CIVIL LITIGATION I - Fall 2020
Prof. Lisa Mitts Patrick
STUDY GUIDE SUMMARY FOR FINAL
TOPICS: 1. GENERAL REVIEW OF COURT STRUCTURE
A. STATE CASES
The California Constitution authorizes the California court system
The California Supreme Court is the highest court in the state. It is a court of last
resort, meaning that a party must bring their case before lower tribunals and exhaust
those legal avenues before they can proceed to the state supreme court. <<<
The Court of Appeal reviews questions of law. It does not re-try cases. It may affirm
the lower court judgment, reverse it or reverse the decision and remand the case back
to the lower court to reach a decision consistent with the court of appeal opinion. Six
Appellate Court (L.A. is 2nd District) <<<
(Trial Courts) The Superior Court is a trial court of general jurisdiction including
civil and criminal cases and cases directed to special courts such as probate or
juvenile cases. Small Claims Court handles limited jurisdiction – civil complaints up
to $12,5000 for individuals, $6,250 for corporations.
B. FEDERAL CASES
The Federal Rules of Civil Procedure and local rules govern practice in the federal
courts.
The U.S. Supreme Court is the highest court in the U.S. and the final authority on
federal law. It has exclusive jurisdiction to hear federal issues and original
jurisdiction over cases with foreign diplomats and where states are a party to the suit.
<<<
The U.S. Court of Appeals has 13 circuit courts. (California is the 9th Circuit) <<<
(Trial Courts) The U.S. District courts are the trial court of the federal court system.
There are more than 90 district courts throughout the U.S., four of which are in
California. Tax Court – Federal Claims Court has limited jurisdiction court
C. CRIMINAL CASES - WHAT DEFINES ONE?
The purposes of criminal laws are to: prohibit or punish crimes against society; deter
criminal acts; promote peaceful resolution for victims; and encourage an orderly
society. The burden of proof standard to convict the defendant is “beyond a
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reasonable doubt” which is a very high standard requiring proof against the
defendant to be so conclusive and complete that any reasonable doubt is removed
from the juror’s minds. The standard is high because of the gravity of the penalty
upon conviction.
D. CIVIL CASES - WHAT DEFINES ONE? Usually suing for money
or other ‘damages’/losses. No jail. No fines. Standard
of proof is lower than required for criminal cases.
Preponderance of the Evidence vs. Beyond a Reasonable
Doubt in Criminal.
TYPES OF CIVIL CASES:
• ACCIDENTAL (NEGLIGENT) TORT
• Negligence/carelessness – failure to act with
reasonable care, leading to harm (ex: car accidents)
• Premises Liability – injuries occurring on someone
else’s property (ex: slip-and-fall)
• Strict Products Liability – manufacturer held
liable for defective products causing harm, regardless of fault
• INTENTIONAL TORT
• Assault – threat of imminent harm
• Battery – unauthorized physical contact causing harm
• BREACH OF CONTRACT – failure to fulfill agreed-upon terms
in a contract
• PROPERTY CLAIMS – disputes over ownership, damage, or use
of property
• DEFAMATION
• LIBEL – false statements in writing causing harm
• SLANDER – false spoken statements causing harm
• CLASS ACTIONS – cases where a group of people sues
collectively over similar harm (ex: defective products,
environmental damage)
E. WHAT RULES GOVERN CIVIL CASES?
CALIFORNIA CODE OF CIVIL PROCEDURE (CCP)
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Governs procedural aspects of lawsuits in California (ex: filing deadlines,
jurisdiction rules, discovery)
CCP § 335.1: 2-year statute of limitations for personal injury.
CCP § 425.10: Requirements for the contents of a complaint.
CALIFORNIA RULES OF COURT (CRC)
Provides detailed rules for court practices and procedures, including
formatting requirements, filing methods and deadlines
CRC Rule 2.100-2.118: Formatting requirements for documents (e.g., font
size, line spacing).
CRC Rule 3.720-3.730: Timelines for case management conferences.
LOCAL RULES WHAT IS THE DIFFERENCE
BETWEEN THEM ALL?
Individual courts’ additional rules tailored to their
operations (ex: filing locations, judge assignments)
WHAT IS THE DIFFERENCE BETWEEN ‘PROCEDURE’ AND
‘SUBSTANCE?’
• Procedure – rules governing how a case moves through the court
• Substance – the actual legal principle determining rights and
responsibilities
WHAT ABOUT THE CIVIL CODE? (GOVERNS SUBSTANCE)
The California Civil Code governs substantive civil law (ex:
contract law, tort law, property rights)
It defines legal obligation, rights, and remedies for civil matters
2. OFFICE / CASE / FILE MANAGEMENT
A. COMMUNICATION WITH CLIENTS - LETTERS OR IN PERSON
• CONFIDENTIALITY – protect client information from unauthorized
disclosure
• ATTORNEY CLIENT PRIVILEGE – ensures communication between
attorney and client remains private unless the client waives it.
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• ATTORNEY WORK PRODUCT – documents and materials prepared in
anticipation of litigation are protected
• MUST ZEALOUSLY REPRESENT THE CLIENT’S INTERESTS –
lawyers must advocate strongly within the bounds of the law for their
client’s interests.
• ETHICS RULES - STATE BAR ‘RULES OF PROFESSIONAL
CONDUCT – ex: maintaining client trust accounts, avoiding conflicts of
interest
• PARALEGAL’S JOB IS TO MAKE ATTORNEY’S JOB EASIER
- HELP/SUPPORT ATTORNEY AND OTHER STAFF HELP THE
CLIENT
- Draft client correspondence, assist with intake interview, gather and
summarize documents to streamline attorney work
B. COMMUNICATION WITH OFFICE STAFF - MEMOS
• YOUR CO-WORKERS PARALEGAL STAFF
• YOUR ATTORNEYS
• YOUR SUPERVISING STAFF
• WHAT IS THE POINT OF YOUR MEMOS? WHO IS YOUR
AUDIENCE?
▪ Purpose – share research findings, updates or instructions efficiently
• LEGAL WRITING BASICS - I. R. A. C . (ISSUE, RULE,
ANALYSIS, CONCLUSION.)
• RESEARCH TIPS – use reliable sources (ex: Westlaw, LexisNexis or
state law websites)
C. DIFFERENCE BETWEEN OFFICE MEMO AND RESEARCH MEMO
• Office memo – internal communication focusing on procedural
updates, task assignments, or case progress
• Research memo – formal analysis of a legal question using I.R.A.C.
method, intended to guide legal strategy or decision-making
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D. RETAINER AGREEMENTS - WHAT AREA THEY, WHERE CAN YOU
GETGOOD ONES TO USE IF FIRM DOESN’T HAVE ONE, OR IT’S A
NOVEL CASE OR NEW CLIENT? STATE BAR WEBSITE.
(pre-litigation stage) If the attorney decides to take the case, the attorney and client
enter into a retainer agreement which formally establishes the attorney-client
relationship, setting forth, among other things, the scope of the representation and
how the attorney will be compensated.
State bar website – courts.ca.gov
E. MAINTAIN TIME/HOURS LOGS - EVER SINGLE TASK STANDARD
BILLING PORTIONS OF AN HOUR? - TENTHS CHEAT SHEET ON
TIMES TO PUT?
F. MAINTAIN COSTS/EXPENSES LOGS
Record all client-related expenses, including filing fees, postage and expert witness
fees
G. CALENDARING IMPORTANT DATES
• TYPES OF CALENDARING SYSTEMS TO USE
• Tickler Cards
• Google Calendar
• Write On/Erase Board Calendars
• Personal Desktop Calendar - Small, Large
• Color Coding System
H. PREPARING FOR IMPORTANT DATES AHEAD OF TIME
•Importance Of Calendaring System...Calendaring Reminders Too, Including
Hearing Dates, Preparation Dates For Hearings, And Deadlines To Prepare For
Something Due
3. PRE-LAWSUIT CONSIDERATIONS
A. GOVERNMENT CODE FILING DEADLINES BEFORE LAWSUIT
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When suing a government entity, file a claim within the time frame specified by the
California Government Code (typically within 6 month of the incident)
B. MEDICAL MALPRACTICE NOTICE REQUIREMENTS
Notice to Healthcare Providers: before filing a lawsuit, California law (CCP § 364)
requires giving healthcare providers at least 90 days’ written notice
C. CONTRACTUAL ARBITRATION MANDATES
Some contracts require disputes to be resolved through arbitration before ligitation
D. OTHER TYPES OF PRE LAWSUIT STEPS THAT HAVE TO BE TAKEN
BEFORE SUIT CAN BE FILED.
Demand letters – informally request resolution to avoid litigation
Settlement Negotiations – attempt to resolve disputes without court intervention
4. STATUTES OF LIMITATIONS
WHAT DOES A STATUTE OF LIMITATIONS DO?
Statutes found in the Code of Civil Procedure which set forth the maximum
period which can elapse between the event giving rise to a lawsuit and the actual
filing of the lawsuit
Protects defendants from stale claims where evidence might no longer be
available
WHERE DO I FIND WHAT A STATUTE OF LIMITATIONS IS?
For California, refer to the CCP
Federal Codes, refer to U.S. Code
Legal research tools
HOW TO CALCULATE A STATUTE OF LIMITATIONS DATE
WHAT HAPPENS IF WE BLOW A STATUTE OF LIMITATIONS DATE?
Start from the date of the event or injury
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Consider any “discovery rule” expectations, where the statute starts when the
plaintiff knew or should have known about the harm
5. WHAT IS A PARTY?
• Plaintiff v. Defendant
Plaintiff – person/entity filing the lawsuit
Defendant – the person/entity being sued
• Cross Complainant v. Cross Defendant
When a defendant files a claim against another party in the same lawsuit
• Petitioner v. Respondent
Petitioner – initiates a case in non-litigation matters (ex: family law,
probate)
Respondent – responds to the petition
WHO IS A FIRST PARTY?
Typically, the plaintiff or defendant in the main dispute
WHO IS A THIRD PARTY?
A person or entity brought into a case by a defendant who alleges they share
responsibility
6. STANDING TO SUE
WHAT IS STANDING?
A plaintiff’s right to bring an action in court, and a defendant’s right to defend that
action
WHO HAS STANDING TO BE A PARTY IN A LAWSUIT?
Individuals or entities directly affected by the dispute
WHO DOES NOT HAVE STANDING?
Those without a personal or legal interest in the matter
7. CAPACITY TO SUE
WHAT IS CAPACITY?
Of legal age and mental competency
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WHO HAS CAPACITY TO BE A PARTY IN A LAWSUIT?
Adults of sound mind, legally recognized entities
WHO DOES NOT HAVE CAPACITY?
Minors, individuals under conservatorship, or entities not properly formed
8. WHAT IS JOINDER?
Joinder of parties – bringing together different parties into one lawsuit
WHO/WHAT MUST BE JOINED IN A LAWSUIT?
Necessary parties whose rights or obligations are directly impacted by the
outcome
WHO/WHAT CANNOT BE JOINED IN A LAWSUIT?
Parties with no legal or factual relevance to the case
9. JURISDICTION
WHAT COURTS CAN HEAR THE TYPE OF MATTER I WANT TO SUE
FOR?
Jurisdiction depends on the type of matter and value of the claim
IS IT A FEDERAL MATTER?
•Diversity (Citizens Of Different States/Countries) Must Be $75k+ In Value Too
• Federal Law/Federal Question Case? If It Is About A Federal
Law, Use Federal Court.
IS IT A STATE MATTER?
• TYPE OF CASE? WHAT TYPES OF CASES DOES
THIS COURT HEAR?
o FAMILY LAW – divorce, child custody
o PROBATE – wills and estates
o WORKERS COMPENSATION -workplace injuries
o ADJUDICATION HEARINGS,
o GENERAL JURISDICTION – civil cases over $25,000
• Consider MONEY JURISDICTION.
o Superior Court (Unlimited)
o Limited Civil (up to $25K)
o Small Claims (No Lawyers and up to $10K most of the
time. Some special rules.)
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10. VENUE
IS THIS COURT ‘HOUSE’ THE PROPER LOCATION TO FILE OUR
LAWSUIT?
Yes!
HOW DO WE KNOW?
• Usually it’s where the defendant ‘resides’ residence issues
• Usually it’s where the accident happened
• Usually it’s where the breach of contract happened
• It’s almost never where the plaintiff resides - we don’t care about the
plaintiff’s convenience.
SPECIAL VENUE ISSUES IN LOS ANGELES COUNTY (PI COURTS..)
11. COURT DOCUMENT BASICS
A. CAPTION
1. Name/title/sbn/contacts of attorney
2. For which party (name/capacity)
3. Court location including county, and locality
4. Parties’ names
5. Court data: case #, judge, courtroom no.
6. Important dates - 2 of them
7. Add in a hearing date if there’s one applicable
• Date
• Time
• Place
8. Rules re typestyle, type size, margins etc.
B. FOOTER - rule re line, number and document name
C. BODY OF YOUR DOCUMENT
D. SIGNATURE BLOCK
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E. PROOF OF SERVICE FOR ALL DOCUMENTS
1. Initial proof of service - personal service of Initial summons. Must be
personal.
2. ALTERNATIVES TO PERSONAL SERVICE? Substitute service
Service by publication
3. AFTER INITIAL DOCUMENT, SERVICE TYPICALLY BY
MAIL.
4. ALTERNATIVES TO SERVICE BY MAIL? WHY? COST?
OVERNIGHT MAIL? - ensures faster delivery than regular mail
which is useful for urgent deadlines or when time receipt is crucial.
Cost $20-40
FAX? – provides a nearly instantaneous method to send
documents, both parties must agree. Cost $10-15
EMAIL? – fast and inexpensive
PERSONAL SERVICE? – guarantees that the documents are
received directly by the intended recipient
5. SPECIAL RULES FOR CALCULATING DUE DATES AFTER
SOMETHING HAS BEEN SERVED.
• Personal - no extra time
• mail - usually 5 calendar days
• Overnight/fax - usually 2 calendar days
• eservice - 2 court days
12. PLEADINGS
A. COURT FORM PLEADINGS
B. DRAFTED PLEADINGS
DIFFERENCE BETWEEN CAPTION REQUIREMENTS FOR EACH
C. TYPES OF PLEADINGS
• COMPLAINT
▪ Must allege facts that happened.
▪ Must allege what Defendant did that entitles Plaintiff to Relief
▪ Must refer to the law (words/explain) in what Defendant “did”
or “did not do”/”omitted” that entitled Plaintiff to relief.
▪ Must have/allege ‘damages’
▪ Must ‘pray’ for relief
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• ANSWER TO COMPLAINT
General Denial (can’t use always)
Specific Denial Affirmative Defenses must be alleged.
AN ANSWER ONLY ADDRESSES PLAINTIFF’S
ALLEGATIONS. DOES NOT COVER DEFENDANT’S
OWN CLAIMS BACK AGAINST THE PLAINTIFF.
• CROSS COMPLAINT
By a defendant for claims they have back
Against the plaintiff or brings in new 3rd parties. Must also
be answered by the plaintiff/cross defendant.
• ANSWER TO CROSS COMPLAINT • MOTION
TO...
• Opposition to motion to...
• Application or petition for ...
• Brief
• Notice of ...
• Request for ...
• Demand to ...
• Order on ...
13. PROOF OF SERVICE
REQUIREMENTS - FORM
REQUIREMENTS - CAPTION/DRAFTED PLEADING
14. HOW TO CHALLENGE THE PLEADING/SERVICE/JURISDICTION/VENUE
MOTION TO QUASH
OTHER MOTIONS
DEMURRERS
15. FAILURE TO ANSWER - DEFAULT
• WHEN A DEFAULT OCCURS
• HOW TO SECURE A DEFAULT
• WHAT TO DO AFTER A DEFAULT HAS BEEN
SECURED/ENTERED?
• DID YOU WIN AUTOMATICALLY?
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• BUT DO YOU HAVE TO DO ANYTHING TO PROVE YOU WON?
...TO OBTAIN YOUR PAPER JUDGMENT THAT YOU GO
COLLECT?
• DEFAULT BY CLERK?
• DEFAULT BY COURT?
• Same court form for Request to ENTER default, to
get Default by Clerk (with copy of proposed
Judgment) and Default by Court (with copy of
proposed Judgment.)
16. ANSWER (see above)
17. AMENDED PLEADINGS
• MAY AMEND ONCE AS A MATTER OF RIGHT BEFORE AN
ANSWER
• MAY AMEND WITH COURT PERMISSION AFTER THAT
AMENDED DOCUMENTS vs. AN AMENDMENT TO A DOCUMENT
18. ATTACKING THE PLEADINGS
MOTION TO STRIKE (LANGUAGE IN IT YOU DON’T LIKE–THAT’S
NOT LEGALLY VALID)
DEMURRERS - General and Special
19. MOTIONS IN GENERAL
REQUIREMENTS FOR A MOTION
• NOTICE OF THE MOTION AND HEARING
DATE/TIME/PLACE
• THE MOTION (REQUEST) ITSELF
• A DECLARATION (SIGNED UNDER PENALTY OF
PERJURY–USUALLY DONE BY THE ATTORNEY
BRINGING
THE MOTION BUT CAN BE THEIR STAFF OR OTHER
WITNESSES) OF FACTS AND/OR ATTACHMENTS THAT
SUPPORT THE MOTION
• POINTS AND AUTHORITIES - CAN BE PART OF THE
MOTION OR A SEPARATELY TITLED DOCUMENT OR
PAGE WITHIN THE DOCUMENT CALLED “MEMORANDUM
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OF POINTS AND AUTHORITIES” THAT SET FORTH
THE
LAW THAT ALLOWS THE REQUEST THAT THE MOVING
PARTY IS MAKING.
• A PROPOSED ORDER READY FOR THE COURT TO SIGN
IF/WHEN YOU WIN
REQUIREMENTS TO OPPOSE A MOTION
• PAY ATTENTION TO TIME THE OPPOSITION IS DUE
• MUST SET FORTH REASONS (FACTS, LAW, BOTH)
WHY THE MOTION SHOULDN’T BE GRANTED
• MUST ALSO CONTAIN POINTS AND AUTHORITIES
• MAY ALSO CONTAIN DECLARATIONS
• USUALLY THE ‘WINNING’ PARTY IN A MOTION DOES
THE ORDER IF THE 1ST PROPOSED ORDER ISN’T
ACCURATE. COULD BE OPPOSING PARTY.
REQUIREMENTS IF YOU WANT TO REPLY TO AN OPPOSITION TO A
MOTION.
• PAY ATTENTION TO THE TIME THE REPLY TO THE
OPPOSITION IS DUE
• MUST ADDRESS ONLY WHAT WAS IN THE
OPPOSITION.
• NO NEW MATERIAL
20. EFILING
WHAT COUNTIES NOW REQUIRE IT? ALMOST ALL. O.C. HAS BEEN
DOING IT FOR YEARS. THEY ARE GOOD. L.A. ONLY SINCE 2019. NOT SO
GOOD AT IT YET.
WHAT TYPES OF CASES WITHIN EACH COUNTY CAN/MUST EFILE?
HOW TO EFILE
SPECIAL RULES RE YOUR DOCUMENTS ITSELF
SPECIAL RULES FOR NAMING OF YOUR DOCUMENT
SPECIAL RULES FOR THE SIZE OF YOUR DOCUMENT
SPECIAL RULES FOR BOOKMARKING YOUR DOC WITH EXHIBITS
SPECIAL SET UP REQUIREMENTS
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HAVE AN ACCOUNT WITH A SERVICE PROVIDER
HAVE A CREDIT CARD ON FILE WITH SERVICE PROVIDER
FOLLOW UP WITH SERVICE PROVIDER TO CHECK ON YOUR DOC?
FOLLOW UP WITH SERVICE PROVIDER TO GET A CONFORMED COPY
OF YOUR DOC?
BETTER SERVICE PROVIDERS ACTUALLY SEND YOU A COPY
21. INTRO TO DISCOVERY
THE RIGHT TO DISCOVERY
WHEN DOES IT BEGIN
WHEN DOES IT END WHAT IS WITHIN THE
SCOPE OF DISCOVERY?
WHAT KINDS OF DISCOVERY CAN YOU GET SPECIFIC: FORM
INTERROGATORIES (ONLY ONE WE WILL
GO OVER THIS SEMESTER.)
22. PROGRESS OF THE LAWSUIT UP TO THE START OF DISCOVERY
• WHAT IS AN ORDER TO SHOW CAUSE?
• WHAT DOES ‘AT ISSUE’ MEAN?
• WHAT IS A CASE MANAGEMENT CONFERENCE
(CMC)
• WHAT IS A STATUS CONFERENCE?
• SAME BASIC THING AS CMC
• CMC = ORANGE COUNTY
• STATUS CONFERENCE = MOST EVERYWHERELSE •
WHEN DOES THE COURT SET IT?
• CHECK DOCKET ONLINE?
• WHAT HAPPENS AT THE CASE MANAGEMENT
CONFERENCE?
• DO YOU HAVE TO DO ANYTHING AHEAD OF THE
CONF?
A. GIVE/PREPARE WRITTEN NOTICE TO YOUR
OPPONENT OF THE HEARING (IF NOT
ALREADY GIVEN BY THE COURT
DIRECTLY.)
B. PREPARE and FILE YOUR OWN CASE MANAGEMENT
CONFERENCE STATEMENT IN ADVANCE OF THE
HEARING.
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C. SHOULD READY THE FILE FOR YOUR ATTORNEY,WITH
A COPY OF THE FILED CMC ATTACHED SO HE/SHE
KNOWS WHAT TO TELL THE JUDGE ABOUT THE CASE
AT THE HEARING.
D. IF USING COURT CALL FOR THE HEARING, SET
THAT UP WELL IN ADVANCE.
E. AS THE DATE APPROACHES, REMIND YOUR
ATTORNEY TO ATTEND.
F. AFTER THE HEARING, REMIND YOUR ATTORNEY
TO INFORM YOU OF THE RESULTS OF THE
HEARING...USUALLY DATES ARE SET...EITHER
TO COME BACK, THE TRIAL DATES (USUALLY
A TRIAL DATE AND A FINAL CONFERENCE
DATE BEFORE THE TRIAL) OR SOME OTHER
DATES.OFTEN ATTORNEYS FORGET TO SHARE
THIS WITH STAFF AND STAFF THEN CAN’T
ADEQUATELY PREPARE.
end of this portion of the civil litigation timeline for CIV LIT
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