The Barristers/Young Attorneys Section and Litigation Section proudly present…

#2 TRIALS 101: CIVIL PRETRIAL CASE MANAGEMENT

Natasha Chee - Principal, Law Offices of Natasha S. Chee Mary Grace Guzman - Conflicts Counsel, Covington & Burling LLP

Jeff Thayer - Partner, Hawkins Parnell Thackston & Young LLP

Agenda 1. CASE INCEPTION: COMPLAINT AND ANSWER 2. WRITTEN DISCOVERY: PROPOUNDING AND RESPONDING 3. DEPOSITIONS: TAKING AND DEFENDING 4. DISPOSITIVE MOTIONS: FILING AND OPPOSING 5. EXPERT DISCOVERY 6. ETHICS

Speaker Biographies

Natasha Chee, Principal, Law Offices of Natasha S. Chee, practices intellectual property, entertainment law, business litigation and criminal defense. She is a Super Lawyers Rising Star Northern California from 2013-2016. Ms. Chee has a B.S. in Biochemistry, Minor in French from UCLA and a J.D. from Santa Clara University School of Law. She is on the Board of the Contra Costa County Bar Association (CCCBA) Barristers Section, former President of the CCCBA Women's Section in 2010, and was on the Board of California Women Lawyers where she was Chair of the Technology Committee and Editor of the Newsletter. For more information please see www.natashachee.com. Mary Grace Guzman, Conflicts Counsel, Covington Burling LLP, is a former associate at Fishkin & Slatter LLP. She is a Super Lawyers Rising Star Northern California since 2015. Ms. Guzman has a B.A. in Anthropology from UC Berkeley, and a J.D. from Santa Clara University School of Law. She is an active member of the Contra Costa County Bar Association – currently as Vice President of the Barrister’s Section. Jeff Thayer, Partner, Hawkins Parnell Thackston & Young LLP, practices complex litigation (toxic torts and products liability), automotive liability and warranties, intellectual property, entertainment law and insurance coverage. He has first-chaired and second-chaired numerous jury trials and has extensive experience in all civil litigation matters. Mr. Thayer has a B.S. in Chemical Engineering with an emphasis in Bioengineering from UCLA, a J.D. from Berkeley Law (Boalt Hall), and is registered to practice before the USPTO in all Patent matters. He is on the Board of the CCCBA Barristers Section and is active with the Litigation and Intellectual Property Sections.

TRIALS 101: CIVIL PRETRIAL CASE MANAGEMENT PART I: CASE INCEPTION: COMPLAINT AND ANSWER Plaintiff – Things to consider prior to filing a complaint:

• Interview client and review the pertinent documents from the client.

• What documents are needed?

• Research elements for each cause of action and likely defense(s).

• Punitive damages?

• Identify Defendants

• Statute of Limitations

• Venue

• Non-CA or Federal laws that may apply

Filing the Complaint:

• Judicial council forms

• California Rules of Court for formatting requirements.

• State “the facts constituting the cause of action, in ordinary and concise language.” (CCP

§ 425.10).

• Prayer for Relief.

• Serve the summons and complaint on the defendant.

Defendant – What to do after receipt of a complaint?:

• Did Plaintiff file in the correct venue?

o Removal – requires either diversity of citizenship or a federal question.

o Motion – did plaintiff sue in the “wrong court”?

• Other parties?

Defendant - Answer:

• Answer within 30 days, unless there is an extension of time per stipulation or court order.

• After denials, list affirmative defenses.

• Sign answer.

• Can amend answer once without leave of court.

Other ways to respond:

• You can cross-complain for affirmative relief. This is compulsory if your cause of action

is related to the subject matter of the complaint. CCP § 426.30.

• Can cross-complain against other parties if there is some subject matter relationship with

the instant action.

• Demurrer

o Gives defendant a chance to try to narrow the issues through the pleadings, which

can give a better chance to plot a defense and make a dispositive motion later on.

o Tests the legal sufficiency of the complaint. CCP § 422.10.

o Can be used only to challenge defects appearing on face of pleading, or matters

outside the pleading that the court can take judicial notice of. Blank v. Kirwan

(1985) 39 Cal.3d 311, 318.

o Must be filed within same time as answer is due – 30 days after service of

complaint, unless extended by stipulation or court order. CCP § 430.40(a). Must

be noticed for hearing not more than 35 days after filing or on first available court

date thereafter. CRC 3.1320(d).

o Can be filed in conjunction with motion to strike.

o Procedure same as motions. CRC 3.1100-3.1372. Opposition due 9 court days

before hearing, reply due 5 court days before hearing. CCP § 1005(b).

o If demurrer sustained, judge will typically give plaintiff chance to amend

complaint. If demurrer overruled, answer due in 10 days unless ordered otherwise.

CRC 3.1320(g). These deadlines run from service of notice of court’s

decision/order, unless notice waived in open court and entered in minutes of

court. CCP § 472b.

• Motion to strike

o Can be used to address defects/objections to pleadings that aren’t challengeable

by demurrer. CCP § 435(a)(2). And unlike demurrers, a MTS can be used to

single out single words and phrases. Warren v. Atchison, Topeka & Santa Fe Ry.

Co. (1971) 19 Cal.App.3d 24, 40.

o Must be filed within time allowed to respond to complaint – 30 days after service

unless extended by court order or stipulation. CCP § 435(b)(1).

o Normally filed with demurrer if there are grounds for both. Must be heard at same

time. CCP § 435(b)(3). Same notice requirements as for demurrer. CCP § 1005;

CRC 3.1320.

o Grounds (CCP § 436):

▪ Strike any “irrelevant, false or improper matter inserted in any pleading”.

▪ Strike any pleading or part thereof “not drawn or filed in conformity with

the laws of this state, a court rule or order of court”.

• File/serve notice of motion, points and authorities and proposed order. Serve at least 16

court days before hearing, plus any applicable additional time required for service other

than personal service. CCP §§ 435(b), 1005(b).

o If motion granted, judge may or may not require amended pleading depending on

how much stricken.

o If motion denied, defendant gets time to answer complaint. CCP § 472a(d).

Usually gets the same 10 days as when a demurrer is overruled. Time runs from

service of notice of ruling. CCP § 1019.5.

PART II: WRITTEN DISCOVERY: PROPOUNDING AND RESPONDING

A. Propounding Discovery: Form Interrogatories, Special Interrogatories, Requests for

Admissions, and Request for Production of Documents Outline

Interrogatories:

• Written questions asked by one party to another party, who must answer under oath and

in writing.

• The answers may be used as evidence.

• May be served on parties only.

• May serve sets of discovery.

• Two types: Form Interrogatories and Special Interrogatories

• Advantages:

o Inexpensive

o Less preparation than depositions

o They are used to obtain information “available” to the answering party, not just

their personal knowledge

o Obtaining details that one may not have right off the top of their head. Such as

dates and times, etc.

o Use them to obtain information that will be necessary for a deposition.

o Can be used to follow up after deposition questions that weren’t completely

answered.

Form Interrogatories:

• Judicial Council website has all of the official form interrogatories, under heading

“Discovery” and by type. These are optional.

• If your incident requires a special definition, you have the ability to insert that.

Special Interrogatories:

• Rule of 35:

o Each party has the right to propound 35 “specially prepared” interrogatories to

every other party.

• Additional interrogatories may be permitted

(1) As supplemental interrogatories to update earlier answer, or

(2) By declaration of necessity, or

▪ Grounds only for Interrogatories: Complexity of the issues in the case,

depos are too expensive, financial burden, expedience

(3) By written stipulation.

Service of Interrogatories:

• Interrogatories may be served without leave of court any time during the action except:

o Hold on Plaintiff’s interrogatories at the outset of the case:

▪ Plaintiff may not serve on defendant – first 10 days after service of

summons or defendant’s appearance in the action (whichever is first)

▪ Purpose is to give defendant a chance to hire counsel and get things in

order before having to respond to interrogatories.

▪ The court may grant leave (ex parte) for earlier interrogatories, but

requires a showing of “good cause.”

• Make copies for each party and keep the originals for your record

• They are not filed with the court

• Service may be completed by mail, by a person over the age of 18 who is not a party to

the case and the server must complete a “Proof of Service by First Class Mail (POS-

030)” form.

When Interrogatories May be Propounded:

• Plaintiff can serve interrogatories any time after serving the summons, subject to a hold

of 10 days.

• Defendant can serve interrogatories any time.

• Cut-off on Discovery Before Trial:

o Discovery proceedings must be completed 30 days before the initial trial date; and

o Discovery motions must be heard no later than 15 days before trial.

▪ Exceptions:

• Unlawful detainer (5 days before trial)

• Eminent domain proceedings

• Cases ordered to judicial arbitration

o Proceedings are completed on the day the response is due.

o Parties can stipulate or the court may grant leave for later interrogatories.

o Continuation of trial date doesn’t automatically extend time for discovery.

• Practice Pointer: Serve your last round of interrogatories at least 90 days before trial so

that the response is due no later than 60 days before trial. Just in case there are objections

or inadequate answers, then you can meet and confer, bring a motion to compel, have the

hearing on the motion to compel, etc.

Requests for Admissions:

• RFAs are used to ask another party to admit that certain facts are true, or that certain

documents are genuine.

• If admitted as true or authentic, these facts and documents do not need to be proven or

authenticated at trial.

o These are preclusive Admissions, which means they are conclusively proved

without further evidence needed.

• May move for Summary Judgment or Summary Adjudication

Optional - Requests for Admission (DISC-020) Cover Sheet

• May use this as a coversheet that includes all of the legally required language and

important instructions for the responding party.

Draft RFAs on pleading paper

• Number each request sequentially

• Be clear and concise.

• Request the party to admit to one fact at a time – don’t use “and” / “or” or subparts.

• Don’t make the requests vague, or ambiguous, otherwise they might be objectionable.

The Rule of 35 Applies:

• Genuineness of documents:

o No limit on the number of requests

o E.g. of a RFA for genuineness – “Admit that the photograph attached as Exhibit A

is a true depiction of the intersection of Bonanza and Main Street in Walnut

Creek, California as it existed on May 1, 2016.”

o Identify each document you wish the other side to admit is genuine.

o Each document must be attached as an Exhibit.

• All other requests are limited to 35.

• Additional Requests may be permitted

o (1) by declaration of necessity

▪ Grounds only for RFA: the complexity or the quantity of the existing and

potential issues in the particular case

• Service:

o Same as Interrogatories

• When RFAs May be Made:

o Same as Interrogatories

Requests for Production of Documents or Things

• RPDs may be used to inspect, copy documents, testing and sampling of documents or

tangible items, including electronically-stored information (ESI) and other physical

evidence held by the other party.

• Advantages:

o This is the only discovery procedure for gaining entrance onto opposing party’s

land.

o And only discovery method to obtain ESI.

o Can compel the opposing party to produce documents at deposition of some other

party or witness.

• Disadvantages:

o Can’t be used to obtain inspection of documents from nonparties.

o If the demand isn’t complied with voluntarily, the court will not order production

unless “good cause” is shown.

• Look at other ways to obtain the documents, e.g. the Public Records Act or Business

Records Subpoena.

No Limit:

• No limit to the number of demands that can be served.

o Contrast with Interrogatories and RFAs.

What May be Inspected:

• Documents

• Tangible things

o Does not include a dead body

• Land

• Electronically Stored Information (ESI)

o Computer hard drives, backup storage, laptops, cell phones, flash drives,

voicemails, test messages, records of internet searches, deleted files

o Get an expert who can help you tailor your requests.

Utilize Meet and Confer:

• Parties must meet and confer at least 30 calendar days before the initial case management

conference (CMC). Use this as an opportunity to propose and negotiate stipulations and

how the search will be conducted.

Responding to Written Discovery Pre-response considerations – What to think about before you set pen to paper:

• Take a look at what you’ve been served. For special interrogatories, did they follow the

rules laid out in C.C.P. § 2030.060 to:

o Number each set of interrogatories consecutively.

o Immediately below the title of the case, identify the propounding party, set

number and responding party.

o Set forth and identify each interrogatory by number or letter.

o Serve full and complete interrogatories without preface or preliminary instruction.

o Specially define capitalized terms.

• If there are more than 35 special interrogatories, or more than 35 requests for admission,

is there a declaration served with them that adequately justifies the additional

interrogatories or requests? See C.C.P. §§ 2030.050 and 2033.050.

• Keep in mind written discovery is directed to counsel as well as the client. E.g., Smith v.

Superior Court (1961) 189 Cal.App.2d 6.

• Need more time to answer?

• Who will draft the initial proposed responses?

• At some point anyway, preferably early on, you need to get information from your client

to respond.

Considerations for the actual responses:

Responses to Interrogatories:

• Separate answers are required. C.C.P. § 2030.210(a). “If only a part ... is objectionable,

the remainder ... shall be answered.” C.C.P. § 2030.240(a).

• Answers must be as complete and straightforward as possible. C.C.P. § 2030.220.

• General references to documents are an improper response to interrogatories. Deyo v.

Kilbourne (1978) 84 Cal.App.3d 771, 783-784.

o But in practice, judges will differ on whether referring to documents is sufficient.

• It is permissible to refer to documents when, for example, answering an interrogatory

would necessitate the preparation of a compilation, abstract, audit or summary of

documents, and the burden or expense of preparing the compilation would be

substantially the same for both sides. (C.C.P. § 2030.230.)

• General objections, boilerplate objections, and “nitpicking” are disapproved. See, e.g.,

Clement v. Alegre (2009) 177 Cal.App.4th, where the court imposed sanctions for, among

other things, “meritless” and “nitpicking” objections.

• Note that just because an interrogatory is a form interrogatory, it is not necessarily

“objection proof”. See Nacht & Lewis Architects v. Superior Court (1996) 47

Cal.App.4th 214.

• You may have objections to form based on failure to comply with C.C.P. § 2030.060. For

example, compound, conjunctive or disjunctive questions are prohibited by C.C.P. §

2030.060.

• A so-called “shotgun interrogatory”, a form requiring constant reference back to

preceding interrogatories, is prohibited. See West Pico Furniture Co. v. Superior Court

(1961) 56 Cal.2d 407, 419.

o In practice, however, following up one interrogatory that requires a simple “yes”

or “no” response with another interrogatory that asks for more specific

information if the response is “yes”, is likely permissible.

• Certain objections are not proper to make in response to written discovery:

o Question calls for opinion or conclusion. West Pico Furniture Co. v. Superior

Court (1961) 56 Cal.2d 407, 417.

o Asked and answered at deposition. Coy v. Superior Court (1962) 58 Cal.2d 210,

218.

o Assuming facts not in evidence. Greyhound Corp. v. Superior Court (1961), 56

Cal.2d 355, 392.

o Interrogator is conducting a fishing expedition. Greyhound Corp. v. Superior

Court (1961) 56 Cal.2d 384-386.

o Hearsay. Durst v. Superior Court (1963) 218 Cal.App.2d 460, 464.

o Interrogator knows facts. Singer v. Superior Court (1960) 54 Cal.2d 318, 324.

o Inability to respond, without some explanation. Sinaiko Healthcare Consulting,

Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390.

• Have objections to most of the discovery, or an entire set? Consider a motion for

protective order. C.C.P. § 2030.090. At the very least, meet and confer with opposing

counsel to try to reach a reasonable compromise. If you simply object to the entire set, the

court may not approve. See, e.g., Cembrook v. Superior Court (1961) 56 Cal.2d 423, 430.

• Certain objections are valid but have limited usefulness:

o Burdensome and oppressive - only valid when it results in injustice. E.g., Day v.

Rosenthal (1985) 170 Cal.App.3d 1125 “Oppression” requires showing of either

(1), intent to create unreasonable burden, or (2), burden incommensurate with

result sought. Id. Normally the court will want to see evidence showing the

quantum of work required. E.g., West Pico Furniture Co. v. Superior Court

(1961) 56 Cal.2d 407, 417.

o Question calls for content of document – you may or may not get some headway

with this objection. Compare West Pico Furniture Co. v. Superior Court (1961)

56 Cal.2d 407, 419 (information regarding identity of document or information

contained in documents is proper subject of interrogatory) to Holquin v. Superior

Court (1972) 22 Cal.App.3d 812 (in asking questions that had already been the

subject of discovery the court stated: “There is no reason why they should have to

answer a set of interrogatories which, in effect, asks them to review the file.”)

o Question calls for confidential information – this is a proper objection where

appropriate, but consider also a motion for protective order.

o Overbroad – this objection by its nature often raises issues of burden and

relevancy. E.g., Durst v. Superior Court (1963) 218 Cal.App.2d 460.

o Ambiguous – by using this objection with a substantive response, you can qualify

or explain an answer and emphasize that you respond in good faith.

o Information equally available to propounder. E.g., Alpine Mutual Water Co. v.

Superior Court (1968) 259 Cal.App.2d 45.

o Privileges – opposing counsel can seek identification of documents; only the

contents may be privileged. E.g., Smith v. Superior Court (1961) 189 Cal.App.2d

6.

Responses to Requests for Production:

• Per C.C.P. § 2031.210-2031.240, a responding party must indicate it will comply in

whole or in part, or it lacks the ability to comply; for each objection, the respondent must

identify with particularity the document at issue and the objection made. C.C.P. §

2031.240(b).

• Form of production: per C.C.P. § 2031.280(a), any documents demanded must

either be produced as they are kept in the usual course of business, or be

organized and labeled to correspond with the categories in the demand. Per

C.C.P. § 2031.280(e), if necessary, the responding party at the reasonable

expense of the demanding party must, through detection devices, translate any

data compilations included in the demand into reasonably usable form.

• Beware of being accused of doing a document dump.

• Is opposing counsel “reaching” with some of their requests? Keep in mind that on a

motion to compel, the burden of proof is on the party seeking production to show good

cause. C.C.P. § 2031.310(b)(1).

• “Privilege logs” per C.C.P. § 2031.240(c)(1). The purpose of a “privilege log” is to

provide a specific factual description of documents in aid of substantiating a claim of

privilege in connection with a request for document production. (See Korea Data Systems

Co. v. Superior Court (1997) 51 Cal.App.4th 1513, 1516-1517.)

• Common objections to requests for production include:

o Overbroad and/or unduly burdensome.

o Vague, ambiguous and/or unintelligible.

o Not reasonably calculated to lead to the discovery of relevant, admissible

evidence.

Responses to Requests for Admission:

• “Each answer in a response to requests for admission shall be as complete and

straightforward as the information reasonably available to the responding party permits.”

C.C.P. § 2033.220(a). “Each answer shall: (1) Admit so much of the matter involved in

the request as is true, either as expressed in the request itself or as reasonably and clearly

qualified by the responding party. (2) Deny so much of the matter involved in the request

as is untrue. (3) Specify so much of the matter involved in the request as to the truth of

which the responding party lacks sufficient information or knowledge.” C.C.P. §

2033.220(b). “If a responding party gives lack of information or knowledge as a reason

for a failure to admit all or part of a request for admission, that party shall state in the

answer that a reasonable inquiry concerning the matter in the particular request has been

made, and that the information known or readily obtainable is insufficient to enable that

party to admit the matter.” C.C.P. § 2033.220(c).

• Can deny on information and belief. E.g., Holguin v. Superior Court (1972) 22

Cal.App.3d 812, 819.

• Can deny for lack of information and belief. Holguin v. Superior Court (1972), 22

Cal.App.3d 812, 820.

• Can deny part of request or qualify answer. E.g., Chodos v. Superior Court (1963) 215

Cal.App.2d 318, 322.

• Note that opposing counsel cannot compel a further response when a request is denied

even where the facts are unquestionably true. Holguin v. Superior Court (1972), 22

Cal.App.3d 812, 820. Similarly, your client can’t be compelled to provide a further

response to interrogatories when responses are inconsistent with denials of requests for

admissions. Holguin v. Superior Court (1972) 22 Cal.App.3d 812, 821. If opposing

counsel demonstrates at trial that you should be admitted the request, you and/or your

client may end up paying their costs and attorney’s fees to do so. C.C.P. § 2033.420.

• Interrogatories regarding factual basis for denial are proper. Holguin v. Superior Court

(1972) 22 Cal.App.3d 812, 821.

• Common objections:

o Impermissibly compound: the propounding party can ask your client to admit

only one fact per request.

o Not reasonably calculated to lead to discovery of relevant, admissible evidence.

o Note that if only a portion of a request is objectionable, the non-objectionable

portion of the request must be answered. C.C.P. § 2033.230(a).

• As with other discovery devices, there are some objections that likely won’t fly with the

court:

o As discussed above, objections to an entire set of requests may be deemed to

demonstrate lack of good faith. Cembrook v. Superior Court (1961) 56

Cal.App.2d 423, 430. Meet and confer first with opposing counsel, and consider a

motion for a protective order.

o Lack of personal knowledge is insufficient if access to knowledge is reasonably

available. Lindgreen v. Superior Court (1965), 237 Cal.App.2d 743, 746.

o Complexity or controversy is an insufficient objection. Hillman v. Stultz (1968)

263 Cal.App.2d 848, 887.

o Ambiguity, unless too ambiguous to allow an intelligent reply. Cembrook v.

Superior Court (1961) 56 Cal.2d 423, 429-430.

o Legal conclusion when mixed question of law and fact. E.g., Burke v. Superior

Court (1969) 71 Cal.2d 276, 282 (Request for admission concerning legal

question raised in pleading.)

o Facts known to propounder of request. Hillman v. Stultz (1968) 263 Cal.App.2d

848, 885.

After you’ve prepared the responses:

• Keep in mind that, unless they consist solely of objections, they must be verified by the

client. Unverified answers may be equivalent to no response. Zorro Inv. Co. v. Great

Pacific Securities Corp. (1977) 69 Cal.App.3d 907 (addressing this issue for requests for

admissions).

o In practice, there is typically little or no harm in serving the verifications shortly

after the responses are served.

PART III: DEPOSITIONS Taking a Deposition While there are no absolute rules for preparing to take a deposition, there are three primary phases of deposition preparation: (1) determining your goals and purpose for taking a deposition; (2) familiarizing yourself with the facts and legal concepts of your case; and (3) preparing an outline of the deposition. 1. Determine your goals and purpose. 2. Educate yourself about the facts, legal concepts, and witnesses in your case. To develop your factual and legal knowledge, you should:

• Review the pleadings and jury instructions.

• Research applicable case law.

• Review prior discovery.

• Review the applicable rules of civil procedure.

• Research witnesses.

3. Prepare an outline. At this stage, you determine:

• the depositions’ sequence and structure, including whether depositions should proceed

chronologically or by subject matter;

• your strategy for questioning;

• what exhibits you will use;

• topics to discuss with witnesses; and,

• in some cases, the actual questions you will ask.

Deposition outlines also should provide the foundation for all documents you want admitted into evidence at trial. How you create your outline is up to you: you could script every question, identify topics using bullet points, or simply write out a few broad concepts. During the Deposition: Keep in mind that you may be setting up an MSJ/MSA and/or favorable settlement down the road. Get answers to the questions most directly affecting liability in the case. Put admonitions on the record to begin with. Defending a Deposition Things to Know When You Are AT the Deposition 1. How should your client appear and behave? 2. How do you deal with different personalities? 3. What do you do when you are defending the depositions of ex-employees and others who are not the primary client? 4. Stipulations at the outset 5. Documents reviewed to refresh recollection 6. Medication 7. Home ownership 8. Other lawsuits in which your witness has been involved 9. Felony convictions 10. Tax returns 11. Privileges

12. Attorney-client privilege 13. Spousal and other less common privileges 14. Form objections – when to use them and when not to 15. Being obstructive 16. Leaving the room when question is pending 17. Correcting testimony PART IV: DISPOSITIVE MOTIONS Purpose of MSJ and MSA:

• The party moving for summary judgment bears the burden of persuasion that there

is no triable issue of material fact and that he is entitled to judgment as a matter of

law. See CCP Section 437c.

MSJ MSA

• Asks the court to determine whether

the entire action has no merit (or no

defense) and to terminate the action

without the necessity of a trial. (See

CCP 437c(a))

• When court grants MSJ, the action is

terminated.

• Immediately appealable judgment is

entered.

• Asks the court to adjudicate the merits

of a particular cause of action,

affirmative defense, issue of duty or

claim for damages, including a

punitive damage request. (See CCP

437c(f))

• When court grants on specific claim or

defense, then the action proceeds to

trial on the remaining issues.

• Summary Adjudication order is not

appealable.

Burden of Proof on Motion:

• Parties moving for and opposing carry both a burden of persuasion and a burden of

production of evidence. Procedural Requirements:

• Required:

o Notice of Motion

o Separate Statement of Undisputed Facts

o Points and Authorities

o Request for judicial notice, if appropriate; and

o Declarations of other evidence.

• When the Motion May be Made:

o 60-day Hold at beginning of case – an MSJ or MSA cannot be made until at least

60 days after the general appearance of the party against whom it is directed,

unless the court permits it earlier for good cause shown.

o Cut-Off 30 Days Before Trial:

▪ Motion can’t be heard later than 30 days before date set for trial, unless

otherwise ordered for good cause.

• Service and Filing Requirements:

o 75-day notice requirement, motion must be served at least 105 days before trial,

80 days if by mail w/in CA, 85 days if elsewhere in US, 95 days outside of US.

o Check the department, in which your motion will be heard, motions may only be

heard on certain days, thus will affect time the notice must be served.

• Notice of Motion - Specific Order of Judgment Sought:

o Summary Judgment:

▪ Should name the party in whose favor and against whom the judgment is

sought and the amount, if applicable.

▪ If it is a multi-party action, directing it “to all opposing parties” may not

be adequate notice where different relief is sought against different parties.

o Summary Adjudication:

▪ Notice must specify the “specific cause of action, affirmative defense,

claims for damages, or issues of duty” sought to be adjudicated. Separate Statement of Undisputed Material Facts (UMF):

• Every MSJ must be accompanied by a “separate statement setting forth plainly and

concisely all material facts which the moving party contends are undisputed.”

• Purpose:

o Determine quickly whether the motion is supported by sufficient undisputed facts.

o Judge can go to the evidence cited and review that part.

• Effect:

o The moving party must identify the matters it contends are “undisputed,” and cite

specific evidence (pleadings admissions, or discovery, or declarations), showing

there is no controversy and the part is entitled to judgment as a matter of law.

Separate Statement Format Requirements: Moving Party:

• Separate:

o The statement is a separate document and not part of the notice of motion.

• Caption:

o “Statement of Undisputed Material Facts in Support of Motion for Summary

Judgment (or Adjudication, or both).”

• Two-column Format:

o First column: “Moving Party’s Undisputed Material Facts and Supporting

Evidence”

o Second column: leave blank for opp. Counsel’s responses.

• Left Column:

o Moving party states in numerical sequence each undisputed material fact and

immediately below it, in the same column, a citation to the supporting evidence.

Moving Party’s Undisputed Material Facts and Supporting Evidence

1. Plaintiff Smith orally agreed

to sell and deliver to

defendant Jones 10,000

widgets for $100,000. Smith’s declaration, 1:17-21

Opposing Party:

• Separate Document

• Caption:

o The document must be entitled “[Opposing Party’s] Separate Statement of

Undisputed Material Facts in Opposition to [Moving Party’s] Motion for

Summary Judgment or Summary Adjudication or Both.”

• In right column of moving party’s SS:

o Opposing party’s response must be placed in the 2nd or right hand column, entitled

“Opposing Party’s Response and Supporting Evidence.”

o It must either state: Undisputed or Disputed

Moving Party’s Undisputed Material Facts and Supporting Evidence

Opposing Party’s Responses and Supporting Evidence

1. Plaintiff Smith orally agreed

to sell and deliver to

defendant Jones 10,000

widgets for $100,000. Smith’s declaration, 1:17-21

Disputed. The agreement was for bales of hay. Jones’ declaration, 3:2-9

2. The sale was made through

Broker who told Jones at the

time of the sale that Smith’s

widgets were Grade No. 2. Smith’s declaration, 3:5-9; Broker’s declaration, 2:7-18

Objection: Hearsay. See Objection No.1. Disputed. Broker never told this to Jones. Jones’ declaration, 6:5-7

• Additional Facts in Dispute. Opponent’s Right to Continuance:

• Opposing party - by declaration

• Continuance.

• Need only show that material evidence may exist.

• Timing of Request for Continuance:

o An application to continue the motion may be made in the opposition papers or by

ex parte motion any time on or before the date the opposition to the motion is due.

Opposition - Service and Filing Requirements:

• At least 14 days before the date set for hearing on the motion, unless the court shortens

the time for good cause. Objections to Moving Party’s Evidence:

• The opposing party may object to the moving party’s evidence.

• Trial courts have a duty to rule on objections.

• Form:

o Objections to Evidence:

▪ Procedure for objection: Evidentiary objections must be made “at the

hearing” or are deemed waived.

▪ A party may object to evidence in opposing papers either by submitting

written objections before the hearing or “making arrangements for a court

reporter to be present at the hearing.”

o Time for Filling Written Objections:

▪ All written objections must be filed and served at the same time as the

objecting party’s opposition or reply papers.

• Format for Written Objections:

o Objections are a Separate Document:

▪ The written objections must be served and filed separately from papers

supporting or opposing the motion.

o Each written objection must be numbered consecutively and must:

▪ Identify the name of the document in which the objectionable material is

located;

▪ State the exhibit, title, page and line number of the material objected to;

▪ Quote or set forth the objectionable statement or material; and

▪ State the grounds for each objection

o Must follow one of two formats:

▪ The first format - place each item of evidence objected to in one

paragraph, followed by a paragraph stating the objection.

▪ The second format - place the evidence objected to in one column and the

objection in an adjacent column.

• Proposed Order Required:

o Whichever format you choose, the proposed order will have the same format. Format 1: Court’s Ruling On Objection No.__ Sustained : _____ Overruled: _____ ____ ____________ Date Judge Format 2: In a third column on the same page.

Reply Papers

• To respond to the opposing party’s statement of additional disputed facts.

• No separate statement or evidence.

• No new evidence

• Moving party has a right to file a reply to the opposition. May not exceed 10 pages.

• Proposed Order:

o Generally included with reply papers.

• Objecting to Opposing Party’s Evidence:

o Object.

o The moving party generally may not rely on additional evidence filed with its

reply papers.

• Reply - Service and Filing Requirements:

o Serve and file at least five days before date of hearing PART V: EXPERT DISCOVERY

• Any party can compel exchange of expert witness lists and related information shortly

before trial per C.C.P. §2034.210.

• A demand for exchange of expert witness information per C.C.P. §2034.210 requires all

parties to mutually and simultaneously exchange information about their experts.

• A demand can be made after a case is initially set for trial. The deadline is 10 days after

the initial trial date has been set or 70 days before that trial date, whichever is later. If the

last day falls on a weekend or holiday, the time limit is extended to the next court day

closer to the trial date per C.C.P. §2016.060.

• The demand must be in writing. The name of the party making the demand must appear

below the title of the case. C.C.P. §2034.230(a).

• The demand must state that it is being made under Chapter 18 of the Civil Discovery Act

(C.C.P. §2034.210 et seq.). C.C.P. §2034.230(a).

• The demand must state the date on which the required information is to be exchanged.

That date must be 20 days after service of the demand, or 50 days before trial, whichever

is later. C.C.P. §2034.230(b).

• The demand can also require “the mutual and simultaneous production for inspection and

copying of all discoverable reports and writings” of experts employed by the parties.

C.C.P. §2034.210(c).

• The demand must be served on all parties who have appeared. C.C.P. §2034.240.

• Any party served with a demand can seek a protective order to limit or excuse the

exchange of expert witness information demanded. C.C.P. §2034.250(a).

• Exchange of expert witness information can occur either at a meeting of the attorneys

involved or by mailing the information on or before the date set for the exchange. C.C.P.

§2034.260(a).

• Following information must be exchanged:

o List of name and address of each expert that party expects to offer at trial, either

live or via deposition testimony. C.C.P. §2034.260(b)(1).

o “Expert witness declaration” must be attached for each expert designated who is

either a party to the action, an employee of a party, or “retained by a party” for the

purpose of forming and expressing an opinion. C.C.P. §2034.210(b). Must contain

following information:

▪ Brief statement of expert’s qualifications.

▪ Brief narrative statement of “general substance of expected testimony.”

▪ Represent that expert has agreed to testify at trial, and will be sufficiently

familiar with the pending action to provide a meaningful oral deposition

concerning the specific testimony expect is expected to give at trial.

▪ Statement of expert’s hourly and daily fee for providing deposition

testimony and consulting with retaining attorney. C.C.P. §2034.260(c).

o If demand included demand for exchange of all discoverable reports and writings,

all parties must exchange “all discoverable reports and writings” made by that

expert in the course of preparing his/her opinion. C.C.P. §2034.270.

▪ Reports “in capacity of expert witness” are discoverable.

▪ Consultants’ “advisory” reports are protected as work product.

• Right to supplement expert witness exchange by adding experts to cover subjects on

which opposing party indicates it plans to offer expert testimony, and on which it had not

previously retained an expert to testify. C.C.P. §2034.280(a).

o Within 20 days after original exchange, any party can serve a “supplemental

expert witness list”, an “expert witness declaration” for each such expert; and

discoverable reports and writings. C.C.P. §2034.280.

o Must make experts available for deposition “immediately”, even if 15-day

deadline for deposing experts has expired. C.C.P. §2034.280(c).

• Any party can depose any or all experts listed by another party. C.C.P. §2034.410.

o If expert has been retained to testify, it is responsibility of party designating

him/her to make him/her available for deposition on service of a proper notice and

payment of the expert’s fees by the deposing party. C.C.P. §2034.410,

§2034.460(a).

o If expert has been retained to testify, no subpoena is needed, just notice and the

fee. C.C.P. §2034.460(a).

o Deposing party alone is responsible for fee. C.C.P. §2034.430(b). Fees must be

paid to any expert witness listed in exchange other than parties or employees of

parties. C.C.P. §2034.430(a).

o Fee can be tendered either on service of the notice, or at commencement of the

expert’s deposition. C.C.P. §2034.450(a).

• Undisclosed expert can be called to impeach opposing experts, but cannot contradict that

expert’s opinion. C.C.P. §2034.310(b). The undisclosed expert can testify to “the falsity

or non-existence of any fact used as the foundation for any opinion” by the opposing

expert. Id.

PART VI: ETHICS 1. Introduction—Ethics moving away from

2. Consultation with a Prospective Client

a. FIRST THING, Do a preliminary conflict of Interest check

(i)3-310(B), (C) Avoiding the Representation of Adverse Interests (Prposed

Rule 1.7 Conflict of Interest: Current Clients)

b. Second, Listen to the client’s whole story.

c. Third, be aware of Toxic Clients

(i)“I knew you were trouble when you walked in” (Taylor Swift)

(ii)Red Flags

a) Multiple past attorneys

b) Retainer woes

c) Unrealistic expectations

d) “This isn’t about the money; it’s about the principle

e) Poor Personality mix

f) Lucky me to get such a big case

g) It’s on the eve of the statute of limitations

h) You’ve got that funny feeling in the pit of your stomach.

d. In office, phone, e-mail, fax consultations are all the same. In Re Reynoso (9th 2007)

477 F 3rd 1117 website questionnaire is the equivalent of an office consultation

e. It is not always clear if a preliminary consultation has turned into a formal attorney

client relationship. Miller v. Metzinger (1979) 91 Cal.App.3d 31. It is thus prudent to

send something in writing when turning down a prospect.

3. Establishing the attorney client relationship-The test is from the vantage point of the reasonable putative client. Ferrara v. La Sala (1960) 186 Cal.App.2d 263

a. The Attorney Client Fee Agreement

(i)Relevant Rules

a) Written Fee Agreements required under Business & Professions 6146

– 6149

b) Disclosure of malpractice coverage Rule 3-410 (Proposed Rule 1.4.2

Disclosure of Professional Liability Insurance)

c) Foreign Language contracts Civil Code 1632

(ii)Clear statement - who is the client?

(iii)Clear Statement about scope of representation

(iv)Sometimes you have a duty to inform client of possible claims outside the

scope of representation Nichols v Keller (1993) 15 Cal App 4th 1684; Janik v

Rudy (2004)119Cal App 4th 930

b. Third Party Payor

(i)RPC 3-310 (F) Written Consent of Client (Proposed Rule 1.8.6 Compensation

from One Other Than Client)

(ii)Wager v Mirzayance (1998) 67 Cal App 4th 1187, right to fee arbitration

c. Special Clauses in the Fee Agreement

(i)“Earned on Receipt” vs “True Retainer” vs prepayment of fees vs “minimum

Fee”

(ii)Methods of communication

(iii)File retention

(iv)Court award of attorney fees for successful cases

(v)Sanction awards

(vi)Liens

d. Community Property

(i)Hourly and flat fee contracts: Rule 3-300, Fletcher v Davis (2004) 33 Cal 4th

61

(ii)Rule 3-300 does not apply to contingency fee agreements Plummer v.

Day/Eisenberg (2010) 184 Cal.App.4th 38

(iii)Community Real Property, Fam C 2033 & 2034 plus Rule 3-300 (Proposed

Rule 1.8.1 Business Transactions with a Client and Pecuniary Interests

Adverse to the Client)

4. ETHICS COUNSEL

a. An attorney can disclose client secrets to her own ethics attorney in order to obtain

legal advice. Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294

(2001)

b. The fact that an attorney sought the advice of another attorney is no defense to

wrongdoing. Sheffield v. State Bar of Cal. (1943) 22 Cal.2d 627. But it helps.