the client agrees to the proposed course of conduct after the attorney has communicated and explained the relevant circumstances and material risks, including any actual and reasonably foreseeable adverse consequences. Cal Rules of Prof Cond 1.0.1(e). See §2.45.
- Imputed and Vicarious Disqualification. When an attorney is disqualified from representation because of an ethical conflict, the disqualification generally extends to the entire firm in which the attorney is associated; that is, the firm is vicariously disqualified. Cal Rules of Prof Cond 1.10. The following are exceptions to the general rule regarding vicarious disqualification: (1) the firm will not be disqualified if the conflict is based on a personal interest of the attorney and the conflict does not present a significant risk of materially limiting the representation by the remaining lawyers of the firm (Cal Rules of Prof Cond 1.10(a)(1)); (2) the other lawyers in an attorney’s firm may represent a client in a matter that is the same or substantially related to a matter in which the attorney or the attorney’s previous firm represented a different, adversarial client if (a) the prohibited attorney did not substantially participate in the same or substantially related matter for the previous client, (b) the prohibited attorney is timely screened from any participation in the matter, (c) the prohibited attorney does not receive any compensation directly related to the matter in which the attorney is prohibited, and (d) written notice is promptly given to any affected former client that describes the screening procedures employed and provides an agreement by the firm to respond promptly to any written inquiries or objections by the former client to the screening procedures (Cal Rules of Prof Cond 1.10(a)(2), Comment 3 to Cal Rules of Prof Cond 1.10); (3) when an attorney’s association with a firm is terminated, the firm may represent a client whose interests are materially adverse to a former client of the previously associated attorney if (a) the matter is not the same or substantially related and (b) no lawyer remaining in the firm has information material to the former client’s matter that is protected by Bus & P C §6068 and Cal Rules of Prof Cond 1.6 and 1.9(c) (Cal Rules of Prof Cond 1.10(b)). Vicarious disqualification, and the conditions necessary for the exceptions to vicarious disqualification, may be waived by each affected client through informed written consent. Cal Rules of Prof Cond 1.10(c). See §2.48.
- Implied Waiver and Consent. Although both former and present professional rules in California require that the client’s or former client’s written consent be given, some courts have found an implied waiver and consent to an attorney’s acceptance of adverse employment when there is a lengthy and unreasonable delay by the client or former client in raising such an objection. See, e.g., Antelope Valley Groundwater Cases v Los Angeles County Waterworks Dist. No. 40 (2018) 30 CA5th 602, 625 (implied consent to concurrent representation found when client waited 10 years to move for disqualification and other party would suffer substantial financial cost if forced to replace counsel). See §2.53.
- Disqualification. In City of San Diego v Superior Court (2018) 30 CA5th 457, 472, a disqualification order was reversed when a city attorney violated former Cal Rules of Prof Cond 2–100, now Rule 4.2, by questioning a party without the consent of counsel, but there was no showing that the information elicited would affect the outcome of proceedings before the court. See §2.55.
- Motions for Disqualification or Recusal—Delay in Filing Motion. In Antelope Valley Groundwater Cases v Los Angeles County Waterworks Dist. No. 40 (2018) 30 CA5th 602, 625, estoppel applied in the concurrent representation context when a client waited 10 years to bring a disqualification motion. See §2.57.
Representation Agreements
- Types of Fees—Forwarding or Referral Fee. California Rules of Professional Conduct 7.2(b) provides that a lawyer may not promise to compensate or provide actual compensation to a person or entity for providing a referral, unless the payment is the normal cost charged by a lawyer referral service operating in accordance with the California State Bar’s standards. A lawyer may, however, refer clients under a reciprocal referral arrangement, as long as the client is informed of the existence and nature of the arrangement, the arrangement is not exclusive, and the arrangement is not otherwise prohibited by the California Rules of Professional Conduct or the State Bar Act. A lawyer may also give a gift or gratuity to a referral source, so long as the gift or gratuity was not given as part of an agreement to provide the referral or to encourage future referrals. See §3.35.
- Illegal Fee Contracts—Against Public Policy or Violation of Ethical Standards. When a fee agreement is void because it violates an ethical rule, recovery will be unavailable under the contract, but the attorney may still be able to recover under a theory of quantum meruit (in an amount likely not equivalent to the contractual fee). Sheppard, Mullin, Richter & Hampton, LLP v J-M Mfg. Co. (2018) 6 C5th 59, 90 (rejecting categorical bar against any recovery by attorney found in breach of ethical duty). To recover under quantum meruit following an ethical violation, the attorney must show that the violation was neither willful nor egregious, the conduct was not so potentially damaging to the client as to warrant a complete denial of compensation, and the award will not undermine incentives for compliance with the Rules of Professional Conduct. Sheppard, Mullin, Richter & Hampton, LLP v J-M Mfg. Co., supra. The egregiousness of the attorney’s conduct, its potential and actual effect on the client and attorney-client relationship, and the existence of alternative remedies will also be relevant to determine to what extent forfeiture of compensation is warranted. 6 C5th at 89. See §3.39.
California Jurisdiction
- Standing. In Holloway v Showcase Realty Agents, Inc. (2018) 22 CA5th 758, 769, even though the plaintiff was not a party to the disputed contract, the plaintiff had standing under CCP §526a and Govt C §1090 as a taxpayer to challenge as void a water district’s purchase of real property because of a conflict of interest. In Hansen v Newegg.com Ams., Inc. (2018) 25 CA5th 714, 733, the appellate court held that to establish standing under the Unfair Competition Law and False Advertising Law, a consumer need only allege reliance on a misrepresentation when purchasing a product, and that he or she would not have made the purchase but for the misrepresentation. See §6.57A.
- Forum Non Conveniens. In Quanta Computer Inc. v Japan Communications Inc. (2018) 21 CA5th 438, 448, despite a forum selection clause in the parties’ contract, a case was properly dismissed because suitable alternative forums exist and Calfornia has no interest in a purely foreign litigation regarding a contract formed and executed abroad. See §6.64.
Federal Jurisdiction
- Standing. In recent decisions, courts have clarified the “injury in fact” requirement of standing. In Dutta v State Farm Mut. Auto. Ins. Co. (9th Cir 2018) 895 F3d 1166, 1176, a plaintiff failed to establish injury in fact when a decision not to hire the plaintiff was based on factors independent of the potential employer’s alleged violation of the Fair Credit Reporting Act of 1970. A credible threat of harm is sufficient to constitute actual injury for standing purposes, whether or not a statutory violation has occurred. California Sea Urchin Comm'n v Bean (9th Cir. 2018) 883 F3d 1173, 1182 (fishing industry groups failed to show genuine threat of imminent prosecution following U.S. Fish and Wildlife Service’s elimination of exemptions for incidental taking of sea otters in management zone). See §7.9.
- Standing in Procedural Injury Cases. When a plaintiff asserts a violation of a procedural right conferred by federal statute, the standards for establishing standing are “softened.” Friends of the Santa Clara River v United States Army Corps of Eng'rs (9th Cir 2018) 887 F3d 906, 918. To establish causation and redressability in a procedural injury case, a plaintiff is not required to show that the agency would have rendered a different decision had it followed the proper procedure. Rather, the plaintiff need only show that the agency’s ultimate decision would have been influenced by the correct procedural steps. Friends of the Santa Clara River v United States Army Corps of Eng’rs, supra (plaintiffs had standing to seek judicial review of agency decision when it was reasonably probable that agency decision could be influenced by environmental considerations agency was required to study). When the alleged procedural injury is caused by a third party, a plaintiff must establish that the desired government action could alter the third party's conduct in a way that redresses the injury in fact. Center for Biological Diversity v Export-Import Bank of the U.S. (9th Cir 2018) 894 F3d 1005, 1013 (performance of additional procedures under National Historic Preservation Act and Endangered Species Act could not redress environmental injury because financing for project would be provided by other sources). See §7.9A.
- Abstention. In Arevalo v Hennessy (9th Cir 2018) 882 F3d 763, 766, Younger abstention was inappropriate when the issues raised in a bail appeal would not impede the underlying criminal prosecution. See §7.12.
- The Well-Pleaded Complaint Rule. A complaint is not well pleaded and does not invoke federal jurisdiction if the federal question “can be raised properly only as an anticipated defense.” Mobil Oil Corp. v City of Long Beach (9th Cir 1985) 772 F2d 534, 539. See Stillaguamish Tribe of Indians v Washington (9th Cir, Jan. 22, 2019, No. 17–35722) 2019 US App Lexis 1943, *3 (no federal question jurisdiction when tribe sued State of Washington in federal court, seeking declaration that tribe’s sovereign immunity barred Washington from pursuing an anticipated contract claim against tribe). See §7.17.
- Exclusive Federal Court Jurisdiction. The Labor Management Relations Act (29 USC §185) permits suits by both unions and individual union members seeking to vindicate rights (e.g., wages, hours, overtime pay, wrongful discharge, fair representation) arising out of a collective bargaining agreement. See Rymel v Save Mart Supermarkets, Inc. (2018) 30 CA5th 853, 863 (no federal preemption under 28 USC §185 when plaintiffs’ claims all based on violations of nonnegotiable state law policies and did not require interpretation of collective bargaining agreement). See §7.30.
- Complete Diversity Requirement—Class Action. Under the Class Action Fairness Act’s (CAFA’s) “local controversy” exception, federal courts must decline to exercise removal jurisdiction when more than two-thirds of the putative class members and a defendant from whom significant relief is sought or who is the primary defendant are citizens of the state in which the action was originally filed. 28 USC §1332(d)(4)(A)–(B). The exception’s purpose is to provide state courts with the opportunity to try cases that they have a strong interest in resolving. Kendrick v Conduent State & Local Solutions, Inc. (9th Cir 2018) 910 F3d 1255, 1261 (case properly remanded under local controversy exception to CAFA jurisdiction). See §7.67.
- Jurisdictional Amount in Controversy Requirement—Determined as of Time Action Commenced. When a case is removed to federal court, the amount in controversy is determined by the amount in damages a court could award to a prevailing plaintiff based on the complaint as it stands when the case is removed. Chavez v JP Morgan Chase & Co. (9th Cir 2018) 888 F3d 413, 414. If the complaint is later amended and the amount in controversy drops below the jurisdictional threshold, the federal court will maintain jurisdiction as long as the amount in controversy was satisfied on removal. 888 F3d at 417. Additionally, the amount in controversy is not limited to damages incurred before removal. 888 F3d at 414. For example, the court may consider future statutory or contractual attorney fees awardable to the plaintiff if successful. Fritsch v Swift Transp. Co. of Arizona, LLC (9th Cir 2018) 899 F3d 785, 794. See §7.75.
- Jurisdictional Amount in Controversy Requirement—Attorney Fees. When a plaintiff would be entitled under contract or statute to future attorney fees if successful, such fees may also be included in the amount in controversy as long as the defendant may establish such future fees by a preponderance of the evidence. Fritsch v Swift Transp. Co. of Arizona, LLC (9th Cir 2018) 899 F3d 785, 794 (plaintiff demanded attorney fees permitted by California law in complaint, so district court should have permitted defendant opportunity to prove that amount in controversy, including future attorney fees, exceeded jurisdictional threshold). See §7.77.
Venue
- The Removal Statute (CCP §394). In GameStop, Inc. v Superior Court (2018) 26 CA5th 502, 511, an appellate court held that CCP §394 is inapplicable in an action filed by a district attorney because a district attorney is neither a plaintiff nor a party; rather, the plaintiff is the people of California. See §8.72.
Prelitigation Claims, Notices, and Petitions for Guardians Ad Litem
- Presenting Claim as Prerequisite to Suite—Exceptions. The California Supreme Court has granted review in Big Oak Flat-Groveland Unified Sch. Dist. v Superior Court (review granted June 13, 2018, S247975; opinion at 21 CA5th 403 to remain published and citable until further order) to determine whether a school district may impose its own claim presentation requirements under Govt C §935 for childhood sexual abuse claims under CCP §340.1, when such claims are otherwise exempt under Govt C §905(m) from the Government Claims Act’s claims presentation requirement. See §9.4.
- Entity Responses to Claims—Waiver; Estoppel—Failure to Give Notice That Claim Was Late. A claimant may be estopped from invoking Govt C §911.3’s waiver provision when the entity’s failure to warn a claimant that he or she should seek leave to present a late claim is induced by the claimant’s misrepresentation on the government claim form. Estill v County of Shasta (2018) 25 CA5th 702, 711 (county not required to give notice and warning under Govt C §911.3 when county unaware of claimant’s untimely filing because she erroneously reported date on which she discovered injurious conduct). See §9.21.
- Suing Professionals—Notice to Health Care Provider Before Filing Medical Malpractice Suite—Form and Contents of Notice. Actual notice is not required; rather, the test is whether plaintiff took adequate steps to achieve actual notice. Selvidge v Tang (2018) 20 CA5th 1279, 1283 (mailing notice to address defendant provided to medical board rather than defendant’s residence did not meet requirements of CCP §1013, but was adequate step to achieve actual notice). See §9.32.
- Suing Professionals—Leave to Sue Attorney for Civil Conspiracy. A cause of action may still fall within the scope of CC §1714.10, even if the cause of action against an attorney does not use the words “conspiracy” or “civil conspiracy.” Berg & Berg Enters., LLC v Sherwood Partners, Inc. (2005) 131 CA4th 802, 824. See e.g., Cortese v Sherwood (2018) 26 CA5th 445, 456 (plaintiff’s cause of action for third party liability for breach of trust against attorney actually amounted to civil conspiracy claim and defendant’s demurrer should been sustained for failure to meet prefiling requirement of CC §1714.10). See §9.37.
Noticed Motions
- Rulings and Orders—Procedures After Motion Denied—Court’s Inherent Power to Reconsider. In Cox v Bonni (2018) 30 CA5th 287, 313, although the trial court did not expressly invoke its inherent authority to reconsider prior rulings, the context made it clear that the trial court had relied on its inherent authority in granting the relief sought. See §12.140.
- Sanctions—Motions for Sanctions Under CCP §128.7—Safe Harbor Provisions. In Moofly Prods., LLC v Favila (2018) 24 CA5th 993, 999, sanctions were reversed when the trial court simultaneously moved for sanctions and denied a motion for reconsideration, rendering moot the offending party’s ability to withdraw the improper motion. See §12.146.
Ascertaining, Joining, and Naming Parties
- Capacity to Sue or Be Sued—Entities Without Capacity. Insurers of corporations that have been suspended for failure to pay corporate franchise taxes are among the entities that may not prosecute actions. Travelers Prop. Cas. Co. of Am. v Engel Insulation, Inc. (2018) 29 CA5th 830, 837 (insurers of corporations suspended for failure to pay corporate franchise taxes prohibited from filing actions based on subrogated rights of suspended corporation). See §14.7.
- Joinder—Compulsory Joinder—Requirements. In Citizens for Amending Proposition L v City of Pomona (2018) 28 CA5th 1159, 1184, a billboard company was not an indispensable party when its interests were aligned with the city’s, and an indemnity provision in the contract gave a nonjoined party certain control over litigation. See §14.8.
Complaints
- Components of Complaints—Effect of Prayer on Judgment—Default Cases. In Airs Aromatics, LLC v CBL Data Recovery Technols., Inc. (2018) 23 CA5th 1013, 1018, a complaint that alleged damages “in an amount to be proven at trial, but estimated to exceed $25,000” at most, gave notice of $25,000 in damages; default judgment that awarded over $3 million was void. See §15.11.
Amending Complaints
- Limits on Amendments. The right to amend a pleading without leave of court under CCP §472(a) is limited to amending the original version of the pleading. Hedwall v PCMV, LLC (2018) 22 CA5th 564, 575 (CCP §472(a) does not authorize defendant to file second amended cross-complaint without leave of court while demurrer to first amended cross-complaint is pending). If a plaintiff cannot demonstrate the possibility of an amendment to cure the defects in the original pleading, then the court may sustain a demurrer or motion to strike without leave to amend. 22 CA5th at 579. See §16.4A.
- Forms of Written Amendments—Amended Complaint—Defined; Uses. Under the sham pleading doctrine, a plaintiff may not avoid attacks raised in a demurrer by filing (without a satisfactory explanation) an amended complaint that changes or omits the allegations in the original complaint. If a plaintiff attempts this, a judge may strike the amended complaint as a sham or read into the amended complaint the omitted allegations. Tindell v Murphy (2018) 22 CA5th 1239, 1248. See §16.7.
- Amendment of Course: Before Answer Filed or Demurrer Heard. The right to amend a complaint or cross-complaint of course is limited to amending the original version of the complaint or cross-complaint. Hedwall v PCMV, LLC (2018) 22 CA5th 564, 575 (trial court struck defendant’s second amended cross-complaint while demurrer to first amended cross-complaint was pending). See §16.11.
Service of Summons
- Service by Publication. A plaintiff’s failure to publish the summons in the newspaper designated by the court will render a resulting default judgment void. Calvert v Al Binali (2018) 29 CA5th 954, 961 (CCP §415.50 is strictly construed; default judgment void on face when plaintiff did not publish summons in specific newspaper named by court, but rather published in named newspaper’s subsidiary). See §17.51.
- Manner of Service—Outside United States. International service by mail will be valid provided that (1) the receiving state has not objected to service by international mail and (2) service by international mail is affirmatively authorized by the laws of the forum state in which the action is pending. See, e.g., Inversiones Papaluchi S.A.S. v Superior Court (2018) 20 CA5th 1055, 1067 (Colombian corporations were not properly served because delivery by Federal Express without return receipts did not comply with California procedure for service by mail). See §17.55.
- Filing Proof of Service of Summons—Service Outside California—Service in Accordance With Foreign Law. The California Supreme Court has granted review in Rockefeller Technol. Invs. (Asia) VII v Changzhou SinoType Technol. Co. (review granted Sept. 26, 2018, S249923; opinion at 24 CA5th 115 to remain published and citable until further order) to determine whether private parties can contractually agree to service of process by methods not expressly authorized by the Hague Convention. See §17.75.
Service of Papers
- Service on Party. The hours during which a notice or other paper in a civil action may be personally served on a party, attorney, or person 18 years or older at the party’s residence have been expanded from 8 a.m. to 6 p.m. to 8 a.m. to 8 p.m. See CCP §1011 (effective January 1, 2019). See §18.15.
Motions to Change Venue
- Procedures for Moving Party—Time to File Motion—Wrong Court. There is no hard deadline for bringing a motion brought under CCP §397(a)’s discretionary change of venue provision, and failure to make a timely CCP §396b(a) motion does not preclude a defendant from making a motion under CCP §397(a). Walt Disney Parks & Resorts U.S., Inc. v Superior Court (2018) 21 CA5th 872, 876. Although a CCP §397(a) motion is not time-limited, a defendant may waive the right to request a transfer of venue if the request is not brought within a reasonable time. 21 CA5th at 878 (defendant did not waive right to request venue change when it promptly sought to remove case to federal court and then moved to change venue shortly after federal court remanded case). See §20.8.
Motions to Stay or Dismiss for Inconvenient Forum
- Statutory Authority; Limitations. Although a California court may hear a dispute under CCP §410.40, a trial court retains discretion under CCP §410.30 to dismiss the case on forum non conveniens grounds. Quanta Computer Inc. v Japan Communications Inc. (2018) 21 CA5th 438, 448 (case properly dismissed despite forum selection clause in parties’ contract because suitable alternative forums exist and California has no interest in purely foreign litigation regarding contract formed and executed abroad). See §21.5.
Removal to Federal Court
- Actions Specifically Made Nonremovable by Statute. In Cyan, Inc. v Beaver County Employees Retirement Fund (2018) ___ US ___, 138 S Ct 1061, 1075, the United States Supreme Court held that suits alleging only Securities Act of 1933 claims are not class actions as set forth in 15 USCS §77p(b), and are subject to the 1933 Act’s removal ban. See §22.45.
- Time Limitations—When Initial Pleading Contains Removable Claim—30-day Rule. In Kenny v Wal-Mart Stores, Inc. (9th Cir 2018) 881 F3d 786, 791, a defendant was able to remove a case to federal court 90 days after the plaintiff filed and served the first amended complaint because nothing on the face of the complaint put the defendant on notice of the case’s removability. See §22.65.
Demurrer
- Posthearing Procedures—If Demurrer Sustained Without Leave to Amend—Dismissal and Appeal. In Jensen v The Home Depot, Inc. (2018) 24 CA5th 92, 97, a trial court did not abuse its discretion by sustaining a demurrer without leave to amend when the plaintiffs made no showing as to how they would amend their complaint to cure a misjoinder issue, but the judgment was reversed because the plaintiffs cured the issue by dismissing the misjoined party on appeal. See §23.69.
Anti-SLAPP Motions
- Activities Protected Under Anti-SLAPP Statute. Code of Civil Procedure §92(d) precludes the filing of an anti-SLAPP motion to strike in limited civil cases. 1550 Laurel Owner’s Ass’n v Appellate Div. of Superior Court (2018) 28 CA5th 1146, 1149 (affirming trial court’s denial of anti-SLAPP motion in limited civil case under restriction set forth in CCP §92(d)). See §24A.5.
- Public Interest Exemption. In Takhar v People ex rel Feather River Air Quality Mgmt. Dist. (2018) 27 CA5th 15, 26, the public interest exemption did not apply when a cause of action was inextricably tied to the individualized relief sought and not brought solely in the public interest. See §24A.13.
- Commercial Speech Exemption. In Dean v Friends of Pine Meadow (2018) 21 CA5th 91, 104, speech and petitioning activity by individuals who formed a community group to oppose an amendment to a city’s general plan was political, rather than commercial, in nature, and thus the commercial speech exemption did not apply. See §24A.14.
- Defendant’s Burden of Proof (Part One of Anti-SLAPP Test). An anti-SLAPP motion to strike may be based on allegations of protected activity that defendant denies engaging in. For example, in Bel Air Internet, LLC v Morales (2018) 20 CA5th 924, 929, employee defendants’ prevailed on their anti-SLAPP motion to strike plaintiff employer's complaint, which alleged that defendants had encouraged fellow employees to quit and sue company, even though defendants denied engaging in such protected activity. See §24A.17.
- Does the Cause of Action “Arise From” Defendant’s Exercise of Constitutional Free Speech or Petition Rights? In Yeager v Holt (2018) 23 CA5th 450, 457, after an attorney’s successful action to recover fees against former clients, the former clients sued the attorney for malpractice, breach of contract, and using the clients’ name or likeness for commercial purposes. The attorney’s anti-SLAPP motion to strike the former clients’ complaint was denied because the client’s lawsuit did not attack the attorney’s expressive activity and, even if the lawsuit were retaliatory, the suit was brought after the attorney had successfully recovered fees from the former clients. In Gaynor v Bulen (2018) 19 CA5th 864, 880, plaintiff alleged that defendant trustee breached his fiduciary duty by taking certain actions (including filing probate petitions) that would improperly benefit some beneficiaries to the detriment of other beneficiaries. In doing so, defendant allegedly violated statutes requiring a trustee to administer a trust solely in the interest of beneficiaries in an impartial manner. Defendant’s anti-SLAPP motion was properly denied because, although the manner in which defendant may have violated such statutes involved protected petitioning activity, liability arose from the defendant’s potential breach of loyalty, not from the petitioning activity itself. See §24A.18.
- Is the Cause of Action Based on a Written or Oral Statement Made in Connection With an Issue Under Consideration or Review by Legislative, Executive, or Judicial Body or Another Official Proceeding Authorized by Law? In Cheveldave v Tri Palms United Owners Ass’n (2018) 27 CA5th 1202, 1213, a homeowners association’s entering into a settlement agreement that resulted from an arbitration proceeding (that was connected to a bankruptcy proceeding) was protected by CCP §425.16(e)(2). In Bel Air Internet, LLC v Morales (2018) 20 CA5th 924, 940, employees’ alleged conduct in encouraging other employees to sue their employer was protected prelitigation conduct for purposes of an anti-SLAPP motion. See §24A.21.
- Is the Cause of Action Based on a Written or Oral Statement Made in a Place Open to the Public or a Public Forum in Connection With a Public Issue? In Rall v Tribune 365 LLC (2019) 31 CA5th 479, 493, defendant newspaper’s articles regarding a decision to stop publishing plaintiff’s cartoons and blog posts due to concerns about the accuracy of a blog post alleging police brutality were published in a public forum and concerned issues of public interest. See §24A.22.
- Is the Cause of Action Based on Defendant’s Conduct in Furtherance of an Exercise of Constitutional Petition or Free Speech Rights in Connection With an Issue of Public Interest? A lawsuit against plaintiffs who allegedly engaged in widespread overbilling of Medicare and underpaying of Medicare providers is a matter of public interest. MMM Holdings, Inc. v Reich (2018) 21 CA5th 167, 182. A mere chance that an issue may impact the public is insufficient for an issue to be of public interest. Kettler v Gould (2018) 22 CA5th 593, 605 (financial planner’s alleged mishandling of one client’s affairs not issue of public interest just because planner handled investments of many clients and could potentially engage in abuse and fraud). In Blue v Office of Inspector Gen. (2018) 23 CA5th 138, 156, an Inspector General’s anti-SLAPP motion was properly granted even though the Inspector General had a mandatory duty to review a prison’s policies regarding excessive force, because the cause of action arose from the Inspector General’s expressive activity while carrying out its mandatory duty and the investigation concerned a matter of public interest. A district’s filing of a civil enforcement action and an investigation of a citizen’s alleged violation of air pollution control laws were activities protected by the anti-SLAPP statute because the filing of lawsuits is an aspect of the First Amendment right to petition, and nonpetitioning conduct (such as an investigation) is within the “protected ‘breathing space’ of the right of petition if that conduct is (1) incidental or reasonably related to an actual petition or actual litigation or to a claim that could ripen into a petition or litigation and (2) the petition, litigation, or claim is not a sham.” Takhar v People ex rel Feather River Quality Mgmt. Dist. (2018) 27 CA5th 15, 28 (quoting Tichinin v City of Morgan Hill (2009) 177 CA4th 1049, 1068). See §24A.23.
- Defamation. In Issa v Applegate (2019) 31 CA5th 689, 709, a political candidate’s defamation by implication claims were struck because the candidate’s claims arose from protected statements made during television commercials aired by a political opponent, and the candidate could not establish a prima facie case showing falsity of the statements. In Rall v Tribune 365 LLC (2019) 31 CA5th 479, 500, a blogger’s defamation claim against a newspaper was struck because the blogger’s claim arose from statements in a newspaper that were absolutely protected by CC §47(d)’s fair report privilege, and the blogger could not show a probability of prevailing. See §24A.23G.
- Fraud. In Rand Resources, LLC v City of Carson (Feb. 4, 2019, S235735) 2019 Cal App Lexis 635, a defendant’s anti-SLAPP motion to strike failed because the plaintiff’s fraud claim alleging a scheme to breach an exclusive agency agreement and hire competitors was not related to a public interest issue or to a city council’s proceedings, and thus did not arise from protected activity. See §24A.23H.
- Examples of Cases Holding That Plaintiff Did Not Meet Its Burden. In Monster Energy Co. v Schechter (2018) 26 CA5th 54, 70, a plaintiff could not establish a probability of succeeding on a breach of contract claim because the defendant attorneys did not become parties to the contract merely by signing the contract under words stating “approved as to form and content.” In Area 51 Prods., Inc. v City of Alameda (2018) 20 CA5th 581, 603, a plaintiff could not establish a probability of succeeding on a breach of contract claim because defendants were not parties to the contract and plaintiff failed to supply sufficient facts to support an agency theory of liability. See §24A.29.
- Litigation Privilege May Preclude Plaintiff’s Ability to Prevail. In Kettler v Gould (2018) 22 CA5th 593, 611, the litigation privilege did not apply to statements made before litigation that could do nothing to further the objects of the litigation. In MMM Holdings v Reich (2018) 21 CA5th 167, 187, an attorney’s dissemination of documents obtained during a qui tam litigation to other attorneys involved in matters separate from, but related to, the qui tam action was protected by the litigation privilege. See §24A.31.
- Timing After Amended Complaint, Remand, or Transfer. An anti-SLAPP motion to strike a cause of action must be filed within 60 days of service of the earliest complaint containing that cause of action, unless the trial court grants permission for late filing under CCP §425.16(f). The filing of an amended complaint does not extend the 60-day period in which to file an anti-SLAPP motion to strike if an earlier version of the complaint contained the cause of action subject to the desired anti-SLAPP motion. Newport Harbor Ventures, LLC v Morris Cerullo World Evangelism (2018) 4 C5th 637, 640, disapproving Yu v Signet Bank/Virginia (2002) 103 CA4th 298 to the extent it held otherwise. See §24A.42.
- Moving Party’s Procedures—Moving Papers—Supporting Documents. In Bel Air Internet, LLC v Morales (2018) 20 CA5th 924, 936, a court of appeal held that defendants were not required to submit additional evidentiary support to prevail on an anti-SLAPP motion when the complaint sufficiently showed that plaintiff’s claims arose from protected activity. See §24A.52.
Cross-Complaints
- Procedures—Drafting Cross-Complaint—Demand for Relief (Prayer). Demands for “damages according to proof” do not provide adequate notice to sustain a default judgment. Yu v Liberty Surplus Ins. Corp. (2018) 30 CA5th 1024, 1027 ($1.2 million default judgment voided for lack of notice of amount demanded because cross-complainant prayed for “compensatory damages according to proof” and language in cross-complaint incorporating by reference original complaint did not provide clear and unequivocal notice of prayer for relief). See §26.34.
Security for Costs
- Vexatious Litigants—Procedures—Noticed Motion; Timing. A plaintiff may not escape a vexatious litigant motion by voluntarily dismissing a case. For example, in Pittman v Beck Park Apartments Ltd. (2018) 20 CA5th 1009, 1024, a plaintiff’s voluntary dismissal under CCP §581 did not deprive the trial court of jurisdiction to rule on a vexatious litigant motion that had been filed before the dismissal. See §29.57.
Intervention
- Discretionary Intervention. In Edwards v Heartland Payment Sys, Inc. (2018) 29 CA5th 725, 736, plaintiffs’ proposed reasons for intervening did not outweigh the objections to intervention because intervening was not necessary to protect their rights on appeal, their argument that the original plaintiffs’ complaint failed to name certain class representatives had become moot, and they did not need to intervene to seek discovery from defendants. See §31.4.
Summary Judgment
- Timing Requirements—Requesting a Continuance—Continuance to Conduct Further Discovery—Diligence Required—Court Has Limited Discretion to Grant Continuance in Absence of Diligence. In Levingston v Kaiser Found. Health Plan, Inc. (2018) 26 CA5th 309, 317, despite plaintiff’s inexcusable neglect and although plaintiff did not satisfy the statutory requirements of CCP §437c(h), the trial court should have granted a continuance to file a summary judgment opposition when plaintiff’s counsel’s failure was not willful and defendant could not show prejudice. See §36.51.
- Preparing Evidence to Support or Oppose Motion for Summary Judgment or Summary Adjudication—Declarations and Affidavits. In Fernandez v Alexander (2019) 31 CA5th 770, 779, a court of appeal held that the rules of evidence still apply to a court’s liberal construction of declarations opposing a summary judgment motion. See §36.106.
- Preparing Evidence to Support or Oppose Motion for Summary Judgment or Summary Adjudication—Declarations and Affidavits—Opinion Evidence—Expert Opinion Evidence—Include Factual Basis for Opinion. In Fernandez v Alexander (2019) 31 CA5th 770, 782, a court of appeal stated that an expert declaration in opposition to a summary judgment motion is entitled to all favorable inferences, but the inferences must still be reasonably derived from the declaration. See §36.118.
- Preparing Evidence to Support or Oppose Motion for Summary Judgment or Summary Adjudication—Declarations and Affidavits—Opinion Evidence—Expert Opinion Evidence—Must Not be Merely Conclusory. In Doe v Good Samaritan Hosp. (2018) 23 CA5th 653, 662, an expert declaration for a hospital failed to state the facts on which its conclusions were based and did not include a reasoned explanation for the conclusions. In Fernandez v Alexander (2019) 31 CA5th 770, 781, a medical expert offered no reasoned explanation to support a conclusion that defendant doctor caused further deformity to plaintiff’s wrist. See §36.120.
- Challenging the Court’s Order—Appellate Court Review—Review of Evidence—Waiver of Evidentiary Objections—Failure to Object to Admission in Trial Court. In Fernandez v Alexander (2019) 31 CA5th 770, 780, because plaintiff did not object to an expert’s declaration in the trial court, plaintiff could not raise its objections to the expert’s opinion on causation on appeal. See §36.201.
Default
- Seeking Relief From Default or Default Judgment—When Relief Is Mandatory Under CCP §473(b). In Pagnini v Union Bank, N.A. (2018) 28 CA5th 298, 304, a court of appeal held that a demurrer is a dismissal motion for purposes of mandatory CCP §473(b) relief, and that plaintiff was entitled to mandatory relief from a sustained demurrer resulting in dismissal. See §38.93.
- Seeking Relief From Default or Default Judgment—Equitable Relief in Cases of Extrinsic Fraud or Mistake. In Mechling v Asbestos Defendants (2018) 29 CA5th 1241, entry of default judgment against an insured without service of complaint or notice of entry of the default judgment on the insurer constituted extrinsic mistake. See §38.100.
- Seeking Relief From Default or Default Judgment—Relief if Default Judgment Is Void—What Constitutes a Void Judgment. In Calvert v Al Binali (2018) 29 CA5th 954, 961, a default judgment was void on its face because plaintiffs did not publish a summons in the specific newspaper named by the court order authorizing service by publication. See §38.104.
- Seeking Relief From Default or Default Judgment—Relief if Default Judgment Is Void—Timing: Relief for Void Judgment May be Requested at Any Time. In Calvert v Al Binali (2018) 29 CA5th 954, 961, a motion to set aside a void judgment under CCP §473(d) was not subject to the 6-month time limit of CCP §473(b). See §38.105.
- Seeking Relief From Default or Default Judgment—Procedure: How to Obtain Relief From Default or Default Judgment—Reconsideration if Motion Denied. A motion for reconsideration must be made within 10 days after service of written notice of entry of the order at issue. CCP §1008(a); J.W. v Watchtower Bible & Tract Soc’y of New York, Inc. (2018) 29 CA5th 1142, 1171. See §38.105.
Dismissal
- Failure to Bring Action to Trial Within 5 Years: Mandatory Dismissal—When Action “Brought to Trial”—When Jury Impaneled. At least one appellate court has opined that the Hartman procedure of swearing in a witness and then continuing the trial in order to preserve the 5-year period is only permissible when application of the mandatory dismissal statute would be unjust. Warner Bros. Entertainment Inc. v Superior Court (2018) 29 CA5th 243, 265 (Hartman procedure inappropriate when plaintiffs did not exercise reasonable diligence in bringing putative class action to point of class certification, a prerequisite for trial on merits). In Hartman v Santamarina (1982) 30 C3d 762, in contrast, the plaintiff obtained several trial dates that were continued when no judge was available, and then several additional trial dates had to be continued as a result of circumstances outside of the parties’ control. See §39.28.
- Failure to Bring Action to Trial Within 5 Years: Mandatory Dismissal—Statutory Extensions, Excuses, and Exceptions—Court’s Jurisdiction Suspended. In Warner Bros. Entertainment Inc. v Superior Court (2018) 29 CA5th 243, 258, tolling under CCP §583.340(b) was inapplicable when an order imposing a 43-day stay of responsive pleadings and formal discovery was not a complete stay used to stop prosecution of the action altogether. See §39.40.
- Other Grounds for Involuntary Dismissal—Inherent Authority of Court. Independent of other statutory grounds, the court may dismiss an action with prejudice or impose other sanctions under court rules granting it inherent authority to do so. CCP §583.150. This power has been used to dismiss cases when a plaintiff has failed to prosecute diligently or the complaint is “fictitious or sham” such that the plaintiff has no valid cause of action. See, e.g., Huang v Hanks (2018) 23 CA5th 179, 182 (trial court had inherent authority to dismiss fantastic, delusional, and fanciful claim that famous persons used nano-probes to control plaintiff’s mind). See §39.65.
- Voluntary Dismissal—Description and Use—Tactical Considerations. In Shapira v Lifetech Resources, LLC (2018) 22 CA5th 429, 441, plaintiff, anticipating that defendant would be the prevailing party, requested dismissal of the case, with prejudice, after the commencement of trial but before submission. The trial court, citing fairness grounds, refused to grant plaintiff’s request to dismiss, awarded judgment in defendant’s favor, and ordered plaintiff to pay contractual attorney fees to defendant as the prevailing party. The appellate court reversed, holding that (1) a trial court must grant a plaintiff's dismissal request under CCP §581(e) after commencement of trial but before submission, and (2) a trial court lacks discretion to award contractual attorney fees under CC §1717(b)(2) after a case has been voluntarily dismissed. See §39.98.
Trial Preference and Continuance Motions
- Grounds for Motion for Trial Preference—Party Over Age 70. In Fox v Superior Court (2018) 21 CA5th 529, 535, the court of appeal held that it is error to deny a motion for trial preference by an 81-year old plaintiff suffering from stage IV lung cancer. See §42.4.
- Motions for Continuance—Statutory Grounds. In Padda v Superior Court (2018) 25 CA5th 25, 28, it was an abuse of discretion not to grant a continuance request after an expert witness fell ill less than 2 weeks before trial. See §42.22.
Alternative Dispute Resolution
- Enforceability of Arbitration Agreement. The Federal Arbitration Act (FAA) authorizes a court to stay litigation and send the parties to an arbitral forum, unless the arbitration agreement is set forth within a contract that is exempt from the Act (e.g., if the arbitration agreement is set forth in a contract of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce). 9 USC §1. It is for a court, and not an arbitrator, to determine whether the contract in question falls within the coverage of the FAA or is exempt. New Prime, Inc. v Oliveira (2019) 586 US ___, 139 S Ct 532, 537. See §45.26.
- Who Decides Issues of Enforceability. In Henry Schein, Inc. v Archer & White Sales, Inc. (2019) 586 US ___, 139 S Ct 524, 529, the United States Supreme Court determined that a court may not conduct an inquiry into whether an assertion of arbitrability itself is wholly groundless if the issue of arbitrability has been clearly and unmistakably delegated to an arbitrator within an arbitration agreement governed by the FAA. The Supreme Court noted that a “wholly groundless” exception to the rule permitting arbitrators to determine issues of arbitrability (when the issue has been clearly delegated to them) is inconsistent with the text of the FAA, noting that “[w]hen the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in the contract.” This decision settled a dispute regarding this issue among the courts of appeal. See, e.g., Smythe v Uber Technols., Inc. (2018) 24 CA5th 327, 333 (delegation clause clearly directed the arbitrator to determine arbitrability, yet court of appeal conducted limited inquiry into whether defendant’s assertion of arbitrability under arbitration agreement goverend by FAA was wholly groundless). In reaching this decision, the Supreme Court likely abrogated Smythe, but did not specifically name Smythe in its decision. See §45.27A.
- Methods of Alternative Dispute Resolution—Arbitration by Contractual Agreement—Enforceability of Arbitration Agreement—Unconscionability—Class Action Waivers. In Muro v Cornerstone Staffing Solutions, Inc. (2018) 20 CA5th 784, 792, when a plaintiff made a sufficient showing under the Gentry test, the trial court properly denied a petition to compel arbitration agreement that contained a class action waiver and the arbitration agreement was exempted from the FAA. See §45.28D.
- Arbitration by Contractual Agreement—Arbitration Procedures—Order Compelling or Denying Arbitration. In Avila v Southern Cal. Specialty Care, Inc. (2018) 20 CA 5th 835, 844, a trial court reasonably stayed an arbitration of survivorship claim due to a risk of inconsistent results with a wrongful death claim. See §45.35.
- Arbitration by Contractual Agreement—Arbitration Process—Discovery. If a party to an arbitration agreement is dissatisfied with the superior court’s decision regarding an arbitrator’s discovery order, the party may appeal the superior court’s decision. Uber Technols., Inc. v Google LLC (2018) 27 CA5th 953, 962 (defendant party to arbitration agreement could appeal superior court’s order vacating arbitrator’s order compelling third party to produce documents because superior court’s order was final determination of discovery rights between defendant and third party). See §45.40.
- Arbitration by Contractual Agreement—Arbitration Awards and Remedies—Confirming, Correcting, or Vacating Award. The court must vacate the award if it finds any of the grounds listed in CCP §1286.2. See, e.g., Honeycutt v JPMorgan Chase Bank, N.A. (2018) 25 CA5th 909, 930 (award vacated under CCP §1286.2(a)(6)(A) because arbitrator failed to disclose separate, pending arbitration involving same attorney); Baker Marquart LLP v Kantor (2018) 22 CA5th 729, 741 (award vacated under CCP §1286.2(a)(1) as procured by “undue means” because arbitrators took into consideration claims not made in arbitration demand and to which defendant not given opportunity to respond). See §45.49.
Offers to Allow Judgment (CCP §998)
- Nature of Offer—Actions in Which Offer May be Made. In actions to establish an insured decedent’s liability under Prob C §§550–555, a plaintiff may recover costs in excess of the policy limits if the insurer fails to accept a reasonable CCP §998 offer, even if the insurer is not a named party. This is because the insurer, as the entity that controls the litigation and incurs the risk of loss, is a de facto party. Meleski v Estate of Albert Hotlen (2018) 29 CA5th 616, 625 (in action brought under Prob C §§550–555, plaintiff’s damage award was reduced from $180,000 to $100,000 policy limit under Prob C §554, but additional $66,000 cost award upheld because insurer rejected plaintiff’s more favorable settlement offer before trial). See §47.4.
- Nature of Offer—Consequences of Refusing Offer—Plaintiff Refuses Defendant’s Offer. If the plaintiff reasonably rejects a CCP §998 offer, the attorney fees accrued after the offer may still be recoverable by the plaintiff. See, e.g., Etcheson v FCA US LLC (2018) 30 CA5th 831, 834 (trial court erred in cutting off plaintiffs’ ability to recover attorney fees and costs incurred after date defendant tendered impermissibly vague offer to compromise). See §47.6.
- Procedures for Making and Accepting Offer—Format of Offer. Ambiguities in a CCP §998 offer may be clarified in writing after it has been made. Prince v Invensure Ins. Brokers, Inc. (2018) 23 CA5th 614, 623 (correspondence between counsel resolved ambiguity in offer). A party bringing an action under a statute that requires a judicial determination of liability for recovery of attorney fees must be careful when using Form CIV-090 to make a CCP §998 offer. None of the checkbox options for costs and fees included in Form CIV-090 provides for costs outside of the context of CCP §1032 and/or reasonable attorney fees to be determined by the court (beyond those permitted by statute). Checking one of these boxes, without providing an additional explanation under box 2(b) or including an attachment to the form, can preclude a party’s recovery of attorney fees in certain instances. For example, in Linton v County of Contra Costa (2019) 31 CA5th 628, 638, the plaintiff brought an action under the California Disabled Persons Act (DPA) (CC §54–55.3). Plaintiff made a CCP §998 offer using Form CIV-090, checked box 2(a)(5) (“[p]lus costs under Code of Civil Procedure section 1032 and attorney’s fees allowed by law as determined by the court”), and provided no further explanation of the settlement terms. The defendant accepted the offer. Although plaintiff was the prevailing party and entitled to costs under CCP §1032, she was not entitled to attorney fees because, under the DPA, recovery of fees requires a judicial determination of defendant’s liability, of which there had been none. See §47.11.
- Procedures for Making and Accepting Offer—Terms of Offer—Defendant’s Offer to Plaintiff. In Etcheson v FCA US LLC (2018) 30 CA5th 831, 851, an offer that was vague, incomplete, and unclear as to whether plaintiffs would be required to sign a release, was invalid and could not be used to cut off plaintiffs’ recovery of fees and costs. See §47.12.
- Procedures for Making and Accepting Offer—Terms of Offer—Good Faith Requirement. In Licudine v Cedars-Sinai Med. Ctr. (2019) 30 CA5th, 918, 926, CCP §998 costs were properly denied when plaintiff served an offer 19 days after service of the complaint (5 days after defendant filed an answer), and defendant had little information on the issues of liability and amount of damages. See §47.15.
- Procedures for Making and Accepting Offer—Joint Offers—Multiple Plaintiffs Making Offer to One Defendant. Plaintiffs may make a joint offer, even if each plaintiff suffered separate injuries. Gonzalez v Lew (2018) 20 CA5th 155, 171 (plaintiffs’ joint CCP §998 offer was not automatically invalidated by fact that plaintiffs did not suffer single, indivisible injury; CCP §998 penalties applied when defendants rejected plaintiff’s $1.5 million offer, one plaintiff recovered $2.2 million at trial, and other plaintiff recovered $357,000). See §47.20.
Good Faith Settlement
- Overview—Impact of Fair Responsibility Act of 1986 on Good Faith Determinations. In LAOSD Asbestos Cases (2018) 28 CA5th 862, 883, a nonsettling defendant was not entitled to CCP §877 credits based on settlements with original, later-deceased plaintiffs when subsequent wrongful death plaintiffs were not bound by the settlement agreement. See §50.7.

About the Authors

Michael C. Denison (Chapter 24A) is a partner in the Los Angeles law firm of Towle Denison Smith & Maniscalco LLP. He practices civil litigation with an emphasis on business litigation and defending business-related torts. Mr. Denison received his J.D. from Loyola Law School Los Angeles in 1974. Before practicing civil litigation, he clerked for the Hon. Manuel L. Real, United States District Court, and served as an assistant United States attorney.

Hon. Fumiko Hachiya Wasserman (Chapter 24A) is a judge of the Los Angeles Superior Court and has served in appellate, civil, criminal, and juvenile assignments. Judge Wasserman served as the chair of the California Center for Judicial Education and Research (CJER) Governing Committee and has developed curricula and taught judges and lawyers throughout her judicial career on a wide range of topics, from criminal proceedings to managing complex civil litigation. She has taught as the National Judicial College, Loyola Law School Los Angeles, and the University of Southern California. Before her appointment to the bench, Judge Wasserman was an assistant United States attorney, a real estate and corporate associate, a deputy Los Angeles city attorney, and a law clerk for the Hon. Terry J. Hatter, Jr., of the United States District Court for the Central District of California. She received her J.D. from Loyola Law School Los Angeles.

About the 2019 Update Authors

TINA M. ALLEGUEZ, B.A., University of California, San Diego; J.D., Pepperdine School of Law. Ms. Alleguez is the managing partner of Alleguez Newman Goodstein LLP in Woodland Hills, where her principal practice areas are commercial litigation with an emphasis in premises and products liability defense, business, and real estate litigation. Ms. Alleguez also serves as outside general counsel for a variety of business clients, advising them in business entity formation, acquisition or sale of businesses or commercial real estate, and business operating issues (including contract preparation and negotiation, collections, risk management analysis, corporate compliance, and dissolution). Ms. Alleguez is a member of the San Fernando Valley Bar Association and is the Board President of a dual immersion nonprofit charter school located in Canoga Park. Ms. Alleguez assisted with the update of chapter 42.

AMY T. BRANTLY, B.A., California State University, Fullerton, magna cum laude; J.D., Fordham University School of Law. Ms. Brantly is a founding partner of Kesselman Brantly Stockinger LLP, where her primary practice areas include business litigation and antitrust and unfair competition matters. Ms. Brantly’s antitrust experience includes litigating group boycott cases, exclusionary contracting practices, price fixing, and bid rigging involving numerous markets, including semiconductors, medical devices, cosmetics, and sports. For several years, Ms. Brantly has served as a contributing editor of the leading treatise in California on antitrust and unfair competition law. She is also active in the community, volunteering at the Sojourn domestic violence clinic with the Woman Lawyers Association (WLA) of Los Angeles, and has served on the Board of the WLA for a decade, including serving as President from 2017–2018. Ms. Brantly assisted with the update of chapter 39.

MARGARET L. CARTER, A.B. and J.D., Harvard University. Ms. Carter is a litigation partner in the Los Angeles office of O’Melveny & Myers LLP. She is a former federal prosecutor who specializes in high-stakes civil and white collar criminal trials, sensitive internal investigations, and regulatory matters. The Los Angeles Business Journal named Ms. Carter among the “Most Influential Women Lawyers” in Los Angeles. Ms. Carter is a former Ninth Circuit clerk. She assisted with the update of chapter 23, and acknowledges Daniel Tully and Katelyn Kuwata, associates with O’Melveny & Myers, for their valuable assistance in updating this chapter.

MONISHA A. COELHO, B.A., St. Xavier College; LL.B., University of Bombay; LL.M., University of Southern California. Ms. Coelho is the Head of International Practice with the Adli Law Group in Los Angeles, where her main practice areas are business litigation, complex corporate transactions, and cross-border India-U.S. litigation and transactions. She is amongst a small group of attorneys nationwide who have successfully practiced law (transactions and litigation) in both California and India. She was featured on the cover of the Los Angeles Lawyer Magazine, has been invited to speak at Los Angeles law schools and bar associations, and authored the book, Fundamentals of an American Lawsuit (For Businesses). Ms. Coelho assisted with the update of chapter 7.

DAVID DORENFELD, B.A., Cal State University, Northridge; J.D., Whittier College School of Law, magna cum laude. Mr. Dorenfeld is the founder and principal of DorenfeldLaw, Inc. Mr. Dorenfeld has over 20 years of experience, and focuses his practice in areas of business law, real estate, and insurance law. He regularly sits as a pro tem judge and offers his services as a pro bono mediator for the County of Los Angeles. Mr. Dorenfeld provides continuing education to the insurance industry and is regularly called on by other lawyers for litigation strategy and resolution of insurance-related coverage issues. Mr. Dorenfeld assisted with the update of chapter 45.

GARY J. GOODSTEIN, B.A., San Francisco State University; J.D., Loyola Law School, cum laude. Mr. Goodstein is a partner with Alleguez Newman Goodstein LLP in Woodland Hills, where his practice focuses on complex business disputes, real estate litigation, insurance coverage, and civil appeals. Mr. Goodstein is a member of the Board of Trustees of the San Fernando Valley Bar Association and the Litigation Section executive committee of the Los Angeles County Bar Association (LACBA). He is also the past president of the Los Angeles Trial Practice chapter of the American Inns of Court. He regularly conducts continuing education seminars on topics including civil procedure, evidence, and trial technique. Mr. Goodstein assisted with the update of chapter 24.

LISA LAWSON, A.B., Duke University; J.D., UCLA School of Law. Ms. Lawson is a partner at Lawson & Lawson LLP, where she specializes in employment litigation. Ms. Lawson has over 20 years of experience litigating high-stakes employment-related cases and advising California employers and executives. She has served on the Executive Committee of the State Bar’s Labor and Employment Law Section (now under the California Lawyer’s Association (CLA)). Ms. Lawson also has been peer rated “Preeminent” (5 out of 5) by Martindale Hubbell and has consistently been named a Northern California “Super Lawyer.” Ms. Lawson assisted with the update of chapter 47.

SCOTT G. LAWSON, B.A., University of California, Berkeley; M.A., University of California, Berkeley; J.D., University of Utah College of Law. Mr. Lawson is a partner in Lawson & Lawson LLP in San Francisco and Oakland, where he is an employment and commercial litigation trial lawyer. Mr. Lawson is Vice-Chair of the Executive Committee of the Litigation Section of the Bar Association of San Francisco (BASF). He also serves as an instructor in the Trial Skills Workshop at Stanford Law School. Mr. Lawson assisted with the update of chapter 36.

AARON M. MAY, B.A./B.S., Brown University; J.D., Stanford Law School. Mr. May is a founding partner at Huang Ybarra Gelberg & May LLP in Los Angeles, where his principal practice areas are commercial civil litigation and government investigations. Mr. May is a former federal prosecutor and is currently a member of the Executive Committee of the Los Angeles County Bar Association (LACBA) Litigation Section and Vice President of the Board of Directors of the Housing Rights Center, the nation’s largest nonprofit, civil rights organization dedicated to promoting and securing fair housing. Mr. May assisted with the update of chapter 23.

WARREN METLITZKY, B.A., Yale University; J.D., University of Michigan Law School, cum laude. Mr. Metlitzky is a founding partner of Conrad & Metlitzky, a civil trial boutique in San Francisco. He is an accomplished first-chair trial and appellate lawyer representing businesses and individuals in state and federal courts. He specializes in trying high-profile jury cases to verdict, and has successfully argued before the Ninth Circuit and the California Court of Appeal. Following law school, Mr. Metlitzky clerked for the Honorable Chief Judge Marilyn Hall Patel in the Northern District of California. After a few years in private practice, he then spent nearly a decade as a trial lawyer with the San Francisco City Attorney’s Office handling dozens of civil jury trials and appeals in both state and federal courts. The County Counsel’s Association of California recognized Mr. Metlitzky for his appellate work with its annual Litigation Award. He then joined the Department of Justice as an Assistant United States Attorney in the Northern District of California, where he was appointed as a Special Attorney to the United States Attorney General. Mr. Metlitzky served as the Chair of the San Francisco Bar Association’s Litigation Section and is a frequent speaker for continuing education programs. He also coaches UC Berkeley School of Law’s mock trial team, guest lectures on trial advocacy at local law schools, and is a certified mediator. He is on the Board of Directors of the San Francisco Jewish Bar Association and is a member of the Bar Association of San Francisco, the Federal Bar Association, and The Edward J. McFetridge American Inn of Court. Mr. Metlitzky assisted with the update of chapter 36.

LAURIE CARR MIMS, A.B., Duke University, summa cum laude; J.D., Harvard Law School, cum laude. Ms. Mims, who is a partner at Keker, Van Nest & Peters LLP, has extensive experience litigating complex civil matters, including securities class actions and shareholder derivative actions. She has tried a variety of cases, including several as first chair. While Ms. Mims has represented institutional and individual clients from a wide range of industries, most of her clients are in the biotechnology and venture capital fields. She has also handled high-stakes matters involving the False Claims Act, breach of contract, fraud, trade secret theft, and copyright infringement, and has defended individuals in DOJ investigations and prosecutions. She is the Chair of the Bar Association of San Francisco’s Litigation Section (BASF). Ms. Mims assisted with the update of chapter 22.

DIMITRI D. PORTNOI, B.A., Columbia University; J.D., New York University. Mr. Portnoi is a litigation partner in the Los Angeles office of O’Melveny & Myers LLP, where he represents clients in a wide range of complex business litigation, financial service, and entertainment matters, including consumer class actions, unfair competition, business torts, fraud, contract, and related commercial litigation. Mr. Portnoi assisted with the update of chapter 23, and acknowledges Daniel Tully and Katelyn Kuwata, associates with O’Melveny & Myers, for their valuable assistance in updating this chapter.

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