Syllabus - Hastings College of the Law

Contact Information:
Office: 200 McAllister, Room 331
Office Phone: (415) 581-8809
Cell Phone: (510) 872-3109
Email: loisws@aol.com
CALIFORNIA CIVIL PROCEDURE
Hastings College of the Law – Spring 2013
Prof. Lois Schwartz
Tuesdays 1:10-3:20 p.m. and Thursdays 1:10-2:10 - Room H
Texts: Levine, Slomanson & Shapell, CALIFORNIA CIVIL PROCEDURE (Thomson/West 4th ed.
2011) and Kane & Levine, CIVIL PROCEDURE IN CALIFORNIA (Thomson/West 2011 edition) are
required. A course reader will also be available.
Class Attendance and Participation: Attendance is mandatory. Students will be responsible
for presenting cases on assigned days.
Basic Information: This is a three-unit course. Students are required to attend a California state
court proceeding or an administrative hearing and to submit a two-page report on your
observations on the last day of class.
Final Course Grade, Examinations, and Exercises: The writing assignments are 33% of your
final course grade and the final exam is 67% of your final course grade. Writing assignments
total 50 points. Final exam totals 100 points.
Exercises: (1) Legal research worksheet due January 29; (2) Form complaint due February 12;
Motion for Summary Judgment due April 2; (4) Court visit and observation of a civil calendar,
hearing, or trial at your convenience – worksheet is due in our last class, April 18.
Sources of Law:
California Code of Civil Procedure (CCP) is the main source of statutory authority.
California Rules of Court (CRC) also apply; they focus on format and procedure.
Local Rules of Court. California has 58 counties and each has its own trial court system
(Superior Court). Each Superior Court promulgates its own rules of court, subject to preemption
under California Rule of Court 3.20. Local rules must be consistent with state rules. They are
available from the Superior Court (usually on a website or in pamphlet form) or on other
websites. The best website is usually http://www.courtinfo.ca.gov.
The U.S. Constitution and the California Constitution, article I §§ 1-16 and art. VI §§ 1-4, 6-
13 are also relevant to this course.
Website: http://www.tjsl.edu/slomansonb/CalCivPro.html?q=faculty/slomansonb/CalCivPro.html
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Learning outcomes:
1. Understanding of the history and practice of California civil procedure.
2. Familiarity with litigation rules and techniques, and alternative dispute resolution.
3. Mastery of specialized research skills applicable to California litigation (legal research
assignment).
4. Practice in drafting a complaint (complaint exercise) and formulating a discovery plan
(discovery exercise).
5. Practice in drafting a motion for summary judgment (summary judgment exercise).
6. Actual exposure to trial court practice and procedure (court observation assignment).
7. Development of skills in client interviewing, investigation, counseling, negotiation, problem
solving, litigation, and advocacy.
8. Increased understanding of the ethical standards of conduct expected of members of the legal
profession, and the ability to recognize ethical dilemmas and resolve them appropriately.
9. Awareness of how courts interpret and apply procedural rules.
Week One: Thursday 1/10
CALIFORNIA CIVIL PROCEDURE SYLLABUS
Thursday: Chapter One (Introduction), pages 1-36
Relevant statutes: CCP §§ 32.5-36, 77, 85-86, 88, 90-95, 284, 410.10.
Relevant Rule of Court: CRC 2.30.
Cases: Schmier, p. 9 (selective publication of court of appeal decisions); Vidrio, p. 15 (interplay
between California Rules of Court, local rules, and statutes).
A supplementary note on the unusual application of precedent in California:
“Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow
decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no
sense. The decisions of this court are binding upon and must be followed by all the state courts of
California. Decisions of every division of the District Courts of Appeal are binding upon all the justice
and municipal courts and upon all the superior courts of this state, and this is so whether or not the
superior court is acting as a trial or appellate court. Courts exercising inferior jurisdiction must accept
the law declared by courts of superior jurisdiction.”
Auto Equity Sales, Inc. v. Super. Ct. of Santa Clara County, 57 Cal. 2d 450, 455 (1962).
Continued . . .
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Week Two: Tuesday 1/15 & Thursday 1/17
Distribution of Assignment One: Legal Research Worksheet. Due 1/29.
Assignment Four: Court visit and observation of a civil calendar, civil hearing, or civil trial at
your convenience – worksheet (in reader) due in last class, 4/18.
Tuesday & Thursday: Chapter Two (Jurisdiction, Venue & Conflict of Laws)
Section A. Pages 37-47
Subject matter jurisdiction: Classification of cases as limited
or unlimited
Section B.1 Pages 47-58 Jurisdiction over persons: bases of personal jurisdiction.
Section B.2 Pages 58-70 Service of process.
Section B.3 Pages 70-78 General and special appearances
Cases: Stern, p. 40 (classification as unlimited v. limited civil case); Snowney v. Harrah’s, p. 49
(specific jurisdiction [in contrast to general jurisdiction] over nonresident defendant); Espindola,
p. 58 (reasonable diligence must precede substituted service of process); Dill, p. 62 (must serve
designated individual representative, not just company generally); Air Machine Com SRL v.
Superior Ct., p. 71 (what constitutes a general appearance and therefore precludes motion to
dismiss for lack of personal jurisdiction).
Relevant statutes: CCP §§ 85-88; CCP §§ 403.010-403.070; CCP §§ 410.10 (CA long-arm
statute) and following. CCP §§ 413.10-417.40 (proper service on individuals and corporations),
CCP §§ 1014 (submission to jurisdiction), 418.10 (motion to quash service).
Continued . . .
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Week Three: Tuesday 1/22 and Thursday 1/24
Tuesday: Chapter Two, continued
Section C.1 Pages79-87 Venue: Proper county
Section C.2 Pages 87-97 Forum non conveniens
Section D.1 Pages 97-99 Conflict of laws: Introduction
Section D.2 Pages 99-109 Conflict of laws: Tort actions
Section D.3 Pages109-116 Conflict of laws: Contract actions
Cases: Brown, p. 79 (mixed actions; conflict between special and general venue provisions);
Guimei v. GE Co., p. 88 (forum non conveniens); Kearney, p. 99 (retaining CA jurisdiction when
tortious conduct [undisclosed wiretapping] is illegal in this state but not another); Brack, p. 109
(choice of law provision in contract).
Relevant statutes: CCP §§392-398 (venue); CCP §§ 410.10, 410.30, 410.40, 418.10(a)(2)
(FNC).
Thursday: Chapter Three (Pleadings and Joinder)
Section A.1 Pages 117-126 Special filing and pre-filing requirements.
Section A.2 Pages 126-139 Pleading causes of action; elements of a complaint.
Cases: City of Stockton, p. 120 (filing government claim); Bockrath, p. 129 (precision in
pleading for each element of cause of action); Dept. of Transportation, p. 134 (Judicial Council
form complaint is not demurrer-proof).
Relevant statutes: CCP §§ 905 (government claims), 422.10, 422.30, 425.10, 425-425.12 (form
pleadings), 452 (construction of pleadings).
Note especially: CCP § 425.10(a)(1) (“ordinary and concise language”) and CCP § 452 (liberal
construction of pleadings).
Relevant Rule of Court: Rule 3.1112 (formerly CRC 312) (format).
Note: The court can also impose pre-filing requirements on vexatious litigators; such actions are
distinguishable from administrative requirements that a litigant file a claim with the proper
government agency prior to bringing a civil suit in superior court.
Continued . . .
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Week Four: Tuesday 1/29 & Thursday 1/31
Tuesday: Chapter Three, continued.
Assignment One (Legal Research Worksheet) due today.
Distribution of Assignment Two: Draft a Form Complaint. Due 2/12.
Section A.3 Pages 139-153 Demand for judgment or prayer for relief as final
component of the complaint
Section A.4 Pages 153-154 Economic litigation procedure (limited civil cases)
Note: The complaint consists of a heading, statement of jurisdiction, causes of action, prayer
for relief [also called a demand for judgment]; and signature. It must be served with a
summons pursuant to CCP §§ 412.20 et seq. and the party must provide proof of service to
the court.
Cases: Schwab, p. 141 (P will take nothing by default judgment for personal injury unless
Statement of Damages is filed prior to judgment); College Hosp., p. 147 (substantial probability
standard for alleging punitive damages against health care provider).
Relevant statutes: CCP § 92-98, 425.10 (demand for judgment), § 425.11 (separate statement
of damages for personal injury/wrongful death claims), § 425.115 (punitive damages); § 425.13
(causes of action against health care providers).
Thursday: Chapter Three, continued
Section B.1 Pages 155-160 Responses: General demurrer
Section B.2 Pages 160-163 Responses: Special demurrer
Section B.3 Pages 163-164 Responses: Motion to strike
Section B.4 Pages 164-165 Reponses: Judgment on the pleadings
Section B.5 Pages 165-167 Motion Practice
Cases: Sheehan v. SF 49ers, p. 156 (demurrer).
Relevant statutes: § 472a (general demurrers); § 430.10(f) (special demurrers); CCP §§ 435-
437 (motions to strike); CCP § 438 (judgment on the pleadings).
Relevant Rule of Court: Rule 3.1320 (formerly CRC 325).
Continued . . .
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Week Five: Tuesday 2/5 & Thursday 2/7
Tuesday: Chapter Three, continued
Section C.1 Pages 167-168 The answer: general and specific denials
Section C.2 Pages 168-201 The answer: affirmative defenses, including statute of
limitations
Section D Pages 201-210 Cross-complaint
Cases: Advantec Group, p. 169 (affirmative defense based on licensing); Norgart , p. 174
(affirmative defense based on start date for SOL); Jolly v. Eli Lilly, p. 179 (SOL period starts
when P suspects or should suspect that she has been wronged); Lantzy v. Centex Homes, p. 189
(effect of latent defect on SOL); Align Technology, Inc. v. Tran, p. 201 (cross-complaint)
Relevant statutes: CCP § 1014 (D appears by filing an answer); CCP § 431.30 (answer);
statutory limitations periods vary, depending on cause of action.
Thursday: Chapter Three, continued
Section E.1 Pages 210-212 Amendments: General practice
Section E.2 Pages 212-227 Relation back
Section F.1 Pages 228-235 Truth in Pleading: Frivolous pleadings
Section F.2 Pages 236-251 Truth in Pleading: Anti-SLAPP motions
Cases: Davaloo, p. 213 (relation back and revival period for claims); Fuller v. Tucker, p. 222;
(Doe defendants); Li v. Majestic Industry Hills, LLC, p. 230 (frivolous pleadings); Flatley v.
Mauro, p. 241 (motion to strike under anti-SLAPP statute).
Relevant statutes: CCP §§ 472 (right to amend complaint without leave of court); CCP § 473
(amendment by leave of court); CCP § 474 (Doe defendants); CCP §§ 127-128.5 (frivolous
pleadings and sanctions); §§ 425.16-425.18 (Anti-SLAPP actions).
Continued . . .
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Week Six: Tuesday 2/12.
Thursday 2/14 – no class (this Thursday is treated as a Monday)
Assignment Two (Form Complaint) due today 2/12.
Tuesday: Chapter Three, continued
Section G.1 Pages 269-270 Special Joinder Devices: Consolidation
Section G.2 Pages 271-276 Special Joinder Devices: Interpleader
Section G.3 Pages 276-284 Special Joinder Devices: Intervention
Section G.4 No reading assigned Special Joinder Devices: Class actions and representative
suits.
Cases: Morgan Hill v. Brown, p. 271 (interpleader); San Francisco v. State, p. 276
(intervention).
Relevant statutes: CCP §§ 427.10 (joinder of causes of action by plaintiff); 428.10-428.70
(joinder of parties); CCP § 1048 (consolidation); CCP §§ 378-379 (permissive joinder of
parties); CCP § 386 (interpleader); CCP § 387 (intervention); CCP § 389 (compulsory joinder);
CCP § 382 (class action).
Week Seven: Tuesday 2/19 & Thursday 2/21
Tuesday & Thursday: Chapter Four (Discovery)
Section A Pages 306-311 Discovery philosophy
Section B.1 Pages 311-315 Scope of discovery: Informal discovery
Section B.2 Pages 315-320 Scope of discovery: Relevance and admissibility
Section B.3 Pages 320-350 Scope of discovery: Protection from discovery.
Cases: Greyhound, p. 307 (test for objectives of Discovery Act); Pullin, p. 312 (distinguishing
investigation from formal discovery); Stewart, p. 316 (defining what might reasonably lead to
admissible evidence); Pioneer Electronics, p. 321 (privileged information); Hernandez, p. 329
(must ID privileged documents even if there is a right to refuse to produce them later); RICO v.
Mitsubishi, p. 335 (attorney-client privilege); County of Los Angeles, p. 341 (dispute over expert
witness).
Relevant statutes: CCP § 2016.010 et seq. (California Discovery Act), CCP § 2017.010 et seq.
(scope); §§ 2018.010 et seq. (attorney work product), §§ 2019.010 et seq. (methods & sequence
of discovery); §§ 2020.010 et seq. (nonparty discovery).
Relevant Rules of Court: Rule 3.1000 (formerly CRC 331) (format of supplemental and further
discovery), Rule 3.1020 (formerly CRC 335) (format of discovery motions), Rule 3.1030
(formerly CRC 341) (sanctions for failure to provide discovery).
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Week Eight: Tuesday 2/26 & Thursday 2/28
Tuesday and Thursday: Chapter Four, continued
Section C.1 Pages 350-358 Discovery devices: Interrogatories
Section C.2 Pages 358-366 Discovery devices: Depositions
Section C.3 Pages 366-374 Discovery devices: Physical and mental examinations
Section C.4 Pages 374-381 Discovery devices: Inspection of documents and things
Section C.5 Pages 381-389 Discovery devices: Requests for admission
Section C.6 Pages 389-394 Discovery devices: Continuing discovery
Section C.7 Pages 394-402 Discovery devices: Electronic discovery
Section D Pages 403-409 Experts
The case book provides concise explanations and good cases illustrating the types of discovery.
Read the explanatory material, but the cases are not required reading.
Cases: Sinaiko Healthcare Consulting, Inc., p. 352; Maldonado v. Superior Ct., p. 360, Vinson
v. Superior Ct., p. 367; Stadish v. Superior Ct., p. 374; New Albertsons, Inc. v. Superior Ct., p.
382; Biles v. Exxon, p. 389; Toshiba v. Superior Ct., p. 397; Bonds v. Roy, p. 404.
Relevant statutes: CCP §§ 2030.010 et seq. (interrogatories); CCP §§ 2025.010 et seq.
(depositions); CCP §§ 2032.010 et seq. (physical & mental examinations); CCP §§ 2031.010 et
seq. (inspection & production of documents, things, land, and other property); CCP §§ 2033.010
et seq. (requests for admission); CCP § 2017.730 (use of technology in conducting discovery);
CCP §§ 2034.010 et seq. (exchange of expert witness information).
Continued . . .
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Week Nine: Tuesday 3/5 & Thursday 3/7
Tuesday: Chapter Four, continued
Section E.1 Pages 409-415 Systematic oversight: Meet and confer requirement
Section E.2 Pages 415-426 Systematic oversight: Discovery sanctions
Section E.3 Pages 426-435 Systematic oversight: Protective orders
Section E.4 Pages 435-442 Systematic oversight: Discovery completion
Section E.5 Pages 442-446 Systematic oversight: Punitive damages
Cases: Obregon, p. 410 (mandatory attempts at informal resolution of conflict); Doppes v.
Bentley Motors, p. 418 (discovery sanctions); Planned Parenthood, p. 427 (protective orders);
Fairmont Ins. Co., p. 435 (completion of discovery); Jabro, p. 442 (discovery of financial
information for purposes of punitive damages).
Relevant statutes: California Government Code § 68607 provides authority for judges to
manage cases under the Trial Court Delay Reduction Act; CCP § 2023 (discovery sanctions);
CCP §§ 485.050 & 486.070 (protective orders).
Relevant Rules of Court: Rule 3.713 (formerly CRC 208) (delay reduction goals); Rule 3.714
(formerly CRC 209) (differentiation of cases); Rule 3.715 (formerly CRC 210 (case evaluation
factors), and Rules 720–3.730 (formerly CRC 212) (case management rules); see also Rule
3.1380 (formerly CRC 222) (mandatory settlement conferences) and Rule 3.1385 (formerly CRC
225) (notification of settlement). See also Rule 2.30 (formerly CRC 227) (sanctions for rules
violations in civil cases).
Thursday: Chapter Five (Disposition without Trial)
Section C.1 Pages 503-505 Case Management: Delay reduction (Fast Track)
Section C.2 Pages 505-511 Case Management: Sanctions
Section D.1 Pages 511-519 Dismissal: Voluntary dismissal
Section D.2 Pages 519-529 Dismissal: Involuntary dismissal
Section E Pages 530-540 Default and default judgment
Cases: Garcia v. McCutcheon, p. 506 (penalties for failure to comply with Fast Track); Franklin
Capital Corp., p. 511 (voluntary dismissal); Landry, p. 520 (involuntary dismissal); Tamburina,
p. 524 (exception to five-year dismissal provision); Fasuyi, p. 530.
Relevant statutes: The Trial Court Delay Reduction Act of 1986 is the basis for local fast-track
rules. It is codified at California Government Code § 68603 et seq. CCP § 581 (dismissal); CCP
§§ 583.130-583.520 (dismissal for delay in prosecution); CCP §§ 580, 585 & 585.5, 586 (default).
Relevant Rules of Court: Rule 3.1340 (formerly CRC 372) and Rule 3.1342 (formerly CRC
373) (motions to dismiss for failure to prosecute).
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Week Ten: Tuesday 3/12 & Thursday 3/14
No Class – Spring Break
Week Eleven: Tuesday 3/19 & Thursday 3/21
Tuesday: Chapter Five, continued
Distribution of Assignment Three: Motion for Summary Judgment. Due 4/2.
Section A Pages 448-492 Arbitration
Section B Pages 493-503 Mediation
Section F Pages 540-541 Settlement & Offer of settlement
Section G.1 Pages 575-578 Summary judgment: State-federal comparison
Section G.2 Pages 579-588 Summary judgment: California essentials
Cases: Kojababian, p. 584; Moncharch, p. 451 (contractual arbitration); Engalla, p. 463
(compelling arbitration); Armendariz, p. 473 (public policy objections to arbitration); Porreco v.
Red Top, p. 487 (judicial arbitration); Foxgate, p. 495 (confidentiality in mediation); Robinson v.
Woods, p. 579.
Relevant statutes: CCP §§ 1281, 1281.2, 1281.4 (enforcement of arbitration agreements); CCP
§ 437c (MSJ/MSA)
Relevant Rule of Court: Rules 10.780 et seq. (formerly CRC 1580) (administration of ADR
programs), Rules 3.810 et seq. (formerly CRC 1600 et seq.) (judicial arbitration); CCP § 998
(costs following rejection of offer to settle). Rule 3.1350 (formerly CRC 342) (MSJ/MSA).
Thursday: Chapter Five, continued
Section H.1 Pages 588-595 Relief from Orders and Judgments: Reconsideration
Section H.2 Pages 595-605 Relief from Orders and Judgments: Relief from Judgment
Cases: Le Francois v. Goel, p. 589 (motion for reconsideration); Zamora, p. 596 (motion for
relief from judgment based on mistake, inadvertence, surprise, or excusable neglect).
Related Statutes: CCP § 1008 (reconsideration); CCP §§ 473(b) (relief from judgment).
Continued . . .
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Week Twelve: Tuesday 3/26 & Thursday 3/28
Tuesday: Chapter Six (Trial)
Section A.1 Pages 607-626 Obtaining Trial by Jury: Right to trial by jury
Section A.2 Pages 626-643 Obtaining Trial by Jury: Jury Venire
Section A.3 Pages 643-655 Obtaining Trial by Jury: Jury Panel
Relevant statutes: CCP § 592 (jury trial), CCP § 598 (precedence of issues), CCP § 607-630
(trial by jury); CCP § 631 (waiver of jury trial/demand for jury trial); Cal. Const. art. I, § 16.
Cases: Crouchman, p. 608 (P has no right to appeal from small claims judgment; D may obtain
trial de novo in Superior Court); Grafton, p. 616 (waiver of right to trial by jury); People v.
Burgener, p. 627 (composition of jury); Williams, p. 634 (cross section of community); People v.
Garcia, p. 646 (cognizable groups).
Thursday: Chapter Six, continued
Section B.1 Pages 655-666 Advising the Jury: Instructions
Section B.2 Pages 666-669 Advising the Jury: Commenting on the evidence
Section C Not assigned Verdicts
The materials at pages 669-681 relating to jury verdicts and impeachment of jury verdicts is very
interesting, but is not required reading.
Case: Mitchell v. Gonzales, p. 657 (jury instructions must reflect current law).
Relevant statutes: CCP § 607a (proposed jury instructions: CCP § 608 (charge to the jury);
CCP § 613 (jury deliberation); CCP § 618 (verdict; polling the jury).
Relevant Rules of Court: Rule 3.1540 (examination of jurors in civil case); Rule 2.1055
(proposed jury instructions); Rule 2.1050 (Judicial Council jury instructions); Rule 2.1008
(excuses from jury service).
Continued . . .
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Week Thirteen: Tuesday 4/2 & Thursday 4/4
Tuesday: Chapter Six, continued; Chapter 7 (Provisional Remedies)
Assignment Three (Motion for Summary Judgment) due today 4/2.
Section D.1 Pages 681-687 Judicial Control of the Jury: Nonsuit
Section D.2 Pages 687-688 Judicial Control of the Jury: Directed verdict
Section D.3 Pages 689-694 Judicial Control of the Jury: JNOV
Section D.4 Pages 694-705 Judicial Control of the Jury: Motion for new trial
Cases: Panico, p. 682 (nonsuit); Dailey, p. 687 (directed verdict); Garretson, p. 689 (JNOV);
Fountain Valley Chateau Blanc HOA, p. 695 (motion for new trial).
Relevant statutes: CCP § 581c (motion for nonsuit); CCP § 630 (motion for directed verdict);
CCP § 629 (motion for JNOV); CCP § 657 (motion for new trial; see also California
Constitution article VI, § 13); CCP § 128(a)(8) (motion to reverse or vacate judgment); CCP §
663 (motion to set aside judgment).
Section A.1 No reading assigned Provisional remedies: Attachment for security
Section A.2 No reading assigned Provisional remedies: TROs and Preliminary injunctions
Section B.1 No reading assigned Enforcement of judgment and orders: Execution
Section B.2 No reading assigned Enforcement of judgment and orders: Contempt of court
Section C No reading assigned Costs and attorney’s fees
Thursday: Chapter 8 (Appellate Review)
Section A Pages 775-777 Right to Appeal – Writ Review
Section B.1 Pages 777-789 Appealability: Appealable judgments and orders
Section B.2 Pages 796-803 Appealability: Nonappealable orders
Cases: Morehart, p. 778 (identifying a final judgment); Roden v. Amerisourcebergen Corp., p.
786 (appealability of post-trial discovery order). Science Applications Internat’l Corp, p. 798
(extraordinary writs).
Relevant statutes: CCP §§ 901 et seq.; see especially CCP § 904.1(a) (one final judgment rule);
CCP § 906 (prejudicial error).
Continued . . .
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Week Fourteen: Tuesday 4/9 & Thursday 4/11
Tuesday & Thursday: Chapter 9 (Prior Adjudication)
Section A No reading assigned Stare Decisis
Section B Page 854 Res Judicata
Section B.1 Pages 854-864 Claim Preclusion (res judicata)
Section B.2 Pages 867-876 Issue Preclusion (collateral estoppel)
Cases: Boeken v. Philip Morris, U.S.A., p. 856 (primary right doctrine); Hernandez, p. 867
(issue preclusion).
Related Reading: Prior adjudication & primary right doctrine: stare decisis and res judicata
(claim and issue preclusion) (pp. 917-939).
Week Fifteen: Tuesday 4/16 & Thursday 4/18
Practical applications.
Assignment Four ((worksheet on court visit and observation of a civil calendar, civil hearing, or
civil trial) due 4/18.
FINAL EXAM – TENTATIVE DATE
Tuesday, April 23
Have a Great Semester Break!
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