California Trial Practice: Civil Procedure During Trial

Court Conferences and Selected Pretrial Motions (chapter 6)

• Grounds to disqualify the judge exist if the judge has a financial interest in the subject matter of the proceeding or in a party to the proceeding. See Chaganti v Superior Court (2021) 73 CA5th 237, 247 (judge’s ownership of stock in parent corporation with value in excess of $1,500 is “financial interest” within meaning of CCP §170.1 in parent’s wholly owned subsidiary), in §6.35.

• Code of Civil Procedure §170.3(c)(3) does not require a judge who consents to disqualification to concede every alleged ground for disqualification, nor does the judge, by consenting to disqualification based on cumulative conduct allegedly establishing bias or appearance of bias, concede that each alleged act standing alone constitutes actual or perceived bias. See Vallejo v Superior Court (2021) 73 CA5th 132, 150, in §6.55.

Jury Selection (chapter 8)

• There is no right to a jury trial in an action for statutory penalties under the Labor Code Private Attorneys General Act (PAGA) because a PAGA action “is not a garden variety civil penalty action.” See LaFace v Ralphs Grocery Co. (2022) 75 CA5th 388, 400, in §8.4.

• The California Supreme Court has granted review in Tricoast Builders, Inc. v Fonnegra (review granted Apr. 27, 2022, S273368; opinion at 74 CA5th 239 to remain published and precedential until further order) to determine whether a trial court abuses its discretion when it denies a request for relief from a jury trial waiver without a showing that granting the request will prejudice the opposing party or the trial court. See §§8.16, 8.18.

• Jurors are entitled to free access to public transit. See CCP §215(d)–(g) in §8.29.

Opening Statement (chapter 9)

• In Multiversal Enters.-Mammoth Props., LLC v Yelp, Inc. (2022) 74 CA5th 890, 904, the court of appeal held that the trial court properly excluded the plaintiff’s principal from the portion of the trial at which trade secrets were discussed when the plaintiff was represented by counsel and the court permitted the plaintiff’s expert to be present. See §9.13.

Evidence Overview (chapter 10)

• Effective August 22, 2022, in all cases except civil actions for personal injury or wrongful death, Evid C §351.3 prohibits evidence of a person’s immigration status from being disclosed in open court by a party or their attorney unless the judge determines, after an in camera hearing requested by the party seeking disclosure, that the evidence is admissible or a specified exception applies. See §10.58A.

• In Paige v Safeway, Inc. (2022) 74 CA5th 1108, 1122, the court of appeal held that the trial court erred in prohibiting a party from using the ASTM standard during its cross-examination of an expert because the expert did not rely on the standard in forming his opinion when the standard was established as reliable authority. See §10.80.

Effective Use of Discovery (chapter 12)

• In Berroteran v Superior Court (2022) 12 C5th 867, 900, the California Supreme Court held that a trial court must conduct a “factually intensive inquiry” when faced with a motion to exclude prior deposition testimony under Evid C §1291(a)(2) and set out an approach for trial courts to take. See §12.76.

Misconduct of Counsel and Court (chapter 16)

• In Shiheiber v JPMorgan Chase Bank, N.A. (2022) 81 CA5th 688, 696, the court of appeal held that CCP §575.2, which permits local rules to provide for sanctions for an attorney’s failure to comply with local rules, applies to trial proceedings and does not incorporate CCP §128.5’s bad faith standard. See §16.5.

Judgments (chapter 23)

• The California Supreme Court has granted review in Pacific Fertility Cases (review granted Aug. 17, 2022, S275134; opinion at 78 CA5th 568 to remain published and precedential until further order) to determine whether a petition for writ of mandate is the exclusive means of challenging an order approving or denying a good faith settlement under CCP §877.6. See §23.3.

Motions After Trial (chapter 25)

• The distinction between clerical and judicial error turns on whether the error was inadvertently made in recording the judgment or was made in rendering the judgment itself. See Estate of Douglas (2022) 83 CA5th 690, 696 (clerical error when party applied to clerk to renew judgment but failed to include capacity as judgment debtor such that clerk’s entry of renewal based on application was ministerial and involved no exercise of judicial discretion, judicial reasoning, or judicial determination), in §25.79.

Recovering Attorney Fees (chapter 26)

• In San Luis Obispo Local Agency Formation Comm’n v Central Coast Dev. Co. (2022) 78 CA5th 363, 368, the court of appeal held that CC §1717 was inapplicable to a contract by a public agency that exceeded the agency’s statutory power. See §26.77.

Recovering Costs and Obtaining Interest (chapter 27)

• For judgments entered on or after January 1, 2023, or when an application for renewal of judgment is filed on or after January 1, 2023, the legal rate of interest is 5 percent per year on the principal amount of a money judgment remaining unsatisfied in specified cases. See §27.114.

About the Third Edition Authors

MARY E. ALEXANDER received her B.A. degree in 1969 from the University of Iowa, her M.P.H. degree in 1975 from the University of California, Berkeley, and her J.D. degree in 1982 from the University of Santa Clara. Ms. Alexander, of Cartwright, Bokelman, Borowsky, Moore, Harris, Alexander & Gruen, Inc., in San Francisco, specializes in medical malpractice, product liability, and toxic chemical litigation. She is the author of chapter 19.

STEPHANIE L. BERMAN received her B.A. degree in 1987 from the University of Michigan and her J.D. degree in 1991 from George Washington University. Ms. Berman, of Crosby, Heafey, Roach & May in Oakland, specializes in commercial litigation and product liability, and is an author of chapter 21.

PETER J. BUSCH received his B.A. degree in 1974 from Yale University and his J.D. degree in 1977 from the University of Virginia. Mr. Busch, of Howard, Rice, Nemerovski, Canady, Falk & Rabkin in San Francisco, specializes in civil litigation, and is an author of chapter 13.

MARLENE I. CAMACHO received her B.S. degree in 1986 from California State University, Los Angeles, and her J.D. degree in 1991 from the University of California, Los Angeles, School of Law. Ms. Camacho, of Frandzel & Share in Los Angeles, specializes in commercial litigation, and is an author of chapters 2 and 6.

DONALD W. CARLSON received his B.A. degree in 1974 from the University of California, Santa Barbara, and his J.D. degree in 1977 from the University of California College of the Law, San Francisco. Mr. Carlson, of Long & Levit in San Francisco, specializes in professional liability, insurance fraud, and bad faith litigation. He is an author of chapter 12.

RANDALL B. CHRISTISON received his B.A. degree in 1965 from the University of Southern California and his J.D. degree in 1973 from Santa Clara University. Mr. Christison, Supervising Deputy Attorney General at the Office of the Attorney General in San Francisco, specializes in civil litigation and natural resources law. He is the author of chapter 18.

GARY CHRISTOPHERSON received his B.A. degree in 1966 from Stanford University and his J.D. degree in 1969 from the University of California, Los Angeles, School of Law. Mr. Christopherson, of Kroloff, Belcher, Smart, Perry & Christopherson in Stockton, specializes in civil litigation, real estate, and business law. He is an author of chapter 8.

CYNTHIA A. COE received her B.S. degree in 1983 from Arizona State University and her J.D. degree in 1986 from Yale University. Ms. Coe, of McCutchen, Doyle, Brown & Enersen in Washington, D.C., specializes in commercial litigation and appellate law, and is an author of chapter 3.

HON. JACQUELINE A. CONNOR received her B.A. degree in 1973 and her J.D. degree in 1976 from the University of Southern California. Judge Connor was formerly a litigator with the office of the Los Angeles County District Attorney. Judge Connor serves as a judge of the Los Angeles County Superior Court, and is an author of chapter 1.

JOSEPH W. COTCHETT received his B.S. degree in 1960 from California Polytechnic College and his LL.B. degree in 1964 from the University of California College of the Law, San Francisco. Mr. Cotchett, of Cotchett, Illston & Pitre in Burlingame, specializes in civil litigation, and is the author of chapter 15.

WILLIAM J. ELFVING received his B.A. degree in 1962 from Stanford University and his J.D. degree in 1965 from the University of California, Los Angeles, School of Law. Mr. Elfving, of Hoge, Fenton, Jones & Appel, Inc., in San Jose, specializes in civil litigation and malpractice defense, and is an author of chapter 5.

MARTA A. ELLIOTT received her B.A. degree in 1974, and her M.A. degree in 1975, from Stanford University, and her J.D. degree in 1978 from the University of California College of the Law, San Francisco. Ms. Elliott, when working on this book, was a partner of Hoge, Fenton, Jones & Appel, Inc., in San Jose, specializing in civil litigation. She is an author of chapter 5.

RICHARD A. FOND received his B.A. degree in 1969 from the University of Southern California and his J.D. degree in 1972 from the University of Southern California. Mr. Fond, of Simke Chodos in Los Angeles, specializes in civil litigation, and is an author of chapter 23.

HON. HOLLY J. FUJIE received her B.A. degree in 1975 from the University of California, Berkeley, and her J.D. degree in 1978 from the University of California, Berkeley, School of Law. Ms. Fujie is a judge of the Los Angeles County Superior Court. Before becoming a bench officer, Judge Fujie was a litigation shareholder of Buchalter Nemer, PC in Los Angeles, specializing in complex civil litigation, and she served as the chair of the firm’s insurance group. She is the author of chapter 4.

JOHN S. GILMORE received his B.A. degree in 1958 from the University of California, Berkeley, and his LL.B. degree in 1961 from the University of California College of the Law, San Francisco. Mr. Gilmore, of Diepenbrock, Wulff, Plant & Hannegan in Sacramento, specializes in civil trials, and is the author of chapter 25.

CHRISTOPHER B. HOCKETT received his B.S. degree in 1981 from the College of William and Mary and his J.D. degree in 1985 from the University of Virginia. Mr. Hockett, of McCutcheon, Doyle, Brown & Enersen in San Francisco, specializes in commercial litigation and antitrust law. He is an author of chapter 3.

JOHN B. HOOK received his B.A. degree in 1952 from Harvard University and his J.D. degree in 1955 from Harvard Law School. Mr. Hook, of Long & Levit in San Francisco, specializes in trial practice, insurance coverage, property damages, and subrogation. He is an author of chapter 12.

STEVEN EVANS KIRBY received his B.S. degree in 1967 from the University of Oregon and his J.D. degree in 1971 from the University of San Francisco. Mr. Kirby, of Hollister & Brace in Santa Barbara, specializes in natural resources law and civil litigation. He is an author of chapters 26 and 27.

SUSAN T. KUMAGAI received her B.S. degree in 1974 from the University of California, Berkeley, and her J.D. degree in 1986 from the University of California, Davis, School of Law. Ms. Kumagai, of Lafayette, Kumagai & Clarke in San Francisco, specializes in civil litigation, and is an author of chapter 24.

GARY T. LAFAYETTE received his B.S. degree in 1975 from Dartmouth College and his J.D. degree in 1979 from the University of California, Berkeley, School of Law. Mr. Lafayette, of Lafayette, Kumagai & Clarke in San Francisco, specializes in complex civil litigation, insurance bad faith, and business torts. He is an author of chapter 24.

HON. PATRICIA M. LUCAS received her B.A. degree in 1976 from Rice University and her J.D. degree in 1979 from the University of California, Berkeley, School of Law. Judge Lucas formerly practiced law with Fenwick & West in Mountain View, where she chaired the litigation group. Judge Lucas serves on the Santa Clara Superior Court, and is an author of chapter 1.

WEYMAN I. LUNDQUIST received his B.A. degree in 1952 from Dartmouth College and his LL.B. degree in 1955 from Harvard Law School. Mr. Lundquist, Senior Fellow at Dartmouth College, John Sloan Dickey Center for International Understanding, is participating in a collaborative study of the Russian legal system. Mr. Lundquist is a partner of Heller, Ehrman, White & McAuliffe in San Francisco, and is the author of chapter 9.

HON. JAMES J. MARCHIANO received his A.B. degree in 1965 from St. Patrick’s College and his J.D. degree in 1969 from the University of California, Berkeley, School of Law. Judge Marchiano, formerly Superior Court Judge of Contra Costa County from 1988–1998, serves as the Presiding Justice on the First District Court of Appeal, Division One. He is the author of chapter 16 and an author of chapter 17.

STEPHEN H. MARCUS received his B.S. degree in 1967 from the Massachusetts Institute of Technology and his J.D. degree in 1970 from Harvard Law School. Mr. Marcus, of Gittler & Bradford in Los Angeles, specializes in commercial and business litigation. He is an author of chapters 2 and 6.

STEPHEN A. McFEELY received his B.S. degree in 1969 from St. Mary’s College and his J.D. degree in 1972 from the University of California College of the Law, San Francisco. Mr. McFeely is the managing partner of Crosby, Heafey, Roach & May in Oakland, specializing in commercial litigation. He is an author of chapters 17 and 21.

DONALD F. MILES received his B.A. degree in 1971 from Stanford University and his J.D. degree in 1974 from the University of California College of the Law, San Francisco. Mr. Miles, of Howard, Rice, Nemerovski, Canady, Falk & Rabkin in San Francisco, specializes in insurance coverage, employment, and product liability litigation. He is an author of chapters 10 and 13.

HON. MARLA J. MILLER received her A.B. degree in 1976 from Harvard University and her J.D. degree in 1980 from Harvard Law School. Judge Miller formerly practiced law with Howard, Rice, Nemerovski, Canady, Falk & Rabkin in San Francisco, where she served as the chair of the litigation department and specialized in civil litigation and white collar criminal defense. She currently serves as a judge of the San Francisco Superior Court. Judge Miller is an author of chapter 10.

PAUL J. NEIBERGS received his B.A. degree in 1984 from Harvard University and his J.D. degree in 1988 from Harvard Law School. Mr. Neibergs practices environmental law in the San Francisco Bay Area, and is an author of chapters 26 and 27.

RON A. NORTHUP received his A.B. degree in 1988 from the University of California, Berkeley, and his J.D. degree in 1991 from the University of San Diego. Mr. Northup, of Kroloff, Belcher, Smart, Perry & Christopherson in Stockton, specializes in civil litigation, and is an author of chapter 8.

LEO J. O’BRIEN received his A.B. degree in 1950, and his J.D. degree in 1953, from the University of San Francisco, and his LL.M. degree in 1955 from Georgetown University. Professor O’Brien is Professor Emeritus. He taught evidence at the University of California College of the Law, San Francisco, and is an author of chapter 10.

JAMES N. PENROD received his B.S. degree in 1963 from the United States Naval Academy and his J.D. degree in 1967 from George Washington University. Mr. Penrod, of Morgan, Lewis & Brockius LLP in San Francisco, specializes in civil litigation, and is an author of chapter 1.

THOMAS O. PERRY received his B.A. degree in 1967 from the University of Southern California and his J.D. degree in 1971 from Loyola University, Los Angeles. Mr. Perry, of Kroloff, Belcher, Smart, Perry & Christopherson in Stockton, specializes in civil litigation, and is an author of chapter 8.

PAMELA PHILLIPS received her B.A. degree in 1973 from Clark University and her J.D. degree in 1976 from Villanova University. Ms. Phillips, of Rogers, Joseph, O’Donnell & Quinn in San Francisco, specializes in complex civil litigation and legal malpractice, and is the author of chapter 14.

JAMES A. RICHMAN received his J.D. degree in 1965 from the University of San Francisco. Mr. Richman, of Cooley Godward Castro Huddleson & Tatu in San Francisco, specializes in civil litigation, and is the author of chapter 20.

ELLEN R. ROSEN received her B.A. degree in 1982 from La Salle University and her J.D. degree in 1985 from Villanova University. Ms. Rosen, of Simke Chodos in Los Angeles, specializes in civil litigation, and is an author of chapter 23.

STEVEN E. SCHON received his B.A. degree in 1972, and his J.D. degree in 1976, from the University of Michigan. Mr. Schon, of Howard, Rice, Nemerovski, Canady, Falk & Rabkin in San Francisco, specializes in civil litigation and representation of professionals. He is the author of chapter 7.

ARTHUR L. SHERWOOD received his B.A. degree in 1964 from the University of California, Berkeley, his M.S. degree in 1965 from the University of Chicago, and his J.D. degree in 1968 from Harvard Law School. Mr. Sherwood, of Gibson, Dunn & Crutcher in Los Angeles, specializes in business litigation, and is the author of chapter 22.

GEOFFREY L. THOMAS received his B.A. degree in 1967 from Harvard University and his J.D. degree in 1971 from Stanford University. Mr. Thomas, of Paul, Hastings, Janofsky & Walker in Los Angeles, specializes in civil litigation, and is the author of chapter 11.

HON. ANDREW J. WISTRICH received his B.A. degrees in 1972 and 1973 from the University of California, Berkeley, and his J.D. degree in 1976 from the University of Chicago. Judge Wistrich was formerly a partner of Brown & Bain in Palo Alto, where he specialized in complex civil litigation. Judge Wistrich is a Magistrate Judge of the United States District Court, Central District of California in Los Angeles, and is an author of chapter 1.