CA Civ Pro: Service, Pleadings, Discovery

Who Can serve process

Anyone who is at least 18 years of age and is a nonparty

CA Methods for Service (In-State)

Personal service; substituted service; service by mail; corporation service; service by publication

CA Substitute Service

Only available if personal service cannot be had “with reasonable diligence.” Process must be left with a competent member of the household who is at least 18 years of age. The Person must be informed of the process’ contents. Process must also be mailed by first-class mail with postage prepaid to the defendant. Substituted service is deemed effective on the 10th day after mailing

Service by Mail

Must include a copy of the summons and two copies of acknowledgement (waiver form) with a self-addressed, stamped envelope with the plaintiff’s address. This is considered service and not waiver of service. D has 20 days to return the form and service is deemed complete when D executes the waiver

Service on Corporations or Other Businesses

Can be served by delivering process to an agent for service of process or to an officer or general manager. The agent may be served personally, or process may be left with someone apparently in charge at the agent’s office during the usual office hours. A registered agent is served at the registered office

Service by Publication

Only available if there is an affidavit from P’s attorney showing that D cannot be served and demonstrating that P’s attorney used reasonable diligence in trying to serve D any other way

Service Outside of CA but in the US

Can be accomplished by any in-state method. However, service by mail only requires that the postage is prepaid and that a return receipt is requested (no acknowledgment form needed). This is deemed effective on the 10th day after mailing.

Serving Process Outside of the US

Uses the FRCP out of US service rules

Immunity from Service

CA does not have immunity from service when the defendant is in the state to take part in a court proceeding.

Service of Documents After Process

Much less formal. Can be delivered or mailed. Electronic delivery is OK if the parties agree. If mailed, five days are added to the time required to respond. 10 days are added if the service is out of state

Frivolous Litigation Safe Harbor

Unlike FRCP 11, the 21-day safe harbor provision also applies when the court raises the issue sua sponte

Bad Faith and Frivolous Tactics

The court can order a party or attorney or both to pay expenses and attorneys fees incurred because of bad faith or frivolous tactics. Frivolous means something was raised completely without merit or asserted for the sole purpose of harassing the other party. A party or the court can make a motion for this, but there must be an opportunity for the offending party to be heard. the 21 day safe harbor rule applies

Contents of the Complaint:

Must contain: (1) a statement of (ultimate) facts constituting the cause of action, stated in ordinary and concise language; and (2) a demand for judgment for the relief that the pleader claims to be entitled. P need not allege SMJ. In a limited civil case, the caption of the complaint must state that the case is limited civil

Pleading Damages

P must generally state the amount of damages claimed. P is forbidden from stating a damages amount in a complaint for personal injury or wrongful death. P is forbidden from stating the amount in the complaint when claiming punitive damages

Statement of Damages

If P claims punitive damages, wrongful death, or personal injury, D requests a statement of damages. P must reply within 15 days, after which D can move for a court order to compel. P must serve the SOD on defendant before taking the defendant’s default

Fact Pleading

Ultimate facts are facts that the jury or judge must find for the party to prove its case. P needs to state the ultimate facts on each element of each cause of action

Heightened Pleading Circumstances

Heightened pleading requirements apply to circumstances constituting fraud, civil conspiracy, tortious breach of contract, unfair business practices, and products liability claims among multiple defendants resulting from exposure to toxins. These must be pleaded with particularity.

Fictitious Defendants

If P is generally unaware of the identify of a defendant, she may name the defendant as a Doe defendant. P must allege that she is unaware of D’s true identity and must state the cause of action against the Doe defendant. This triggers special SoL issues.

Verified Pleadings

Verified pleadings are rare, but must be signed under oath by the party. Verified pleadings can be treated as evidence for summary judgment. Required in shareholder derivative suits and suits against government entities

Timing of Defendant’s Response

Defendant must respond in appropriate way within 30 days after service is deemed complete, rather than the 21 days of the FRCP

General Demurrer

Can be used to assert some defenses, most notably the failure to state facts to constitute a cause of action. The court takes factual allegations as true, limits its assessment to the complaint and matters of judicial notice, and analyzes whether P has a case if all facts are true. Courts generally let Ps try again after granting a general demurrer. Lack of SMJ and affirmative defenses not raised in the answer can be raised in a general demurrer.

Judgment on the Pleadings

Like demurrer, but raised after the defendant has pleaded and time for demurrer has expired. A general demurrer is considered a pleading.

Special Demurrer

Not available in limited civil cases. Can be used to raise the following defenses: (1) the complaint is uncertain, unambiguous, or unintelligible; (2) the complaint is unclear about the theories of liability asserted against each defendant; (3) the lack of legal capacity; (4) the existence of another case between the same parties on the same cause of action; (5) a defect or misjoinder of the parties; and (6) a failure to plead whether a contract is oral or written. These defenses can be raised in the answer and are waived if not raised in either the demurrer or the answer

Demurrer Terminology

A demurrer is “sustained” or “overruled” rather than “granted” or “denied”

Demurrer Meet and Confer: Failure to meet

Before filing any demurrer, the parties must meet and confer at least five days prior to the filing of the demurrer. If the parties cannot meet in that time, D gets an automatic 30-day extension of time in which to answer or demur. To get this extension, D must file and serve a declaration under oath that (1) a good faith effort to meet and confer was made; and (2) states why the parties could not meet on or before the date of the demurrer is due. The 30 day extension runs from the time the demurrer was due

Demurrer Meet and Confer: Actual meeting

If the parties to meet and confer, but the defendant files the demurrer, the defendant must include a declaration under oath stating either (1) that the parties met and could not resolve the issues; or (2) that the other party failed to meet and confer in good faith

Matters not raised in Demurrer

A defendant must raise all matters in the demurrer. If D properly demurs, and the Court allows P to amend the complaint, D cannot demur to this amended complaint on grounds that were available to attack the first complaint

Motion to Quash Summons, Generally

A motion to quash summons is used to assert: (1) lack of PJ; (2) improper process; and (3) improper service of process. If D makes a motion to quash service of summons, D makes a special appearance that does not constitute consent to PJ

Waiver of Motion to Quash Summons

D waives the three defenses if the motion is not made before or with a demurrer, answer, or motion to strike. D also waives these defenses by making a general appearance

General Appearance

A general appearance is one that engages the merits of the case or asks the court for relief, such as the answer, a demurrer, a motion to strike, a motion to transfer venue, or a motion to reclassify the case

Answer and Lack of PJ

A defendant cannot file an answer in which he asserts lack of PJ, although this would be OK in federal court. The lack of PJ must be asserted before the answer. D can file a motion to quash service of summons at the same time as a demurrer, answer, or motion to strike.

Denial of Motion to Quash

If the Court denies a motion to quash, D must “plead” within 15 days. This means filing a demurrer or an answer

Appealability of motion to quash service of summons

The only way to seek review of the denial of the motion to quash is to seek write of mandate from the court of appeal

Motion for FNC

The motion is waived if it is raised after a demurrer or motion to strike. It may be made in the defendant’s answer

Motion to Strike

A motion to strike can be used to strike irrelevant, false, or improper matters just like in federal court.

Anti-SLAPP motion to Strike

an Anti-SLAPP motion to strike shifts the burden to the plaintiff to show a probability of winning the case on the merits

Special Rules for the Answer

A general denial is permissible if consistent with the rules about frivolous litigation. In stating affirmative defenses, D must state the ultimate facts sufficient to constitute an affirmative defense. If P filed a verified complaint, D must file a verified answer. The answer cannot include a demand for recovery against the plaintiff; this must be included in a cross-complaint

Timing of the Answer

D has 30 days after service is deemed complete to answer or demur or make a motion

Claims by the Defendant

A defendant can assert a claim: (1) against the plaintiff; (2) against a co-defendant; or (3) against an impleaded third-party defendant. All of these are “cross-complaints”. A cross complaint must be a separate document from the answer.

Cross-Complaint against the Plaintiff

A cross-complaint against the plaintiff must be filed as a separate document before or at the same time as the answer. If the CC arises from the same T/O as P’s cause of action against D, it is compulsory. Otherwise, it is permissive

Cross-Complaint Against a Co-Party (CCCP)

CCCP may be filed any time before the court has set a trial date. It must arise from the same T/O as the underlying dispute and is never compulsory

Cross-Complaint Against TPD

Must be filed before the court has set a trial date and is never compulsory

Responding to a Cross-Complaint

Any response must be made within 30 days of when service of the cross-complaint is effective.

Service of Process Requirements for Cross-Complaints

If the cross-complaint is against someone who has not yet appeared in the case, it must be served with a summons

Right to Amend Pleadings

P has a right to amend before D files an answer or demurrer, or even after demurrer is filed but before a hearing on the issue raised by the demurrer. However, this applies only if P amended the complaint no later than the date for filing an opposition to the demurrer.

Leave to Amend

Any party may seek leave to amend at any time. Same standards and rules as in federal court.

Limits on Amended Pleadings in Response to Demurrer

There is a limit of three amended complaints in response to a sustained demurrer unless the claimant shows additional facts to be pleaded to cure the problem

Relation Back and Fictitious Defendants

Relation back is permissible if: (1) the original complaint was filed before the SoL ran and contained charging allegations against the Doe defendants; (2) P was genuinely ignorant of the identity of the Doe defendants; and (3) Plaintiff pleaded such ignorance in the original complaint. If all requirements are met, P can use relation back if substituting the true defendant within three years of filing

CA Required Disclosures

A party may demand that initial disclosures be made. Once demanded, every party who has appeared, including the party making the demand, must disclose within 60 days: (1) the contact information of persons likely to have discoverable information (except experts); and (2) copies or descriptions of documents or ESI in the party’s control (except impeachment material). Unlike FRCP, the material is not limited to information that will be used to support a claim or defense

Supplementing Initial Disclosures

A party must make initial disclosures on information then reasonably available. Subsequent supplemental demands may be made to get later-acquired information

Discovery Tools Delay

P must wait until D has appeared or 10 days after service of process (whichever is first) before serving interrogatories or a request to produce without leave of the court

Depositions

Unlike in federal court, there is no presumptive limit on the number of depositions to be taken. There is still a presumption that a deposition consists of one day of seven hours

Electronically Stored Information (ESI)

A deponent who is asked to produce ESI that is password protected or otherwise inaccessible must provide either: (1) direct access to the ESI; or (2) a translation of the ESI in a usable form

Interrogatories

Basics are the same as FRCP. CA has form interrogatories approved by the Judicial Council. No limit to the number of form interrogatories that can be served on other parties. If a party uses special interrogatories, they are limited to 35 (including subparts) in an unlimited civil case. More may be served with a declaration of need, but the responding party can seek a protective order

Requests to Produce

No statutory limit on how many requests to produce may be served without court permission in an unlimited civil case, but a party can seek a protective order. A party can request a desired form (hard or electronic) of ESI. For nonparties, must notice the nonparty and issue a subpoena duces tecum. For business records, a business can be served with a subpoena without taking a deposition

Medical Examination

A court order is required to compel P to submit to a medical examination. A defendant has the right to demand one physical examination of P in a personal injury case. If the exam is physical, the examined party’s lawyer has the right to attend the examination. If the examination is mental, the lawyer can only attend if allowed by court order.

Requests for Admission

RFAs are the same as federal. Same limits for RFAs that apply to interrogatories in an unlimited civil case. There is no limit on RFAs for genuineness of documents

Discovery in Limited Civil Cases

When P serves process, she includes a completed form questionnaire containing basic information about the case and a blank form for D to complete. Beyond that, one deposition may be taken. The parties can also ask for a combined total of 35 interrogatories, inspection demands, and RFAs. Shortly before trial, a party can request that the opponent disclose the witnesses and evidence it intends to produce at trial.

Supplemental Discovery in Unlimited Civil Cases

No standing duty to supplement discovery responses so long as the information given was accurate and complete when given. However, a party can propound a supplemental interrogatory to elicit later-acquired information bearing on answers previously made. Parties can also propound a supplemental demand for inspection. Supplemental discovery is limited to two times before the trial date is set and one time after the trial date is set.

Scope of Discovery Standard

A party can discover anything “relevant to the subject matter involved in the pending action”. Discoverable things extend to things that are “reasonably calculated to lead to the discovery of admissible evidence.”

Discovery and Privilege in CA

Functions exactly the same as federal court

Privacy limits on discovery

CA constitution recognizes a right to privacy that can be claimed to limit discovery. The court balances the need for privacy against the need for information

Work Product in CA

Unlike FRCP, work product in CA is limited only to material generated by an attorney or her agent. A pro se party can generate work product if it would constitute work product if made by an attorney

Expert Witnesses

After the trial date is set, any party may request the simultaneous exchange of expert witness information. Then, each party must exchange a list of experts to be called at trial, declare the nature and substance of the testimony, and the expert’s qualifications. Reports by the experts may also be demanded. A party may then take the expert’s deposition. If a party does not comply, the court may exclude the expert from testifying. Generally, information about consulting experts is not discoverable

Enforcement of Discovery Rules Generally

Before the case management conference, parties must meet to discuss topics such as discovery and potential problems with ESI. In addition, the parties generally must meet and confer to work out problems before seeking court order

Sanctionable Parties

The court may sanction anyone, including a party and attorney, who misuses the discovery process. The person to be sanctioned must given notice and a chance to be heard

Types of Sanctions

Available sanctions include: (1) monetary sanctions (expert/attorney’s fees); (2) an establishment order (taking matters as established at trial); (3) refusal to allow a party to support its position with evidence at trial; (4) striking pleadings; (5) dismissing the plaintiff’s case; or (6) entering default judgment against the defendant. A court will usually start with monetary sanctions and move through the hierarchy, but it is has broad discretion in selecting the appropriate sanctions

Seeking Sanctions for Discovery Misuse

When seeking sanctions for discovery misuses, the seeking party must indicate the type of sanction sought in the motion

Protective Orders

As in FRCP, a party may seek a protective order to protect against unwarranted annoyance, embarrassment, oppression, burden, or expense

Objecting to ESI Accessibility

A party can object that ESI is not reasonable accessible because of undue burden or expense, but she must identify the category of sources that are not accessible