PRETRIAL ADJUDICATION + CASE MANAGEMENT AND ALTERNATIVE DISPUTE RESOLUTION Flashcards Preview

CA Civil Procedure > PRETRIAL ADJUDICATION + CASE MANAGEMENT AND ALTERNATIVE DISPUTE RESOLUTION > Flashcards

Flashcards in PRETRIAL ADJUDICATION + CASE MANAGEMENT AND ALTERNATIVE DISPUTE RESOLUTION Deck (20):
1

Preliminary injunctive relief.

As in federal court, a party may seek a court order
maintaining the status quo pending litigation on the merits.

2

Voluntary dismissal.

P can move to dismiss anytime before trial starts. The decision is for the court to make.

3

Is voluntary dismissal a dismissal without prejudice?

No

If P moves for voluntary dismissal after trial starts, it is granted with prejudice, unless the parties agree otherwise or the court finds good cause to dismiss without prejudice.

4

Involuntary dismissal

All courts have authority to dismiss for failure to prosecute, failure to abide by court orders or rule, and for the various reasons that can be raised by demurrer,
motions to quash, etc.

California state courts have discretion to dismiss if the case has not been brought to trial (or defendant has not been served with process) within two years of filing.

5

Mandatory dismissal: in California, the court must dismiss if....

1) the case is not brought to trial within 5 years of filing; OR

  • exclude time when all proceedings were stayed

2) process is not served within 3 years of filing

  • exclude time when a stay made it impossible to serve process.

6

Default and default judgment. D fails to respond to the complaint within 30 days of the effective date of service of process on her. The procedure is very similar to federal court. As in federal court, cannot recover more than you asked for in your complaint.

Must P provide notice for default judgment?

D must be given notice of the application for entry of default.

7

Default judgment can be entered by the clerk without a judge’s involvement if

-- D made no response at all
-- the claim is on a contract or judgment
-- the claim is for a sum certain in money
-- D was not served by publication AND
-- P provides an affidavit stating relevant facts

But if any of those is not true, where must the claimant go to get judgment?

  • To the court itself

8

What does the court do for default judgment?

It holds a hearing and has discretion to enter judgment

9

D may move to set aside default or default judgment and for leave to defend the case, based upon:

  • mistake,
  • inadvertence,
  • surprise, or
  • excusable neglect or because service of process did not result in actual notice to D

10

Motion for summary judgment.

Same as federal court

11

Procedure for Summary Judgment

  • The moving party must file and serve a separate statement of material facts she claims to be undisputed, with supporting evidence for each fact. If she does not, the motion can be denied.
  • If the moving party files and serves such a statement, the opposing party must respond by indicating the facts she believes to be in dispute and supporting evidence for each fact. If she does not, the court may grant summary judgment.

12

Timing for Summary Judgment service

  • The moving party must serve all papers at least 75 days before the hearing on the motion.
  • Opposition papers must be filed at least 14 days before the hearing.
  • Reply papers by the moving party must be filed no more than 5 days before the hearing.

13

Case management conference.

  • Rules of Court require the court to hold initial case management conference within 180 days after filing of complaint.
  • At the conference, the court reviews service, pleadings, discovery issues, potential problems with discovery of electronically stored info (ESI), appropriateness of alternative dispute resolution (ADR), settlement, trial date, etc. Before the conference, parties must meet and confer and file a “Case Management Statement” addressing such issues.
  • Court issues case management order.
  • This is like the Federal Rule 26(f) conference, but there is no requirement that the parties form a discovery plan to submit to the court.

14

“Fast track.”

Court reviews each case to determine suitability for case management program. Such cases are actively managed to meet goals of disposition.

15

“Fast track.” Unlimited cases:

75% to be disposed of within 12 months of filing, 85% within 18 months of filing, and 100% within 24 months of filing.

16

“Fast track.” Limited cases:

90% within 12 months, 98% within 18 months, 100% within 24 months.

17

Additional conferences

The court may order mandatory settlement conference (or the parties may request one).

Parties submit settlement conference statement in advance, detailing the demand or offer. Additional conferences may be held as needed.

18

Sanctions

Court may sanction party or attorney for failing to comply with rules or orders.
E.g., may dismiss defendants not served within 60 days of filing. Sanction terminating the case is OK only if the failure to comply was the fault of the party and not the attorney.

19

ADR

  • Each county’s Superior Court has an ADR
    program, to reduce court congestion.
  • In larger counties, most unlimited civil cases are
    submitted to “judicial arbitration” if the judge is of the opinion that P will ultimately obtain $50,000 or less. But consumer class actions and probate cases cannot be sent to judicial arbitration.
  • In judicial arbitration the court refers the case to an arbitrator, who holds a hearing; rules of evidence do not apply. Her decision becomes a judgment unless a party demands trial de novo. But if that party does not get a better result in trial than in the
    arbitration, she may be liable for the other side’s costs from the date of the rejection, the other side’s expert witness fees, and interest on the claim from the date of rejection (not from date of the judgment).
  • With judicial arbitration, the parties have discovery rights.

20

“contractual arbitration,”

  • In “contractual arbitration,” parties agree in writing to arbitrate a dispute.
  • Such contracts are valid under Federal Arbitration Act (FAA) and state law if not the product of unconscionability.
  • A party can ask federal or state court to order arbitration per the agreement and can ask a court to confirm the arbitrator’s decision.
  • That decision can be vacated only on limited grounds, like fraud, but usually not for legal error. (Federal courts will vacate for arbitrator’s manifest disregard of law (CA courts will not).)
  • CA law does not allow consumer contracts to waive class treatment and thus to require individual arbitration of small claims.
  • FAA preempts this law, and allows contracts to require individual (not class) arbitration of small claims by consumers.