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Cal Code Civ Pro

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Cal Code Civ Pro

    CODE(S) SUPPLEMENT: CAL CIV PRO

    SOURCE: PROFESSOR SLOMANSONS PAST FINAL EXAM LIBRARIES

    Not all deletions indicated. Last rev: 03/08/12

    CALIFORNIA CODE OF CIVIL PROCEDURE

    ? 86. Jurisdiction

     (a) The following civil cases and proceedings are limited civil cases:

    (1) Cases at law in which the demand, exclusive of interest, or the value of the

    property in controversy amounts to twenty-five thousand dollars ($25,000) or

    less. This paragraph does not apply to cases that involve the legality of any tax,

    impost, assessment, toll, or municipal fine, except actions to enforce payment

    of delinquent unsecured personal property taxes if the legality of the tax is not

    contested by the defendant. * * *

     (b) The following cases in equity are limited civil cases:

     (1) Cases to try title to personal property when the amount involved is not more than twenty-five thousand dollars ($25,000).

     (2) Cases when equity is pleaded as a defensive matter in any case that is otherwise a limited civil case.

    ? 128.5. Frivolous actions or delaying tactics; order for payment of expenses; punitive damages

     (a) Every trial court may order a party, the party's attorney, or both to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3

    ? 128.7. Signature requirement for court papers; certification that specified conditions met; violations; sanctions; punitive damages

    (a) Every pleading, petition, written notice of motion, or other similar paper shall be

    signed by at least one attorney of record * * * .

    (b) By presenting to the court, whether by signing, filing, submitting, or later

    advocating, a pleading, petition, written notice of motion, or other similar paper,

    an attorney or unrepresented party is certifying that to the best of the person's

    knowledge, information, and belief, formed after an inquiry reasonable under the

    circumstances, all of the following conditions are met:

    (1) It is not being presented primarily for an improper purpose, such as to harass

    or to cause unnecessary delay or needless increase in the cost of litigation.

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    ? 197. Source lists of jurors; contents; data from department of motor vehicles; confidentiality

     (a) All persons selected for jury service shall be selected at random, from a source or sources inclusive of a representative cross section of the population of the area served by the court. Sources may include, in addition to other lists, customer mailing lists, telephone directories, or utility company lists.

     (b) The list of registered voters and the Department of Motor Vehicles' list of licensed drivers and identification cardholders resident within the area served by the court, are appropriate source lists for selection of jurors. These two source lists, when substantially purged of duplicate names, shall be considered inclusive of a representative cross section of the population, within the meaning of subdivision (a).

    ? 335.1. Two years; actions for assault, battery, or injury to, or for death of, individual caused by wrongful act or neglect Within two years: An action for assault,

    battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.

    ?364. Notice of intention; time; law governing; fictitious name; effect of failure to comply

     (a) No action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.

     (b) No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.

     (c) The notice may be served in the manner prescribed in Chapter 5 * * * .

     (d) If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.

     (e) The provisions of this section shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name, as provided in Section 474. * * * ?395. Actions generally; proper court; waiver

     (a) Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action. If the action is for injury to person or personal property or for death from wrongful act or negligence, the superior court in either the county where the injury occurs or the injury causing death occurs or the county where the defendants, or some of them reside at the commencement of the action, is a proper court for the trial of the action. * * * ?395.5. Actions against corporations or associations; place of trial A corporation or

    association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the

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    principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases.

    ?403.020. Amended complaint or other initial pleading; changed jurisdictional classification; reclassification

     (a) If a plaintiff, cross-complainant, or petitioner files an amended complaint or other amended initial pleading that changes the jurisdictional classification from limited to unlimited, the party at the time of filing the pleading shall pay the reclassification fee provided in Section 403.060, and the clerk shall promptly reclassify the case. If the amendment changes the jurisdictional classification from unlimited to limited, no reclassification fee is required, and the clerk shall promptly reclassify the case.

    ?403.030. Limited civil cases; cross-complainant; caption change; reclassification If a party in a limited civil case files a cross-complaint that causes the action or proceeding to exceed the maximum amount in controversy for a limited civil case or otherwise fail to satisfy the requirements for a limited civil case as prescribed by Section 85, the caption of the cross-complaint shall state that the action or proceeding is a limited civil case to be reclassified by cross-complaint, or words to that effect. * * *

? 403.040. Motion for reclassification

     (a) The plaintiff, cross-complainant, or petitioner may file a motion for reclassification within the time allowed for that party to amend the initial pleading. The defendant or cross-defendant may file a motion for reclassification within the time allowed for that party to respond to the initial pleading. The court, on its own motion, may reclassify a case at any time. A motion for reclassification does not extend the moving party's time to amend or answer or otherwise respond. The court shall grant the motion and enter an order for reclassification, regardless of any fault or lack of fault, if the case has been classified in an incorrect jurisdictional classification.

    * * *

     (e) Nothing in this section shall be construed to require the superior court to reclassify an action or proceeding because the judgment to be rendered, as determined at the trial or hearing, is one that might have been rendered in a limited civil case.

     (f) In any case where the misclassification is due solely to an excess in the amount of the demand, the excess may be remitted and the action may continue as a limited civil case.

? 410.10. Basis A court of this state may exercise jurisdiction on any basis not

    inconsistent with the Constitution of this state or of the United States.

?415.40. Service on person outside state A summons may be served on a person outside

    this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing.

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?416.10. Corporations generally A summons may be served on a corporation by

    delivering a copy of the summons and the complaint by any of the following methods:

     (a) To the person designated as agent for service of process as provided by any provision in * * * the Corporations Code * * * .

     (b) To the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, [or] * * * a person authorized by the corporation to receive service of process.

    ? 418.10. Motion to quash service of summons or to stay or dismiss action; procedure; appearance; waiver

     (a) A defendant, on or before the last day of his or her time to plead *** may serve and file a notice of motion for one or more of the following purposes:

     (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.

     (2) To stay or dismiss the action on the ground of inconvenient forum. ***

     (b) *** The service and filing of the notice shall extend the defendants time to

    plead until 15 days after service upon him or her of a written notice of entry of an order denying his or her motion ***.

     (c) If the motion is denied by the trial court, the defendant, within 10 days after service *** of a written notice of entry of an order of the court denying his or her motion, or within any further time not exceeding 20 days that the trial court may for good cause allow, and before pleading, may [unlike fed ct must, to avoid waiver of appellate review]

    petition *** for a writ of mandate ***. The *** service and filing of the [writ] notice shall extend the defendants time to plead until *** after service upon him or her of a written notice of the final judgment in the mandate proceeding.

     * * *

     (e) A defendant or cross-defendant may make a motion under this section and simultaneously answer, demur, or move to strike the complaint or cross-complaint.

     (1) Notwithstanding Section 1014, no act by a party who makes a motion under this section, including filing an answer, demurrer, or motion to strike constitutes an appearance, unless the court denies the motion made under this section.

     * * *

     (3) Failure to make a motion under this section at the time of filing a demurrer or motion to strike constitutes a waiver of the issues of lack of personal jurisdiction, inadequacy of process, inadequacy of service of process, inconvenient forum, and delay in prosecution.

?425.10. Statement of facts; demand for judgment

    A complaint or cross-complaint shall contain both of the following:

     (1) A statement of the facts constituting the cause of action, in ordinary and concise language.

     (2) A demand for judgment for the relief to which the pleader claims to be entitled. * * * [T]he amount demanded shall be stated.

    (b) Notwithstanding subdivision (a), where an action is brought to recover actual or punitive damages for personal injury or wrongful death, the amount demanded shall not

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    be stated, but the complaint shall comply with Section 422.30 and, in a limited civil case, with subdivision (b) of Section 70613 of the Government Code.

?425.115. Punitive damages; service of statement; form

     a) As used in this section:

     (1) “Complaint” includes a cross-complaint.

     (2) “Plaintiff” includes a cross-complainant.

     (3) “Defendant” includes a cross-defendant.

     (b) The plaintiff preserves the right to seek punitive damages pursuant to Section 3294 of the Civil Code on a default judgment by serving upon the defendant the following statement, or its substantial equivalent: * * *

     (c) If the plaintiff seeks punitive damages pursuant to Section 3294 of the Civil Code, and if the defendant appears in the action, the plaintiff shall not be limited to the amount set forth in the statement served on the defendant pursuant to this section.

     (d) A plaintiff who serves a statement on the defendant pursuant to this section shall be deemed to have complied with Sections 425.10 and 580 of this code and Section 3295 of the Civil Code.

     (e) The plaintiff may serve a statement upon the defendant pursuant to this section, and may serve the statement as part of the statement required by Section 425.11.

     (f) The plaintiff shall serve the statement upon the defendant pursuant to this section before a default may be taken, if the motion for default judgment includes a request for punitive damages.

     (g) The statement referred to in subdivision (b) shall be served by one of the following methods:

     (1) If the party has not appeared in the action, the statement shall be served in the same manner as a summons pursuant to Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure.

     (2) If the party has appeared in the action, the statement shall be served upon his or her attorney, or upon the party if he or she has appeared without an attorney, either in the same manner as a summons pursuant to Article 3 (commencing with Section 415.10) of Chapter 4 or in the manner provided by Chapter 5 (commencing with Section 1010) of Title 14.

    ?425.13. Negligence actions against health care providers; claims for punitive damages; amended pleadings

     (a) In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.

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     * * * ? 425.14. Actions against religious corporations or religious corporation soles; claims for punitive or exemplary damages; amended pleadings; discovery

    No claim for punitive or exemplary damages against a religious corporation or religious corporation sole shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive or exemplary damages to be filed. The court may allow the filing of an amended pleading claiming punitive or exemplary damages on a motion by the party seeking the amended pleading and upon a finding, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established evidence which substantiates that plaintiff will meet the clear and convincing standard of proof under Section 3294 of the Civil Code.

? 425.16. Anti-SLAPP actions; motion to strike; discovery; remedies

    * * *

     (b)

    (1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

    (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

    * * *

     (c) In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. If the court finds

    that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to [CCP] Section 128.5.

    * * *

     (e) As used in this section, “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue” includes:

    (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

    (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;

    (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest;

    (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

    ?425.17. Legislative findings and declarations regarding California Anti-SLAPP Law; application of ?425.16

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* * *

     (b) Section 425.16 does not apply to any action brought solely in the public interest or on behalf of the general public * * * .

     (c) Section 425.16 does not apply to any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services, including, but not limited to, insurance, securities, or financial instruments, arising from any statement or conduct by that person.

?430.10. Objection by defendant; grounds

     The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

     (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

     (b) The person who filed the pleading does not have the legal capacity to sue.

     (c) There is another action pending between the same parties * * * .

     (d) There is a defect or misjoinder of parties.

     (e) The pleading does not state facts sufficient to constitute a cause of action.

     (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible. * * *

    ? 430.30. Objections by demurrer and answer

     (a) When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.

     (b) When any ground for objection to a complaint or cross-complaint does not appear on the face of the pleading, the objection may be taken by answer.

?435. Notice of motion to strike whole or part of complaint

     (a) As used in this section:

    (1) The term "complaint" includes a cross-complaint.

    (2) The term "pleading" means a demurrer, answer, complaint, or cross-complaint.

     (b)

    (1) Any party, within the time allowed to respond to a pleading may serve and file

    a notice of motion to strike the whole or any part thereof * * * .

    ? 436. Discretion of court to strike pleadings or portions of pleadings The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

     (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

     (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

?437(c) Grounds for and effect of summary judgment; procedure on motion

     (a) Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the

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    general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct. Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. However, if the notice is served by mail, the required 75-day period of notice shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States, and if the notice is served by facsimile transmission, Express Mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

    ?474. Defendant designated by fictitious name; amendment; requirements for default judgment; notice to person served When the plaintiff is ignorant of the name of

    a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly; provided, that no default or default judgment shall be entered against a defendant so designated, unless it appears that the copy of the summons or other process, or, if there be no summons or process, the copy of the first pleading or notice served upon such defendant bore on the face thereof a notice stating in substance: “To the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the fictitious name of (designating it).” The certificate or affidavit of service must state the fictitious name under which such defendant was served and the fact that notice of identity was given by endorsement upon the document served as required by this section. The foregoing requirements for entry of a default or default judgment shall be applicable only as to fictitious names designated pursuant to this section and not in the event the plaintiff has sued the defendant by an erroneous name and shall not be applicable to entry of a default or default judgment based upon service, in the manner otherwise provided by law, of an amended pleading, process or notice designating defendant by his true name. ?481.200. Public entity. “Public entity” includes the state, the Regents of the University

    of California, a county, a city, district, public authority, public agency, and any other political subdivision or public corporation in the state.

?583.210. Time for service and return.

     (a)The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision an action is commenced at the time the complaint is filed.

    ? 877.6. Determination of good faith of settlement with one or more tortfeasors or co-obligors; review by writ of mandate; tolling of time limitations

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     (a)

     (1) Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005. * * *

     (b) The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counteraffidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing.

     (c) A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.

     (d) The party asserting the lack of good faith shall have the burden of proof on that issue. * * *

    ?998. Withholding or augmenting costs following rejection or acceptance of offer to allow judgment

     (a) The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section. * * *

     (b) Not less than 10 days prior to commencement of trial or arbitration (as provided in Section 1281 or 1295) of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted. Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party.

     (1) If the offer is accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall enter judgment accordingly. * * *

     (2) If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the trial or arbitration.

     (c)

     (1) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant. * * *

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    ? 1005. Written notice for motions; service and filing of moving and supporting papers

    * * *

     (b) Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court. However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California, 10 calendar days if either the place of mailing or the place of address is outside the State of California but within the United States, and 20 calendar days if either the place of mailing or the place of address is outside the United States, and if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 16-day period of notice before the hearing shall be increased by two calendar days.

    ? 1013. Service by mail, Express Mail or facsimile transmission; procedure; completion of service; extension of time; electronic service permitted

     (a) In case of service by mail, the notice or other paper shall be deposited in a post office, mailbox, subpost office, substation, or mail chute, or other like facility regularly maintained by the United States Postal Service, in a sealed envelope, with postage paid, addressed to the person on whom it is to be served, at the office address as last given by that person on any document filed in the cause and served on the party making service by mail; otherwise at that party's place of residence. Service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California, 10 calendar days if either the place of mailing or the place of address is outside the State of California but within the United States, and 20 calendar days if either the place of mailing or the place of address is outside the United States.

     * * *

    ? 1021. Attorney's fees; determination by agreement; right to costs Except as

    attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.

    ? 1032. Prevailing party in any action or proceeding; stipulation to alternative procedures

     (a) As used in this section, unless the context clearly requires otherwise:

    * * *

     (4) "Prevailing party" includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the "prevailing party" shall be as determined by the

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