CALIFORNIA STUDENT SUPPLEMENT. to Accompany CIVIL LITIGATION THIRD EDITION. Peggy N. Kerley, Joanne Banker Hames, Paul A. Sukys.

Transcription

1 CALIFORNIA STUDENT SUPPLEMENT to Accompany CIVIL LITIGATION THIRD EDITION Peggy N. Kerley, Joanne Banker Hames, Paul A. Sukys Prepared by Joanne Banker Hames

2 CONTENTS PART I INTRODUCTION TO CIVIL LITIGATION FOR THE PARALEGAL Chapter 1 Litigation and the Paralegal... 1 Addenda... 2 Chapter 2 The Courts and Jurisdiction... 3 PART II INITIATING LITIGATION Chapter 3 Preliminary Considerations... 6 Chapter 4 Investigation and Evidence... 9 Chapter 5 The Initial Pleadings Chapter 6 Responses to the Initial Pleading Chapter 7 Motion Practice PART III DISCOVERY Chapter 8 Overview of the Discovery Process Chapter 8a Exchange of Information Concerning Expert Witnesses Chapter 9 Depositions Chapter 10 Interrogatories Chapter 11 Physical and Mental Examinations Chapter 12 Request For Documents Addendum Chapter 13 Request for Admissions Addendum PART IV PRETRIAL, TRIAL, AND POSTTRIAL Chapter 14 Settlements, Dismissals, and Alternative Dispute Resolution Chapter 15 Trial Techniques Chapter 16 Posttrial Practice ii

3 PART I INTRODUCTION TO CIVIL LITIGATION FOR THE PARALEGAL CHAPTER 1 LITIGATION AND THE PARALEGAL Civil Litigation in California State Courts is regulated by: California Code of Civil Procedure California Rules of Court Local Rules of Court California Case Law The Judicial Council adopts rules and approves forms for litigation practice in California. Bookmark these cites. You will refer to them often: California Code California Rules of Court California Codes, Cases Judicial Council Forms Recent California Cases KEY POINTS california.findlaw.com/ WHAT CIVIL LITIGATION IS The basic litigation process in the federal and state court systems is similar. Nevertheless, many differences between the two systems do exist. Time requirements are often not the same, the format of documents may vary and, most importantly, a different set of laws control. In spite of the differences, the job of the attorney and the paralegal in the litigation process remains the same. Cases of Limited Jurisdiction Lawsuits where the plaintiff requests less than $25,000 in damages are governed by special code provisions known as Economic Litigation for Limited Civil Cases (found in sections of the California Code of Civil Procedure). These rules are intended to simplify litigation procedures in small cases. Although these sections do limit discovery they do not substantially alter the litigation process. DIFFERENT TYPES OF LAWSUITS Different types of civil lawsuits exist in California just as they do in all jurisdictions. Some of these differences result in important changes in the litigation process, especially in family law cases, unlawful detainer (eviction actions), and cases where the plaintiff is asking for less than $25,000. Family Law Cases Family law cases, although civil in nature, are governed by special rules found in the Family Code. Although the general litigation process is similar, special forms must be used for pleadings. Unlawful Detainer Actions Unlawful detainer actions, while regulated by the general rules of civil litigation, have much shorter time requirements for the various aspects of litigation. Complex Civil Litigation Complex civil cases often present difficult problems for the court. Recently, pilot programs in several counties have been created to deal with these cases effectively, by providing the judges with special training and resources. A complex civil case is defined by California Rule of Court, Rule 1800 as an action that requires exceptional judicial management to avoid placing unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and promote effective decision-making by the court, the parties, and counsel. These include such cases as antitrust, securities claims, environmental and mass torts, and class actions. ALTERNATIVES AND LIMITATIONS TO LITIGATION In California alternatives and limitations to the litigation process are growing in popularity. Judicial arbitration, a special type of nonbinding arbitration, has been in effect for many years. Judicial arbitration is part of the litigation 1

4 process. The California Code of Civil Procedure (referred to as CCP) provides that in superior courts having ten or more judges (or eighteen judges, if the county has no municipal court), cases where the damages do not exceed $50,000 can be ordered to a nonbinding arbitration hearing. Judicial arbitration is optional in other courts. If any party does not accept the award, then the case goes to trial. A party who does not agree with an arbitration award must act promptly to reject it, however. A party rejects an arbitration award by filing a request for trial de novo with the court in which the action is pending within thirty days. (See CCP et seq.) The California courts have been encouraged to develop other methods of alternative dispute resolution (ADR), in particular, mediation. CCP sets up a mediation pilot project in Los Angeles county and in any other county choosing to participate. Rules 32 and 32.5 of the Appendix to the California Rules of Court also encourages establishment of ADR procedures. These rules also require the court to provide the parties with information about ADR. Within the state, several ADR providers have been established. These providers consist of retired judges and experienced attorneys who offer their services as arbitrators, mediators, discovery referees, and private judges. Along with the encouragement of ADR, the California legislature had also enacted laws that limit the litigation process, especially in the area of medical malpractice. For example, for medical malpractice cases various statutes limit the amount of noneconomic damages (usually damages for pain and suffering) that can be recovered, limit the amount of attorney fees that can be charged, and limit the request for punitive damages. SOURCES OF LAW The law of California civil litigation is found in the California Constitution, California cases, California codes (in particular, the California Code of Civil Procedure), the California Rules of Court and various local rules of court. Most courts have posted their local rules of court on the Internet. An index to local rules of state and federal courts is found at A second directory of local rules of court can be found at (Although this is a fee-based site, users can access some services free, including the directory to local rules of court.) Local rules of court can also usually be found on any court s homepage. A directory of some state court homepages (trial, appellate, and Supreme Courts) can be found at numerous sites including: Numerous secondary sources exist for litigation practice in the California courts. Several works are published by the West Group. Check their website for a complete listing: store.westgroup.com. A second popular collection of practice books are those published by Continuing Education of the Bar (CEB). Numerous pleading forms are also found in the California Forms of Pleading and Practice published by Matthew Bender. Professional Organizations Many counties in California have paralegal associations. Many of these belong to the California Alliance of Paralegal Associations (CAPA). Their website is This site links to many local associations. CHAPTER 1 ADDENDA THE JUDICIAL COUNCIL AND CALIFORNIA CIVIL LITIGATION The Judicial Council in California is a group of judges, attorneys, and legislative representatives. One of the important functions of this group is to adopt rules for practice and procedures in the California courts. The Judicial Council has also adopted and approved various standard legal forms to be used in the courts. Some of the Judicial Council forms are mandatory, while others are optional. Forms that are mandatory are adopted, while optional forms are approved. These words appear at the bottom of each Judicial Council form. Specific Judicial Council forms will be referred to in subsequent chapters. The Judicial Council website can be found at THE TRIAL DELAY REDUCTION ACT In an effort to reduce the delay in resolving civil cases, in 1986 the California legislature enacted the Trial Court Delay Reduction Act, more commonly referred to as fast track. Generally, fast track requires closer judicial supervision of cases, and results in many of the time limits being shortened. At first this was a pilot project and was adopted only in selected counties. It is now in effect throughout the state. Fast track rules require parties to act promptly in serving and responding to pleadings and severely limit the right of attorneys to grant extensions or continuances to one another. Fast track procedures are found in the California Government Code et seq., California Rules of Court, Rules and various local rules of court. The rules are sometimes referred to as Differential Case Management Rules. The California Government Code sets certain minimum time limits that must be allowed for serving and responding to pleadings, but within those limits, each county is allowed to proscribe time requirements within the county. As a California litigation paralegal, you must be aware of any local rules regarding fast track. Important attention must be paid to time limits. 2

5 CHAPTER 2 THE COURTS AND JURISDICTION KEY POINTS The California court system is patterned after the federal court system. Most California trial courts are known as superior court. Smaller civil cases (under $25,000) are referred to as limited civil cases. Bookmark these websites, as they contain useful information: California Court Information Directory to California Courts UNITED STATES DISTRICT COURTS California is divided into four districts for the federal trial courts: District Location Website Northern District San Francisco Central Los Angeles District Eastern District Sacramento Southern District San Diego UNITED STATES COURTS OF APPEALS California is in the Ninth Circuit. The court is located in San Francisco. Its website is STATE COURT SYSTEMS The California state court structure is patterned after the federal system and contains trial courts, courts of appeal and one state supreme court. Trial Courts Until June 1998, the California court system consisted of two different types of trial courts, superior courts and municipal courts. In actions for money damages (actions at law), the superior court had jurisdiction to hear cases where the amount demanded, exclusive of interest and costs, exceeded $25,000. The equitable jurisdiction of the superior court extended to all cases except those in which equitable jurisdiction had been specifically conferred upon the municipal court. The municipal courts had jurisdiction over actions at law where the amount demanded was $25,000 or less and in certain specified equitable cases. Trial Court Unification In response to legislative action and voter approval, after June 1998, each county was given the option of unifying its superior and municipal courts into one court system. The unified courts would all be superior courts. To date, most counties in the state have unified. In the few counties that have not voted to unify, the established superior/municipal court system remains. The majority of counties, however, have seen considerable change. All trial courts are superior courts and all judges are superior court judges. In spite of the unification, the courts still recognize the differences between cases that were at one time in the jurisdiction of municipal courts and those that were within the jurisdiction of superior courts. Cases (both cases at law and cases in equity) that previously would have been filed in municipal court are now referred to as limited civil cases. Sections of the Code of Civil Procedure control. The major differences in these cases are a reduced filing fee and more limited discovery. A complete list of all cases designated as limited civil cases is found in sections 85, 86, and The following is a list of some of the more common equitable cases now referred to as limited civil cases: 1. Actions to dissolve a partnership where the total assets of the business do not exceed $25,000; 2. Actions of interpleader where the mount of money or the value of the property involved does not exceed $25,000 (see Chapter 5 for discussion of interpleader); 3. Actions to cancel or rescind a contract when this relief is sought in connection with an action to recover money or property not exceeding $25,000 in value; 4. Unlawful detainer (eviction) actions where the total damage claimed is $25,000 or less; 5. Actions to enforce or foreclose liens on personal property where the amount of the lien is $25,000 or less; 6. Actions to enforce mechanics liens (liens against real property for work done on the property) where the amount of the lien is $25,000 or less; 7. Actions for declaratory relief when brought as a crosscomplaint in an action otherwise within the jurisdiction of the municipal court; 8. Actions for temporary restraining orders, preliminary injunctions, accountings or appointment of receivers where necessary in an action pending in the municipal court. 3

6 In addition to original jurisdiction, the superior court also maintains an appellate division that hears appeals from either municipal court cases or cases of limited civil jurisdiction. In exercising appellate jurisdiction, three superior court judges review a case as a panel, in the same way that any court of appeals functions. that primarily exercises appellate jurisdiction. Also like the United States Supreme Court, the exercise of that jurisdiction is usually discretionary. To request a hearing in a civil case before the state Supreme Court, a party files a petition for review rather than a petition for a writ of certiorari (Rule 28, Calif. Rules of Court). Small Claims Court A small claims division exists in all municipal courts and in all superior courts in counties not having municipal courts. In general, small claims courts have jurisdiction to hear cases where the amount in controversy is less than $5000 (CCP ). In most cases, parties in small claims court proceedings are not allowed to be represented by attorneys. As a result, the procedures are kept fairly simple and only the defendant is allowed to appeal. Such an appeal is filed in the superior court and results in a retrial of the case. Parties are allowed to be represented by attorneys in a small claims court appeal. JURISDICTION Subject Matter Jurisdiction In counties where trial courts have unified, the superior court has subject jurisdiction over all civil cases not within the exclusive jurisdiction of federal court. However, smaller cases are identified as limited civil cases. In the few counties where trial court unification has not occurred, the superior court has subject matter jurisdiction over civil cases where the demand exceeds $25,000 and over equitable cases where the code has not specifically conferred jurisdiction in the municipal court. Courts of Appeal California is divided into six appellate districts. The larger districts are further divided into divisions. Like their federal counterpart, these courts are primarily courts of review. They hear appeals from cases originally tried in the superior court. Cases are heard by a three-judge panel and the majority decision prevails. The following is a list of the counties within each of the six districts: First Appellate San Francisco, Marin, Sonoma, Napa, District Solano, Lake, Mendocino, Humboldt, Del Norte, Contra Costa, Alameda, and San Mateo Second Appellate San Luis Obispo, Santa Barbara, District Ventura, and Los Angeles Third Appellate Siskiyou, Modoc, Trinity, Shasta, District Lassen, Tehama, Plumas, Colusa, Glenn, Butte, Sierra, Sutter, Yuba, Nevada, Yolo, Placer, Sacramento, El Dorado, San Joaquin, Amador, Calaveras, Alpine, and Mono Fourth Appellate Inyo, San Bernadino, Riverside, District Orange, San Diego, and Imperial Fifth Appellate Stanislaus, Tuolumne, Merced, District Mariposa, Madera, Fresno, Kings, Tulare, and Kern Sixth Appellate Santa Clara, Santa Cruz, Monterey, District and San Benito State Supreme Court California has one state Supreme Court consisting of seven justices. Like the United States Supreme Court, it is a court Challenging Subject Matter Jurisdiction Subject matter jurisdiction in California is often challenged by filing a special pleading known as a demurrer in response to the complaint (CCP ). Lack of subject matter jurisdiction can also be raised in the answer as an affirmative defense. Personal Jurisdiction over Defendant Personal jurisdiction over the defendant in an action is controlled by CCP : A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States. Thus, if a defendant is domiciled within the state or has sufficient contacts with the state to satisfy constitutional due process requirements, the state courts can exercise personal jurisdiction over that defendant. Whether a defendant has sufficient contacts with the state is a question of fact to be determined in each case. Case law is important in this determination. Notice The exercise of personal jurisdiction over a defendant is dependent on proper notice or service of process. In California, service of process is described in sections of the Code of Civil Procedure. Service of process is discussed in more detail in Chapter 5. Challenging Personal Jurisdiction In California, personal jurisdiction must be challenged by a special appearance, that is an appearance made for the sole purpose of challenging the jurisdiction. A motion to 4

7 quash service of the summons is the most common way of doing this (CCP ). A defendant who makes a general appearance by filing an answer or a demurrer waives any defect in the exercise of personal jurisdiction by the court and thereby confers personal jurisdiction on the court. VENUE State Court Venue Venue in state court actions is generally covered in sections of the Code of Civil Procedure. Any county or judicial district in which any of the defendants reside at the commencement of the action is usually a place of proper venue. If the action is for damages for personal injury or death, the action can also be maintained in the county in which the injury occurred. Contract disputes can usually be maintained in the county where the contract is to be performed, in the county in which the contract was entered into, or in the county in which the defendant resides at the commencement of the action (CCP 395). If the action is one regarding title to real property, recovery of real property, or foreclosure of a lien on real property, the county where the property is located is usually the county of proper venue (CCP 392). Changing Venue A motion for change of venue in a California action is governed by sections 396b and 397 of the Code of Civil Procedure. The grounds for such a motion in general civil cases are: 1 The court designated in the complaint is not a proper court; 2. An impartial jury cannot be had in the county in which the action was originally filed; 3. Convenience of witnesses or interests of justice; 4. No judge of the court is qualified to hear the case. If the motion is granted, the case will be transferred to another court of proper jurisdiction (CCP 398). The code also requires that certain costs and fees be paid in connection with the transfer (CCP 396b and 399). 5

8 PART II INITIATING LITIGATION CHAPTER 3 PRELIMINARY CONSIDERATIONS KEY POINTS Statutes of limitations are found in CCP Claim statutes exist when suing public agencies and estates. Rules of Professional Conduct establish ethical standards for California attorneys. Bookmark this important site: California State Bar Assoc. DETERMINING THE EXISTENCE OF A CAUSE OF ACTION California requires that the complaint contain facts which support each element of a cause of action. Identifying the various causes of action which might apply in a case is therefore critical. Special rules also exist for civil actions based on sexual abuse of minors (CCP 340.1). Suit must be filed within eight years of the date plaintiff attains majority or within three years of the date plaintiff discovers or should have discovered that a psychological injury was the result of abuse, whichever time is later. TIME LIMITATIONS Statute of Limitations Statutes of limitations for various actions in California are found in the Code of Civil Procedure, sections Some of the more common time limitations for commencing a civil action are: One year Actions for personal injuries or death resulting from wrongful act or neglect of another; actions for libel, slander, assault, battery, or false imprisonment Two years Actions based on an oral contract Four years Actions based on a written contract Additionally, California has date of discovery type statutes for professional malpractice and fraud: Medical Malpractice Three years from date of injury or one year from date of discovery, whichever is first. Legal Malpractice Four years from date of wrongdoing, or one year from date of discovery, whichever occurs first. Asbestos Exposure One year from date of discovery of disability or death, or one year after suffering disability or death, whichever is later. Fraud Three years from date of discovery. Tolling the Statute of Limitations Generally, statutes of limitation are tolled when a person is a minor or is incompetent. However, this is not the case if the action is against a public entity or employee for a case in which a claim must be made. (CCP 352) Special rules also apply to malpractice cases. Filing deadlines are tolled in medical or legal malpractice cases under a number of circumstances, including concealment of the wrongdoing or fraud. Medical malpractice also has special rules relating to minors (CCP 352): Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Claim Statutes Public Agencies The procedures for filing a claim and a lawsuit against a state or local public agency in California are found in the Government Code starting with section 900. Prior to filing certain types of lawsuits, including those for money damages, a written claim must be submitted to the public agency (Govt. Code 945.4). A claim relating to a cause of action for death or injury to person or property must be presented to the board or governing body of the public agency within six months of the date of injury (Govt. Code 911.2). Other claims must be presented within one year of the accrual of the cause of action. Government Code Section 910 outlines the requirements of the claim. It must contain the following information: 6

9 1. Name and address of the claimant; 2. Address to which the person presenting the claim desires notices to be sent; 3. Date, place and other circumstances of the occurrence or transaction that gave rise to the claim; 4. General description of the indebtedness, obligation, injury or damage sustained; 5. Name of any public employee who caused the injury, if known; 6. Amount claimed if it totals less than $10,000; if more than $10,000, then the claim should indicate whether it would be a limited civil case. Many agencies have their own claim form which is provided on request. Once the claim has been submitted, the public agency has forty-five days to act on the claim (Govt. Code 911.6). If the agency denies the claim and gives written notice of this to the claimant, the claimant has six months to file a lawsuit (Govt. Code 945.6). If the agency fails to give notice of its action within forty-five days, the claimant can treat the claim as being denied and file a lawsuit. In such a case, however, the six-month time limit does not apply and the plaintiff has two years from the accrual of the cause of action to file a lawsuit (Govt. Code 925.6). No lawsuit can be filed until the forty-five days has lapsed. These time limits replace the normal statute of limitations for any case. When a lawsuit is filed, compliance with this section should be alleged. It is common to attach a copy of the letter denying the claim to the complaint itself. Should a plaintiff fail to submit a timely claim, section of the Government Code allows the claimant to petition the public agency and request that he or she be allowed to file a late claim. This application must be filed within one year of the date the cause of action arises. The board should grant this petition if the person injured was a minor or incapacitated before the expiration of the time in which to file a claim. The petition should likewise be granted if the failure to file the claim was due to mistake, inadvertence, surprise, or excusable neglect (Govt. Code 911.6). If the petition is granted, a claim is filed and the case proceeds as if the claim had been filed in a timely fashion. If the petition to file a late claim is denied, then the claimant must file a petition with the court asking that he or she be allowed to file a complaint even though no claim was ever filed (Govt. Code 946.6). If the court makes an order allowing the complaint to be filed, it must be done within thirty days. All claims and notices can be served personally or sent by mail (Govt. Code ) Claims Against a Decedent Section 9351 of the California Probate Code provides that an action may not be commenced against a decedent s personal representative unless a claim is first filed and is rejected. The claim procedures are found in sections of the California Probate Code. A form for making the claim has been approved by the Judicial Council. A claim is required to be presented to the representative within four months of date the representative was appointed or within thirty days after notice to creditors has been given, which is later. Procedures for filing late claims are found in Probate Code section If a claim is rejected, the claimant has three months after that time to file a lawsuit. The code further provides that should a defendant in a lawsuit die during the pendency of the action, the lawsuit must be suspended and a claim presented to the representative. If the claim is rejected, the action can proceed in court (Prob. Code 9370). Some circumstances do exist in which claim requirements do not exist (Prob. Code ). For example, claim requirements against a decedent do not apply if the decedent was insured for the claim and the amount of the claim does not exceed the policy limits (Prob. Code 9390). Actions Against Health Care Professionals Prior to filing a lawsuit against a health care professional for negligence (medical malpractice), plaintiffs are required to give the professional ninety days written notice of their intention to commence action. The notice should include a statement describing the legal basis of the claim, and the type of loss sustained including a description of the injuries. A copy of the notice should also be sent to the Medical Board of California or Board of Pediatric Medicine, as applicable. No action on this notice need be taken by the health care professional and failure to give this notice does not affect the lawsuit. However, if the plaintiff is represented by an attorney, that attorney is subjected to disciplinary proceedings by the state bar for failing to comply (CCP 364, 364.1, and 365). ETHICAL CONSIDERATIONS IN ACCEPTING A CASE The conduct of attorneys in California is governed by the Rules of Professional Conduct adopted by the board of governors of the state bar and approved by the California Supreme Court. The California state bar maintains a website at The California Rules of Professional Conduct, as well as ethics opinions of the state bar, are located on this site. Additional rules regarding ethical considerations are found in the California Business and Professions Code (Sections ). ETHICAL CONSIDERATIONS AFTER ACCEPTING A CASE Attorney Fees In most cases, as long as the attorney fee is not unconscionable, the determination of the attorney fee is negotiable. In some instances, however, attorney fees have been statutorily limited in California, for example, medical malpractice cases. Section 6146 of the Business and Professions Code limits the fee to a certain percentage, the amount of which depends on the amount of judgment or settlement. 7

10 Contracts for attorney fees for services to a minor should be approved by a court (Family Code 6602). Sample attorney fee agreements can be purchased from the State Bar of California for a nominal fee. Written Fee Agreements Sections of the California Business and Professions Code require that most fee agreements be in writing. Although there are some exceptions, contingent fee agreements and other agreements where the fee is expected to exceed $1,000 must be in writing. Furthermore the code details what must be included in those agreements. A contingent fee agreement must contain the following statements: 1. Statement of the contingency fee rate; 2. How disbursements and costs will affect the fee and the client s recovery; 3. Statement as to what extent, if any, plaintiff could be required to pay the attorney for other related matters; 4. Statement that, except for medical malpractice fees, the fee is negotiable and not set by law, and if it is a medical malpractice case, a statement that the statutory rates are maximum amounts and lower amounts can be negotiated. The plaintiff in the case is entitled to a signed copy of the agreement. If the agreement is for an hourly rate or fixed fee, the following information must appear: 1. Hourly rate and other rates, fees and charges applicable to the case; 2. General nature of the legal services to be provided; 3. Respective responsibilities of attorney and client. Bills Under section 6148 of the Business and Professions Code, all bills rendered by an attorney to a client must be very specific. They must clearly state the basis for the bill, and identify the costs and expenses incurred. Also, upon request of the client, the attorney must submit a written bill within ten days of the client s request (unless a bill had been sent within the last thirty-one days). Fee-sharing Fee-sharing with nonattorneys is prohibited in California under Rule of the Rules of Professional Conduct. Furthermore, fee-sharing arrangements (including referral fees) among attorneys is regulated by Rule In general, this rule prohibits attorneys who are not partners or associates, from sharing fees unless the client has consented in writing and unless the total fee charged is not increased by reason of the fee-sharing. Fee Disputes Should a fee dispute arise between a client and an attorney, prior to any litigation, the attorney must advise the client that the client has the right to have the dispute arbitrated (Bus. & Prof. Code 6200 et seq.). 8

11 CHAPTER 4 INVESTIGATION AND EVIDENCE Interview techniques do not vary from one jurisdiction to another. Corporate agents for service can be located through the secretary of state. Business operating under fictitious names must file statements with the county clerk. The rules of evidence for California are found in the California Evidence Code. Bookmark these important websites: California Secretary of State Directories of Experts KEY POINTS LOCATING FACT WITNESSES OR ELUSIVE DEFENDANTS Partnerships and Corporations In California, corporations and limited partnerships are required to provide the secretary of state with the name and address of an agent for service of process. This information is available to anyone and can be obtained from the secretary of state s office in Sacramento (Calif. Corp. Code 202, 1502, 15621). General partnerships are not required to provide this information. General partnerships are not required to file any information with the secretary of state or the county clerk unless they operate under a fictitious name. However, a partnership may file a statement of partnership in the secretary of state s office. This document will list the names of the partners (Calif. Corp. Code 16105). Access to many of the records kept by the secretary of state is available through the Internet at Fictitious Name Statements When individuals, partners or corporations operate their businesses under fictitious names they are required to file a fictitious name statement with the clerk in the county in which the business operates (although many fail to do so). This statement will provide the name and address of the principals of the business (Calif. Business and Professions Code et seq.). TECHNIQUES FOR INTERVIEWING FACT WITNESSES In general techniques for interviewing fact witnesses do not vary from one jurisdiction to another. However, California paralegals must be careful when tape recording statements. Tape Recording Statements California Penal Code section 632 makes it a crime in California to tape record a conversation that is intended to be confidential unless all parties agree to the recording. EVIDENCE The basic rules of evidence for practice in California state courts are found in the California Evidence Code and are similar in content to the federal rules. One notable exception is the Best Evidence Rule which as been repealed in California and replaced with the Secondary Evidence Rule. Unless an injustice or unfairness would result, copies of documents are admissible to prove the content of the document. On the other hand, use of oral testimony regarding the content of documents is limited. Figure 4-1 is a list of certain relevant provisions of the California Evidence Code. EXPERT WITNESSES California expert witnesses are easy to locate on the Internet. The following sites are especially helpful: 9

12 Figure 4-1 Relevant Provisions of the California Evidence Code Evidence Code Topic 210 Defines relevance as evidence that tends to prove or disprove a disputed fact. 240 Explains circumstances under which a witness is considered to be unavailable and is similar to federal rule. 250 Defines the term writing, which includes any handwriting, typewriting, printing, photostatting, photographing, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof. 255 Defines the term original. 352 Allows court to exclude relevant evidence if probative value is outweighed by undue consumption of time or undue prejudice Explains the application of Judicial Notice (a judge s finding that a fact is true without either party being required to prove it) Deals with burden of proof, presumptions, and inferences Deals with competency of witnesses, expert witnesses, and examination of witnesses, generally allows leading questions on cross-examination ( 767) and allows party to call adverse parties as witnesses and conduct direct examination as if it were cross-examination ( 776) Deals with credibility of witnesses; generally disallows evidence of character other than evidence of honesty or veracity or their opposites, but does allow evidence of felony convictions under some circumstances. Limits evidence of sexual conduct of plaintiff in a sexual harassment, sexual assault, or sexual battery case Deals with opinion testimony of nonexperts and experts; generally allows experts to give opinion if it is within the area of their expertise and limits areas in which nonexperts may give opinion Deals with the various evidentiary privileges (i.e., doctor/patient, attorney/client, etc.) and includes right not to disclose trade secrets ( ) Deals with evidence of character, habit, or custom; generally prohibits use of character to prove conduct on a specific occasion, but does allow admissibility of habit or custom In civil actions for sexual harassment, assault, or battery, generally prohibits opinion evidence, reputation evidence, or evidence of specific instances of plaintiff s sexual conduct Anything said or any document prepared for use in a mediation proceeding is inadmissible and not subject to discovery Prohibits evidence of subsequent remedial actions (i.e. repairs) in negligence cases Prohibits evidence dealing with offers to compromise Evidence of liability insurance is not admissible Deals with special rules regarding health care practitioners and provides that hospital morbidity or mortality studies are subject to discovery but are not admissible at trial; also provides that proceedings and records of certain health care professional review committees are not subject to discovery Deals with the hearsay rule and the various exceptions; similar to federal rules Deals with authentication of written documents and is similar to federal rules Sections dealing with the best evidence rule have been repealed Adopts a Secondary Evidence Rule to replace the best evidence rule; allows copies of writings to be used unless a genuine dispute regarding material terms exists and justice requires original or admission of copy would be unfair; limits use of oral testimony to prove content of writing Deals with production of business records; sets out guidelines for admissibility of originals and copies and sets witness and copying fees. 10

13 CHAPTER 5 THE INITIAL PLEADINGS KEY POINTS Complaints in state court must include a statement of facts that constitute a cause of action. The Judicial Council has approved complaint forms for optional use in some cases. Service of process is regulated by CCP Amendments to complaints are liberally allowed. Review these bookmarked sites before drafting pleadings: California Rules of Court Judicial Council Forms INITIAL PLEADINGS Pleadings in California Federal Courts Before drafting any pleadings for the district courts in California, review the local rules of the district court. Pursuant to those rules, the general format for papers filed in all district courts in California is similar to the format requirements in state courts. Pleadings in General State Courts The content and format of the various pleadings in California are governed by the Code of Civil Procedure (hereinafter referred to as CCP), particularly sections , and Rules 201 (for superior court) and 501 (for municipal court) of the California Rules of Court (hereinafter referred to as Rules). Local rules of court and case law also control. Permissible pleadings in California include the complaint, demurrer, answer, and cross-complaint (CCP ). The physical appearance of all papers filed in California courts is described in Rules 201 and 501 of the Rules of Court. These rules require that all pleadings (as well as other papers filed in court) be typewritten or printed on inch paper. Only one side of the paper should be used and the lines one and one-half or double-spaced. The lines are also to be numbered consecutively. Paper meeting these requirements is usually referred to as pleading paper. Pages in the pleadings should be numbered consecutively at the bottom and should be firmly bound together at the top. Below the page number, all papers must contain a footer describing the nature of the document (see Figure 5-1). State Rules also require that two holes be punched at the top of the paper and that recycled paper be used. In addition to the traditional pleadings prepared by lawyers, for some types of actions, alternative pleading forms have been approved by the Judicial Council. These include forms for complaints, cross-complaints, and answers in actions based on various tort, contract, and unlawful detainer actions. The use of the pleading forms is optional. The Complaint A complaint filed in a California court is usually required to state facts that support each element of a cause of action. According to CCP , these facts are to be stated in ordinary and concise language. A complaint must also contain a demand for judgment for the relief claimed. If the relief claimed is money damages, the amount requested should be stated in the complaint unless the action is for damages for personal injury or wrongful death filed in the superior court. In such a case, the amount requested is not specified. However, the body of the complaint as well as the prayer should state that the amount requested is in excess of the minimum jurisdictional limit of the court (CCP ). PARTIES TO THE LAWSUIT Real Parties in Interest Sections of the Code of Civil Procedure deal with real parties in interest in California. These sections are similar to Rule 17a of the Federal Rules of Civil Procedure. Minors and Incompetents A minor (anyone under age eighteen) or an incompetent person must usually appear in a lawsuit either by a general guardian, a conservator or a guardian ad litem (CCP 372). The procedure for the appointment of a guardian ad litem is also set forth in the code (CCP 373). If the petition for the guardian ad litem is made for a minor and that minor is fourteen years or older, the minor must sign the petition. If the child is under fourteen years, the petition is signed by a relative or friend. If the plaintiff in the action is a minor, the appointment of the guardian ad litem must be made before the summons is issued. 11

14 Figure 5-1 Complaint for Damages Timothy Lion Attorney at Law State Bar No North Second St. San Jose, California, (408) Attorney for Plaintiff IN THE SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA REBECCA CALLEY, ) ) No. Plaintiff ) ) COMPLAINT FOR DAMAGES FOR vs. ) PERSONAL INJURIES AND ) PROPERTY DAMAGE DAVID DORIAN, MERCHANT S ) FURNITURE CO., a ) corporation, and DOES ONE ) through FIVE ) ) Defendants. ) Plaintiff alleges against defendants and each of them as follows: 1. The true names and capacities of all defendants named herein as Does are unknown to plaintiff, and are sued by such fictitious names pursuant to section 474 of the California Code of Civil Procedure. 2. Plaintiff is informed and believes and thereupon alleges that defendant Merchant s Furniture Co. was and is a corporation organized and existing under the laws of the State of California. 3. Plaintiff is informed and believes and thereupon alleges that defendants and each of them are residents of Santa Clara County, State of California. 4. Plaintiff is informed and believes and thereupon alleges that at all times herein mentioned each defendant was the agent and employee of each and every other defendant and at all times was acting within the course and scope of said agency and employment. 1 Complaint for Damages continued 12

15 Figure 5-1 Complaint for Damages (continued) At all times mentioned herein, defendants Merchant s Furniture Co. and Does One through Five were and now are, the owner of a Toyota truck, California license 123 ABC. At all times mentioned herein, defendant David Dorion was the driver and operator of said vehicle and was operating said vehicle with the knowledge and consent of each and every other defendant. 6. At all times mentioned herein, Santa Clara Street is a public road located in the City of San Jose, County of Santa Clara. 7. On or about May 1, 2000, plaintiff was operating a motor vehicle on Santa Clara Street in a general northerly direction. At that time and place, defendants, and each of them, negligently, carelessly and recklessly entrusted, managed, maintained, and drove the above-described motor vehicle of defendant on Santa Clara Street also in a general northerly direction so as to proximately cause it to collide with plaintiff s automobile and to proximately cause the injuries and damages described below. 8. As a direct and proximate cause of defendant s negligence and the resulting collision, plaintiff was injured in her health, strength and activity, sustaining injury to her body, consisting of, but not limited to, severe injuries, bruises, contusions, strain to all of the muscles of her body, and shock and injury to her nervous system and person, all of which injuries have caused, and continue to cause plaintiff great physical, mental and nervous pain and suffering, all to plaintiff s general damage in an amount in excess of $25, As a further direct and proximate result of the negligence of defendant, plaintiff was required to, and did employ physicians and surgeons for medical examination and treatment and incurred medical and hospital expenses. Plaintiff will be obliged to incur further medical and hospital expenses in an amount presently unknown. 10. As a further direct and proximate result of the negligence of defendants, plaintiff was prevented and continues to be prevented from attending to her usual occupation and has sustained and continues to sustain a loss of earnings and earning power. 11. As a further and direct and proximate result of the negligence of defendants, plaintiff has sustained damage to her property and has been denied the use and enjoyment of her automobile in an amount not as yet ascertained Complaint for Damages continued 13

16 Figure 5-1 Complaint for Damages (continued) WHEREFORE, plaintiff prays for judgment against defendants and each of them as follows: 1. General damages in an amount in excess of $25, Special damages according to proof; 3. Costs of suit; 4. Such other and further relief as the court deems just and proper. 6 7 Dated: August 1, STATE OF CALIFORNIA, COUNTY OF SANTA CLARA VERIFICATION By TIMOTHY LION Attorney for Plaintiff I have read the foregoing Complaint for Damages and know its contents. I am a party to this action. The matters stated in it are true of my own knowledge except as to those matters which are stated on information and belief, and as to those matters I believe them to be true. Executed on August 1, 2000, at San Jose, California. I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct. Rebecca Calley Complaint for Damages 14

17 Partnerships and Unincorporated Associations In California, a partnership or other unincorporated association can sue or be sued in the name of the business or in the name of the individual members. If the individual members are not named and served, however, then any judgment can only be enforced against business assets. If they are named and served, they are personally liable (CCP 369.5; see also Calif. Corp. Code et seq.). Special Problems with Parties If a party does business under a fictitious name in California, that party is required to file a fictitious name statement with the county clerk. The failure of a plaintiff in a lawsuit to do so can be raised as a defense in an action based on contract. It does not affect lawsuits for other types of matters. However, this failure can be cured by the party filing a fictitious name statement at any time, even after a complaint has been filed. If a plaintiff in a lawsuit based on contract does business under a fictitious name, compliance with the fictitious name laws should be alleged in the complaint to avoid problems. Fictitious Defendants The use of fictitiously named defendants, or Does, is authorized by CCP 474 and is common in California actions. There is no limit to the number of Does who may be joined and the number often depends on the complexity of the case and the number of named defendants. The term Doe can be used to refer to an individual, partnership, corporation or other business form. It is not necessary to specify the capacity. However, it is necessary to state a cause of action against all fictitiously named defendants. Joinder of Multiple Parties Permissive joinder of plaintiffs in a California action is controlled by CCP 378 and permissive joinder of defendants by CCP 379. Compulsory joinder of plaintiffs and defendants is controlled by CCP 389. The rules are similar to the federal rules of permissive and compulsory joinder. Interpleader Interpleader in California is governed by CCP 386. PLEADING THE CLAIM OR CAUSE OF ACTION California is primarily known as a code pleading state. In most cases, a complaint must contain a clear and concise statement of facts that support the elements of a cause of action. Since each element of the cause of action must be supported by factual allegations, a claim for negligence filed in a state court would probably be more detailed and specific than that found in the text. A typical complaint for personal injuries based on the defendant s negligence in operating a motor vehicle is found in Figure 5-1 at the end of this chapter. Common Counts An exception to the method of fact pleading exists for types of actions known as common counts. Common counts, which stem from early English pleading, refer to actions where the plaintiff requests money damages arising from some very generally stated contractual obligation. The contract may be oral or written, express or implied. In a common count, the plaintiff does not plead ultimate facts, but rather legal conclusions. The key element of a claim based on a common count is that the defendant is indebted to the plaintiff for some reason. The reason is very generally stated (.e.g., services rendered, goods delivered, money loaned). It is not necessary to plead the details of the contract or other facts necessary to support a cause of action for breach of contract, restitution, or other contractual relief. The statute of limitations for a common count, however, does depend on whether the underlying contract was written or oral. In the case of a written contract, the statute of limitations is four years. In the case of an oral contract, the time is two years. Common counts are often used as an alternative way of pleading contractual obligation. A common count may form the basis of the entire complaint or it may constitute one cause of action in a complaint stating multiple causes of action. A Judicial Council form exists for common counts. DEMAND FOR RELIEF Money Damages The general measure of money damages is set forth in sections of the California Civil Code, which provide that in most cases damages are to be compensatory, rather than punitive, in nature. PLEADING JURISDICTION AND VENUE Unlike complaints filed in federal court, a complaint filed in a state court action need not contain an express paragraph addressing jurisdiction or venue. However, proper jurisdiction and venue of the court should be evident from the various allegations that do appear. Limitations on Damages If the action is one for medical malpractice, section of the Civil Code limits the amount of money that may be awarded for noneconomic losses (sometimes referred to as general damages). Noneconomic damages include such items as pain, suffering, inconvenience, physical impairment, and disfigurement. A plaintiff may not recover more than $250,000 for such losses. The amount recoverable for economic or pecuniary loss (actual expenses) is not limited. Damages are also limited by statute in California where a plaintiff 15

18 committed a felony that somehow contributed to the injuries forming the basis of the lawsuit or where plaintiff is suing for damages, resulted from an automobile accident and plaintiff was either drunk at the time or uninsured (Civ. Code and ). Personal Injury Cases Superior Court As mentioned previously, in an action for compensatory or punitive damages for personal injuries or wrongful death, the specific amount requested is not expressly stated in a complaint filed in superior court. However, the amount claimed will probably have to be furnished at a later date. If the defendant wants to know what damages are being claimed, the defendant files and serves a request for statement of damages. The plaintiff must respond to this request within fifteen days with a written statement describing the nature and extent of the damages that are claimed (CCP ). If the defendant does not request a statement of damages, the plaintiff must nevertheless file one sixty days prior to trial. In the event that the defendant defaults, a statement of damages must be filed before the default is entered. Punitive Damages While compensatory damages are allowed in all cases for money damages, punitive damages are only allowed under special circumstances. Generally section 3294 of the Civil Code provides the basis for an award of punitive damages. Punitive damages are allowed in noncontract cases where the defendant is guilty of oppression, fraud, or malice. Attorney Fees Attorney fees are allowed when specifically provided for by statute, or when the parties have a contract that contains a provision allowing attorney fees (Civil Code 1717). Attorney fees are usually claimed as an item of costs of suit after the matter has been tried. However, if a contract provides for attorney fees, that fact should be alleged in the complaint. Provisional Remedies Provisional remedies in California are covered primarily in CCP 527 et seq. The procedures in California, similar to those in the federal rules, allow for a temporary restraining order and a preliminary injunction. DRAFTING THE COMPLAINT Technical requirements for a complaint are found primarily in the California Rules of Court, Rules 201 for superior court; and 501 for municipal court and limited civil cases. The two rules are similar. A complaint must meet the general requirements for all papers presented to the court for filing. As mentioned above, this means the complaint is typewritten or printed on inch pleading paper. The format for the first page is also set forth (Rule 201c). Starting with line 1, to the left of the page, the name, California state bar number, office address, and telephone number of the attorney appears. Following the name and address is usually a statement showing whom the attorney represents. On or below line 8, the title of the court appears. Below the title of the court, the left of the center, appears the title of the case. To the right of and opposite the title is a space for the number of the case and the nature of the document. The page number must appear at the bottom of the page and below that, a footer describing the nature of the document (e.g., Complaint) (see Figure 5-1). In drafting a complaint for filing in a California court, other than for a common count, you must be careful to allege facts that support each element of the cause of action. Form books written for practice in the California courts should be consulted. A complaint in California may contain any number of causes of action, each of which should be separated and numbered (e.g., First Cause of Action, Second Cause of Action). After the causes of action have been stated, the prayer appears, followed by the date and signature of the attorney. Since the attorney s address and phone appeared on the first page, it does not follow the signature. Verification A verification is a statement under penalty of perjury that the contents of a document are true and correct. In California, a few types of complaints are required to be verified, such as quiet title actions and unlawful detainer actions. Even when a verification is not required, however, an attorney can always choose to verify it. The result is that generally the defendant must verify the answer and cannot use a general denial format for the answer (see Chapter 6). The verification is usually signed by the plaintiff rather than the attorney, although in some cases, the attorney is allowed to do so. If the party is absent from the county in which the attorney has his or her office or for some other reason is unable to sign the verification, the attorney is allowed to do so (CCP 446). Where the party to verify is a corporation, any officer may sign the verification. Review Figure 5-1 for an example of a verified complaint. Judicial Council Forms Judicial Council Forms have been developed and approved for the various actions based on tort, contract, and unlawful detainer disputes. The following forms are available: Complaint Personal Injury, Property Damage, Wrongful Death Cause of Action Motor Vehicle Cause of Action Premises Liability Cause of Action Products Liability Cause of Action General Negligence Cause of Action Intentional Tort Exemplary Damage Attachment 16

19 Complaint Contract Cause of Action Breach of Contract Cause of Action Fraud Cause of Action Common Counts Complaint Unlawful Detainer (Special forms also exist for family law matters.) The Judicial Council forms are organized somewhat differently from a standard complaint. The initial pages of the complaint forms contain standard, general allegations, including those relating to status, capacity, and venue. They also contain allegations regarding damages as well as the prayer. These initial pages are then followed by the specific causes of action. Of course, only those causes of action which apply to the facts are attached. See Figure 5-2. the attorney to set up a special account. An additional fee of $1 per page must also be paid. Any party who files or serves a faxed document represents that the original signed document is in his or her possession or control and must produce the original if it is demanded. Notwithstanding this, a signature produced by facsimile transmission is considered an original. THE SUMMONS The summons for a general civil case is a Judicial Council Form. See Figure 5-4. A separate form exists for unlawful detainer actions because the time to respond to the complaint is different (five days instead of the normal thirty). A separate summons was also adopted for joint debtor actions. Using the Forms The Judicial Council forms are generally used by filling in the blanks and checking the appropriate boxes. Sometimes, however, the forms do not provide sufficient space for the allegations needed. In such a case, the allegations are typed on a separate piece of paper and attached. In some cases, plaintiff may have various causes of action, some for which a Judicial Council form exists and others for which a form does not exist. In such a case, the plaintiff has two choices. The plaintiff can avoid using the forms and prepare the entire complaint with using any forms or, under Rule of Court 982.1, can attach a typed cause of action to the Judicial Council form. In such an event, each paragraph in the cause of action should be numbered and each paragraph number should be preceded with one or more identifying letters derived from the title of the cause of action. For example, the paragraphs for a cause of action for medical malpractice might be numbered MM-1, MM-2, etc. When multiple parties are involved in an action, normally the complaint would contain one set of initial pages, listing all parties in the caption and referring to all parties in the appropriate allegations. However, if the plaintiffs have separate causes of action, then separate cause of action forms should be attached. In some cases the same cause of action form, with different names inserted, may be used more than once. Several software programs that generate completed Judicial Council forms are now available. A civil cover sheet (a Judicial Council form) is required to be attached to the complaint. (See Figure 5-3) FILING THE COMPLAINT Fax filings are permitted by California law. The California Rules of Court, Rules set forth the procedures to be followed. Documents can be filed by fax either directly with a court (if local rules permit) or through a fax filing agency, which then physically transmits the document to the court and pays the applicable filing fee. If a paper is fared directly to the court, it must be accompanied by a Judicial Council Facsimile Filing Cover Sheet. Payment of filing fees can be by Visa or Mastercard or the court might allow SERVICE OF THE COMPLAINT The rules regarding service of process are found in CCP A summons may be served by any person who is at least eighteen years of age and not a party to the action. The documents served include a copy of the summons and a copy of the complaint. Local rules of court may require the other documents be served, for example, copies of the local rules regarding fast track. The methods of service upon a defendant located within the state include personal service, substituted service, service by mail, and publication. Personal Service Personal Service involves personally delivering a copy of the summons and complaint to the defendant. Service is deemed completed when the copies are delivered. (The time to respond to a complaint starts to run when service is deemed completed. See Chapter 6.) Substituted Service Substituted service can be used in lieu of personal service under certain conditions. If the person to be served is an individual and diligent attempts at personal service have been unsuccessfully made, substituted service can be effected. Substituted service involves leaving a copy of the summons and complaint at the person s residence with a competent member of the household (over age eighteen) or at the defendant s workplace with a person apparently in charge. In addition, a second copy of the summons and complaint must be mailed, first class postage prepaid, to the person to be served at the place where a copy of the summons and complaint were left. If the defendant is a corporation or unincorporated association or a public entity, substituted service can be used if service is made at the office of the defendant during normal working hours. Diligent attempts at personal service are not necessary. When substituted service is used, it is not deemed completed until ten days after mailing. 17

20 Figure 5-2 Judicial Council For Complaint SAMPLE continued 18