Pre-Trial Motions

Question 1

CA Pre-Trial Motions

Answer 1

Motion to quash summons: motion in response to a Complaint. This special-appearance motion challenges court’s authority to exercise PJ

• used for lack of PJ or inadequate/invalid service
• failure to make a motion to quash in lieu of or simultaneously with an Answer/demurrer waives PJ AND inadequacy of process or service of process

Motion to stay or dismiss: asserts inconvenient forum. Failure to file motion in lieu of or simultaneously with an Answer/demurrer waives right to assert inconvenient forum.

Motion to dismiss for delay in prosecution: failure to file in lieu of or simultaneously with an Answer/demurrer waives right to assert delay in prosecution

Question 2

12(b)(6)

Answer 2

Failure to state a claim

• tests only the sufficiency of P’s allegations (pleading) and does not address the evidence
• court assumes truth of P’s allegations

Question 3

Demurrer (CA)

Answer 3

Tests sufficiency of Complaint: argues that even if P’s facts are all true, no viable cause of action exists under CA law.
Types:
-general: tests prima facie sufficiency of the Complaint
-specific: attacks pleading that is ambiguous or unintelligible

*May demur and Answer at the same time, to all or part of Complaint

Question 4

12(c)- filed after pleadings closed

Answer 4

Motion for judgment on the pleadings

CA: no equivalent, but practice is the same and there is CA case precedent

Question 5

Summary Judgment (any time before trial)

Answer 5

• No genuine issue of material fact - movant’s burden to present evidence or simply point out that other side has insufficient evidence (i.e. no material facts in dispute in the pleadings, depositions, interrogatories, admissions, and affidavits)
• Moving party entitled to judgment as a matter of law
• Timing:
• may be filed up to 10 days before hearing: opposing party must respond no later than 1 day before hearing (“10 and 1”)

Question 6

Summary Judgment (CA)

Answer 6

-CA does not allow movant to merely point out insufficient evidence; must provide separate statement of facts movant claims undisputed, with references to supporting evidence

• timing:
• 75 days before hearing (i.e. 75 day notice period - the longest of all CA motions) and 14 days to respond (“75 and 14”)

Question 7

Default entered by

Answer 7

• clerk if no response and claim for sum is certain
• court - all other cases:
  
  • step 1: clerk enters judgment
  • step 2: court hearing on damages

***CA: “prove up” hearing ex parte - must have given D notice of actual damages

Question 8

Dismissal (voluntary)

Answer 8

Voluntary: P may dismiss once without prejudice by filing a notice of dismissal before D serves Answer or motion for summary judgment - no res judicata. If D answers, need leave of court

***CA: Ps may dismiss own case any time before commencement of trial with permission of court, on paying costs (if any)

Question 9

Dismissal (involuntary)

Answer 9

• before trial, if sanction, then full res judicata. If lack of jurisdiction, venue, failure to join then no res judicata
• at trial, after P’s case if no right to relief shown; res judicata

Question 10

Offer of Judgment

Answer 10

• Any time more than 10 days before trial, only D may serve P offer (irrevocable for 10 days)
• If final judgment not more favorable than offer, then offeree must pay costs subsequent to offer (not applicable if D wins case)

Question 11

Offer of Judgment (CA: 998)

Answer 11

If 998 offer not accepted within 30 days or trial commences, deemed withdrawn

• if not accepted by a party and that party fails to obtain more favorable award, that party pays other’s costs (can include experts)
• EITHER party may make offer
• offers are revocable (Note: counteroffer does not revoke original offer) (no counteroffer in fed, because only D can offer)
• applies even if D winds, unless sham or token offer