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See Page 23 for

Filing Instructions

CALIFORNIA PRACTICE GUIDE

CIVIL PROCEDURE BEFORE TRIAL

2010 UPDATE

40907526

© Copyright 2010 by The Rutter Group, a Division of West, a Thomson Reuters Business

A DIVISION OF WEST, A THOMSON REUTERS BUSINESS

It has been another very busy year. The enclosed revisions coverscores of new cases, new statutes (including the Electronic Discov-ery Act), plus numerous changes in the California Rules of Court. Themost important developments are summarized in this Highlights pam-phlet.

Update Authors

Hon. William F. Rylaarsdam, Assoc. Justice, California Courtof Appeal, 4th District

Hon. Lee Smalley Edmon, Los Angeles Superior Court

Contributing Editors

Atty. Richard J. Burdge, Jr., Howrey LLP, Los Angeles(Chapter 8, Discovery)Atty. Jeffrey I. Ehrlich, Ehrlich Law Firm, Claremont (Chap-ter 10, Summary Judgment)Atty. Richard B. Goetz, O’Melveny & Myers LLP, Los Ange-les (Chapter 14, Class Actions)Atty. David J. Pasternak, Pasternak, Pasternak & Patton, LosAngeles (Chapter 9 Part II, Provisional Remedies)

Cut-off Date—April 1, 2010: Many of the new cases cited in theenclosed revisions were not final as of our cut-off date and could beaffected by further proceedings. Therefore, be sure to check theirsubsequent histories.

Your Comments Invited: We are greatly indebted to readers fortheir comments, suggestions and (occasional) corrections. Pleasekeep them coming.

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2010 UPDATE HIGHLIGHTS

These Highlights summarize the most important changes coveredin the enclosed revisions. The paragraph numbers are keyed to the2010 edition of this Practice Guide, where the material is discussedin greater detail.

CHAPTER 1

PRELAWSUIT CONSIDERATIONS

Attorney Fee Awards

[1:232.5] No fee awards to attorneys appearing in pro per:Attorneys successfully representing themselves cannot recover feesunder a contract provision authorizing fee awards to the prevailingparty. [Gorman v. Tassajara Develop. Corp. (2009) 178 CA4th 44,93, 100 CR3d 152, 191]

[1:240.10] Prevailing party in suit to compel arbitration: If aseparate lawsuit is filed to compel (or to stay) arbitration of a con-tract dispute, the prevailing party in that separate action may beentitled to a fee award without regard to the outcome of the arbitra-tion. [Turner v. Schultz (2009) 175 CA4th 974, 984-985, 96 CR3d659, 667 (under broadly-worded attorney fees provision)]

[1:245] Judgment offset may affect prevailing party determi-nation: The court has discretion to determine whether the partyrequired to pay a nominal net judgment is nevertheless the prevail-ing party entitled to attorney fees pursuant to Civ.C. §1717. [Searsv. Baccaglio (1998) 60 CA4th 1136, 1154-1155, 70 CR2d 769, 781(cited with approval in Goodman v. Lozano (2010) 47 C4th 1327,1335, 104 CR3d 219, 225, fn. 3)]

[1:281] Losing party’s indigency status may affect amount offee award: [See Garcia v. Santana (2009) 174 CA4th 464, 477,94 CR3d 299, 308]

Retainer Agreements

[1:407.5] Disclosure now required re lack of malpractice insur-ance: Written disclosure is also required when existing coverageterminates during representation. [See CRPC 3-410]

Attorney’s Lien on Recovery

[1:428] Priority over earlier medical liens: Attorney liens takepriority over earlier medical attorney liens “as a matter of equity andpublic policy.” Rationale: Without the attorney’s efforts, there wouldbe no judgment or settlement and the medical lien would be worth-less. [Gilman v. Dalby (2009) 176 CA4th 606, 618-619, 98 CR3d231, 242]

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Prelawsuit Investigations

[1:465.2] Failure to preserve relevant evidence? California lawis unclear, but federal courts recognize a common law duty to pre-serve evidence prior to anticipated litigation. [See Pension Commit-tee of Univ. of Montreal Pension Plan v. Banc of America Securities,LLC (SD NY 2010) F.Supp.2d , (2010 WL 184312, *4)]

Filing Unlimited vs. Limited Civil Case

[1:507] Exaggerating claim may affect fee award: The courthas discretion to limit or deny fees in an unlimited civil case wherethe amount recovered could have been obtained in a limited civilcase, even where a statute makes a fee award mandatory. [Chavezv. City of Los Angeles (2010) 47 C4th 970, 982-983, 104 CR3d 710,719-720]

Prelawsuit Communications and Demands

[1:600] Threats to report opposing counsel to State Bar:Threatening opposing counsel with presenting disciplinary chargesto the State Bar in order to gain an advantage in a civil dispute vio-lates CRPC 5-100, and also constitutes the crime of extortion. It isimmaterial that the purpose of the threat was to collect money justlydue the extortionist. [See Cohen v. Brown (2009) 173 CA4th 302,318, 93 CR3d 24, 36-37]

Litigation Privilege

[1:615.1] Serving improper notice to quit: Serving a notice toquit as a prerequisite to an unlawful detainer action may be privi-leged under Civ.C. §47(b), if it was “in furtherance of litigation con-templated in good faith and under serious consideration.” [Feldmanv. 1100 Park Lane Assocs. (2008) 160 CA4th 1467, 1487, 74 CR3d1, 17]

[1:619.20] Defendant’s communications and pleadings: Thelitigation privilege applies to communications relative to the defenseof an action as well as those relative to its filing and prosecution.[Cabral v. Martins (2009) 177 CA4th 471, 485, 99 CR3d 394, 406]

[1:645.1] Certain statutory violations not protected by litiga-tion privilege: The litigation privilege under California law is nodefense to violations of the federal Fair Debt Collection PracticesAct. [Welker v. Law Office of Horwitz (SD CA 2009) 626 F.Supp.2d1068, 1072]

Nor does the litigation privilege shield violations of a similar Califor-nia statute (the Robbins-Rosenthal Fair Debt Collection PracticesAct; Civ.C. §1788 et seq.). [Komarova v. National Credit Accept., Inc.(2009) 175 CA4th 324, 337, 95 CR3d 880, 890—more specific stat-ute prevails over general one]

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¶

Governmental Claims

[1:760.5] Statute of limitations tolled for mental incapacity: The1-year deadline for applications to file late claims is tolled if the in-jured person was mentally incapacitated and did not have a guard-ian or conservator of his or her person. [Gov.C. §911.4(c); seeRoberts v. County of Los Angeles (2009) 175 CA4th 474, 479, 96CR3d 60, 63]

• [1:760.6] Compare—no tolling of medical malpractice stat-ute of limitations: Tolling of the Gov.C. §945.6 time limit forpresenting late claims to a public entity does not extend the CCP§340.5 statute of limitations on medical malpractice actionsagainst health care providers, including public entities. [Robertsv. County of Los Angeles, supra, 175 CA4th at 479, 96 CR3d at63]

CHAPTER 2

PARTIES TO THE ACTION

Standing to Sue

[2:15.1] Shareholder action for diminution in value of shares:Whether an individual shareholder may sue the company or its of-ficers and directors for misrepresentations that adversely affectedthe value of his or her stock is pending before the California SupremeCourt in Krinsk v. Chiron Corp., Case No. S174803 (rev.grntd.8/26/09).

[2:101.1] Suspended corporations; effect of revivor: Re-vival of corporate powers “enables the previously suspended partyto proceed with the prosecution or defense of the action, and vali-dates a judgment obtained during suspension.” [Center for Self-Improvement & Community Develop. v. Lennar Corp. (2009) 173CA4th 1543, 1553, 94 CR3d 74, 81 (emphasis added)]

Claims Barred

[2:133.5] Unlicensed contractors: Unlicensed contractors maynot sue for the value of their services and must return “all compen-sation paid” for performance of the contract (Bus. & Prof.C. §7031(b)). “All compensation paid” means without reductions or offsets forthe value of the material or services provided. [White v. Cridlebaugh(2009) 178 CA4th 506, 521-522, 100 CR3d 434, 445]

Intervention

[2:430.2] Liability insurers: A liability insurer that has deniedcoverage and refused to defend its insured has no right thereafterto intervene in the action (e.g., to challenge its insured’s settlementwith the claimant). [Hinton v. Beck (2009) 176 CA4th 1378, 1386, 98CR3d 612, 616]

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Intervention may be allowed, however, where a liability insurer isproviding the insured’s defense, even if under a “reservation of rights”to contest coverage. [Gray v. Begley (2010) 182 CA4th 1509, ,106 CR3d 729, 740]

CHAPTER 3

JURISDICTION AND VENUE

Specific (Limited) Personal Jurisdiction

[3:231.5] Assumption of existing liability as basis for personaljurisdiction: A party who assumes another’s liability must “rea-sonably anticipate being haled into court” wherever that other partywas subject to personal jurisdiction. [Epic Communications, Inc. v.Richwave Tech., Inc. (2009) 179 CA4th 314, 330, 101 CR3d 572,586]

[3:339] Nonresident insurance companies: Absent other “con-tacts” with California, a nonresident health insurer does not subjectitself to local personal jurisdiction solely by accepting premiumpayments from insureds who have moved to California or by payingclaims submitted for treatment rendered here. [Elkman v. NationalStates Ins. Co. (2009) 173 CA4th 1305, 1318, 93 CR3d 768, 778]

Challenging Personal Jurisdiction

[3:375] Jurisdictional defects waived if no motion to quashfiled before answer: [See State Farm Gen. Ins. Co. v. JT’sFrames, Inc. (2010) 181 CA4th 429, 443-444, 104 CR3d 573, 584]

[3:394.1] Litigating merits while writ pending (after motion toquash denied) waives jurisdictional defect: [See State FarmGen. Ins. Co. v. JT’s Frames, Inc., supra, 181 CA4th at 444, 104CR3d at 584]

Venue

[3:508] Actions arising from consumer transactions: TheCCP §395(b) venue rule applies both in actions against a consumerdefendant (e.g., for purchase price) or by a consumer plaintiff (e.g.,for unfair debt collection practices). [See Fontaine v. Sup.Ct.(Cashcall, Inc.) (2009) 175 CA4th 830, 838, 96 CR3d 607, 613]

[3:575.5] Burden of proof where venue based on defendant’sresidence: Where the complaint alleges defendant’s local resi-dence as the basis for venue, defendant must establish he or sheresided elsewhere at the time the action was commenced; and, ifthere are several defendants, that no codefendant resided in thecounty in which plaintiff filed suit. [Sequoia Pine Mills, Inc. v. Sup.Ct.(Avram) (1968) 258 CA2d 65, 68, 65 CR 353, 355]

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CHAPTER 4

SERVICE OF PROCESS

Summons

[4:95] “Substantial compliance” with summons requirementssufficient: Substantial compliance requires a showing of the fol-lowing conditions:— some degree of compliance with the statutory requirement in

question (rather than a “complete failure to comply”);— circumstances such that it was “highly probable” that the at-

tempted service would impart the same notice as full compli-ance; and

— the attempted service provided sufficient notice to put the defen-dant on his or her defense. [Carol Gilbert, Inc. v. Haller (2009)179 CA4th 852, 865-866, 101 CR3d 843, 853; see also ¶4:25 ]

[4:101] Summons naming “Doe” defendant must notify per-son that he or she is being served as “Doe”: The summonsitself must contain the required information; otherwise, the serviceis void. It is immaterial that the “Doe” defendant is identified in anamendment to the complaint served together with the summons.[Carol Gilbert, Inc. v. Haller, supra, 179 CA4th at 859, 101 CR3d at848]

[4:320] Service on foreign corporation with local subsidiary:A local subsidiary of a foreign parent corporation is deemed its “gen-eral manager in this State” for service of process purposes, regard-less of whether the subsidiary has any real control or managerialresponsibility over the foreign parent corporation’s activities.[Yamaha Motor Co., Ltd. v. Sup.Ct. (Connors) (2009) 174 CA4th264, 274, 94 CR3d 494, 501]

CHAPTER 5

DEFAULTS

Entry of Default and Default Judgment

[5:78] Copy of application for entry of default must be mailedto defendant; length of notice immaterial: “The copy is typicallydeposited in the mail on the same day the request is submitted to theclerk, rendering it virtually impossible that the defendant will receiveit before the default is entered.” [Standard Microsystems Corp. v.Winbond Elec. Corp. (2009) 179 CA4th 868, 899, 102 CR3d 140,164]

[5:223] Special requirements for entry of default against “Doe”defendants: [See Pelayo v. J.J. Lee Mgmt. Co., Inc. (2009) 174CA4th 484, 496, 94 CR3d 502, 511]

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[5:241.1] Amount demanded in complaint as limit on defaultjudgment; no constructive notice from other sources: [SeeStein v. York (2010) 181 CA4th 320, 325, 105 CR3d 1, 4—wherecomplaint did not specify the amount of damages sought, defaulteddefendant’s participation in discovery and other pretrial proceduresdid not waive his right to object to amount of damages awarded]

Relief From Default or Default Judgment

[5:305.10] Motion based on “attorney affidavit of fault”; copyof proposed answer required; substantial compliance suffi-cient: [See Carmel, Ltd. v. Tavoussi (2009) 175 CA4th 393, 403,95 CR3d 694, 702—substantial compliance found where counseloffered proposed answer at motion hearing rather than serving it withmoving papers]

[5:313] Motion based on “mistake”; attorney’s mistake of lawcharged to client: [See Hearn v. Howard (2009) 177 CA4th 1193,1206, 99 CR3d 642, 654; Standard Microsystems Corp. v. WinbondElectronics Corp. (2009) 179 CA4th 868, 879, 102 CR3d 140, 148]

CHAPTER 6

PLEADINGS

Complaint

[6:92] “Idem sonans” doctrine: Misspelling of defendant’sname is disregarded where his or her real name is pronounced asmisspelled. [Sakaguchi v. Sakaguchi (2009) 173 CA4th 852, 857, 92CR3d 717, 721—defendant’s first name, Takeshi, incorrectly spelled“Takechi” in summons and complaint]

• [6:93] Not where defendant or third party prejudiced: Theabove doctrine does not apply where the opposing party hasbeen misled to his or her prejudice. [Manson, Iver & York v.Black (2009) 176 CA4th 36, 47, 97 CR3d 522, 531—Paula Blackserved with summons and complaint naming “Pamela Black”reasonably assumed she was served in error and failed to re-spond]

[6:138] Pleading fraud based on failure to disclose essentialfacts: [See Morgan v. AT & T Wireless Services, Inc. (2009) 177CA4th 1235, 1262, 99 CR3d 768, 790]

[6:373] Court order required for claim against attorney forconspiring with client during representation (Civ.C. §1714.10):If filed without a prior court order, such a conspiracy complaint is anullity (¶6:372 ). Nevertheless, plaintiff may be granted leave toamend to allege claims against the attorney not based on represen-tation of the client—e.g., claims that the attorney was acting for hisor her own financial gain. [Central Concrete Supply Co., Inc. v.

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Bursak (2010) 182 CA4th 1092, 1103, 105 CR3d 909, 917—allega-tions that attorney conspired with client to defraud plaintiff could beamended to allege attorney received fraudulent transfers of plaintiff’smoney]

Cross-Complaint

[6:535] Equitable indemnity cross-complaint by joint tortfea-sor proper despite comparative negligence defense in mainaction: [See Paragon Real Estate Group of San Francisco, Inc. v.Hansen (2009) 178 CA4th 177, 182, 100 CR3d 234, 237-238]

Amended Pleadings

[6:639.5] Error to condition leave to amend on plaintiff produc-ing admissible evidence of claim: [See Sanai v. Saltz (2009)170 CA4th 746, 769-770, 88 CR3d 673, 691]

[6:665.5] Amendment of complaint after anti-SLAPP motiongranted: The complaint cannot be amended to avoid the court’sfinding that defendant’s activity is protected as “free speech”; but itcan be amended to establish a probability that plaintiff may prevailon the merits (notwithstanding the “free speech” or “right to petition”connection claimed by defendant). [See Nguyen-Lam v. Cao (2009)171 CA4th 858, 870-871, 90 CR3d 205, 216—plaintiff granted leaveto amend her defamation complaint to allege public figure defendantacted with actual malice, which if proved would defeat the “freespeech” protection claimed by defendant]

CHAPTER 7 PART II

ANTI-SLAPP MOTIONS

“Commercial Speech” Exception to Anti-SLAPP Statute

[7:560.1] Compare—editorial layout not protected under“commercial speech” exception: [See Stewart v. Rolling StoneLLC (2010) 181 CA4th 664, 689, 105 CR3d 98, 119—decision toplace information identifying plaintiff in close proximity to cigaretteadvertisement was an editorial decision and did not convert theplacement to “commercial speech”]

Activities Protected By Anti-SLAPP Statute

[7:622] Litigation activity: Pleadings, statements and writings“in connection with” civil litigation are covered by the anti-SLAPPstatute. It need not be shown that the litigated matter is of publicinterest. [Seltzer v. Barnes (2010) 182 CA4th 953, 962, 106 CR3d290, 297]

• [7:624] Includes conduct on behalf of others: The partyfiling an anti-SLAPP motion is not required to demonstrate thatits protected statements or writings were made on its own be-half. Thus, attorneys representing clients in litigation may invoke

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the anti-SLAPP statute against claims of abuse of process ormalicious prosecution by the persons sued. [PrediWave Corp. v.Simpson Thacher & Bartlett LLP (2009) 179 CA4th 1204, 1220-1221, 102 CR3d 245, 257]

• [7:625] Include prelawsuit notices and statements: Law-suits based on prelitigation statements or writings may be sub-ject to an anti-SLAPP motion. [CKE Restaurants, Inc. v. Moore(2008) 159 CA4th 262, 271, 70 CR3d 921, 928—suit based onstatements made in 60-day “notice of intent to sue” required bySafe Drinking Water Act (Prop. 65)]

• [7:627] Includes settlement offers and negotiations: Set-tlement negotiations and agreements are made “in connectionwith” litigation for purpose of the anti-SLAPP statute. [Seltzer v.Barnes (2010) 182 CA4th 953, 962-963, 106 CR3d 290, 297-298]

— [7:627.1] Including settlement negotiations allegedlyconducted for unlawful purpose: [See Seltzer v.Barnes, supra, 182 CA4th at 963-967, 106 CR3d at 298-301—plaintiff claimed her insurer’s attorney secretly nego-tiated settlement with third party that deprived plaintiff of in-surance coverage]

[7:644] Compare—attorney malpractice actions not affected:A client’s action against his or her attorney, “whether pleaded as amalpractice claim, a breach of fiduciary duty claim, or any othertheory of recovery,” is not subject to the anti-SLAPP statute “merelybecause some of the allegations refer to the attorney’s actions incourt.” [Hylton v. Frank E. Rogozienski, Inc. (2009) 177 CA4th 1264,1275, 99 CR3d 805, 813]

• [7:645] Negligence claims against own expert witness:Similarly, a party’s claims against his or her own expert witnessfor giving false deposition testimony are not subject to an anti-SLAPP motion. Although the testimony was given in the courseof a judicial proceeding, the claims against the expert are basedon the expert’s breach of a duty of loyalty owed to the client, noton any constitutionally protected speech or petition rights. [Rob-les v. Chalilpoyil (2010) 181 CA4th 566, 578-579, 104 CR3d 628,637-638]

[7:662] Compare—actions in foreign courts: Because litiga-tion in foreign countries is not protected activity under the U.S. orCalifornia Constitutions, claims based on foreign litigation are notsubject to an anti-SLAPP motion. [Guessous v. Chrome Hearts, LLC(2009) 179 CA4th 1177, 1185, 102 CR3d 214, 219]

[7:701] Compare—private contractual arbitration: Similarly,claims relating to an arbitration demand are not subject to an anti-SLAPP motion because an arbitration demand is not an “officialproceeding”; nor does it “fit” any of the other anti-SLAPP categories.[Century 21 Chamberlain & Assocs. v. Haberman (2009) 173 CA4th1, 7-8, 92 CR3d 249, 254]

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[7:782] Statements on “issue of public interest” protected:There must be a “public interest” in the specific speech or conductalleged in the complaint. [World Fin’l Group, Inc. v. HBW Ins. & Fin’lServices, Inc. (2009) 172 CA4th 1561, 1570, 92 CR3d 227, 234-235—public interest in employee mobility (invalidating covenants notto compete) did not support anti-SLAPP motion against complaintcharging employees with misappropriating employer’s trade secrets]

• [7:782.10] Limitation—statements not constitutionallyprotected: The anti-SLAPP statute does not protect speechnot protected by the First Amendment; e.g., intentional threatsof bodily harm by the defendant are not constitutionally pro-tected. [D.C. v. R.R. (2010) 182 CA4th 1190, 1229, 106 CR3d399, 428—complaint alleged “cyberbullying” (Internet postings)]

[7:826] Compare—illegal conduct not protected; “illegal”means criminal: The term “illegal” means criminal, rather thanmerely violative of a statute or common law standard (as alleged inevery complaint). [Mendoza v ADP Screening & Selection Services,Inc. (2010) 182 CA4th 1644, , CR3d , (2010 WL1039821, *4)]

Causes of Action Subject to Anti-SLAPP Motion

[7:863] Includes federal claims: Federal claims based on pro-tected activities are subject to CCP §425.16. [See Tichinin v. City ofMorgan Hill (2009) 177 CA4th 1049, 1061, 99 CR3d 661, 671—anti-SLAPP motion granted as to federal civil rights claim (under 42 USC§1983) based on defendant’s acts protected under anti-SLAPP stat-ute]

[7:920.1] Compare—breach of settlement agreement:Breaching a contract is not an exercise of a defendant’s constitu-tional right to “free speech” or “right of petition,” and hence not aprotected activity under CCP §425.16. [Applied Business Software,Inc. v. Pacific Mortg. Exch., Inc. (2008) 164 CA4th 1108, 1117, 79CR3d 849, 856; Delois v. Barrett Block Partners (2009) 177 CA4th940, 953, 99 CR3d 609, 619]

Recovery of Fees and Costs By Prevailing Party

[7:1120] Exception for public agencies: Public agencies maynot recover fees and costs from individuals who sue to enforce thestate’s “open meeting” and records laws or to determine that anaction taken by a legislative body is null and void . . . unless the courtfinds that the action was “clearly frivolous.” [CCP §425.16(c)(2)(added 2009)]

[7:1122] Dismissal no bar to recovery of fees and costs: Ifplaintiff voluntarily dismisses the action after defendant files an anti-SLAPP motion, the court loses jurisdiction to rule on the motion.[Law Offices of Andrew L. Ellis v. Yang (2009) 178 CA4th 869, 878-879, 100 CR3d 771, 777-778; see ¶11:6 ff.]

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Nonetheless, CCP §425.16 gives the trial court limited jurisdictionto decide whether to award attorney fees and costs to defendant.[See Law Offices of Andrew L. Ellis v. Yang, supra, 178 CA4th at879, 100 CR3d at 777-778]

CHAPTER 8

DISCOVERY

In General

[8:19.15] Duty to preserve evidence before discovery request?Although there is no known California authority, federal case lawrequires parties and their inside and outside counsel to take affir-mative steps to prevent loss or destruction of electronically-storedinformation before litigation commences. [See Pension Committeeof Univ. of Montreal Pension Plan v. Banc of America Securities, LLC(SD NY 2010) F.Supp.2d. , (2010 WL 184312, *4)]

[8:315.4] Discovery of juvenile court records: The CaliforniaJudicial Council has adopted guidelines for disclosure of juvenilecourt records. [CRC 5.552(e)(4)-(8) (amended 2009)]

Depositions

[8:596.50] Subpoenas for electronically-stored information:A subpoena may require that electronically-stored information (ESI)“be produced and that the party serving the subpoena, or someoneacting on the party’s request, be permitted to inspect, copy, test, orsample the information.” [CCP §1985.8(a)(1) (added 2009)]

• [8:596.54] Form for production: Except when the sub-poena specifies the format for producing the ESI, it may beproduced in the form “in which it is ordinarily maintained” or ina form “that is reasonably usable,” unless the parties agree orthe court orders otherwise. [CCP §1985.8(c)(1)]

• [8:596.60] Where data translation necessary: “If neces-sary,” the subpoenaed person, at the reasonable expense of thesubpoenaing party, is required to translate “through detectiondevices” any data compilations covered by the subpoena into a“reasonably usable form.” [CCP §1985.8(g)]

• [8:596.65] Grounds for opposing production: The sub-poenaed person may oppose the production and move to quashthe subpoena on the ground that the ESI sought is not reason-ably accessible because of “undue burden or expense.” [CCP§§1985.8(d), 1987.1]

A subpoena for ESI may also be challenged on grounds appli-cable to deposition subpoenas generally (see ¶8:598 ff.): e.g.,for defects in form or service; or on grounds of privilege, privacy

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or relevancy; or because the demands are oppressive and un-duly burdensome (e.g., a subpoena for all e-mail traffic betweenpeople with no connection to the dispute).

• [8:596.71] Grounds for limiting frequency or extent of dis-covery: [See CCP §1985.8(h)]

• [8:596.75] “Clawback” procedure for disclosure of privi-leged information: [See CCP §2031.285]

• [8:596.76] “Safe harbor” against sanctions where ESI lostor destroyed due to computer system: [See CCP §1985.8(l )]

Inspection Demands

[8:1427.5] “Electronically-stored information” (ESI): [SeeCCP §2016.020(e)]

• [8:1445.5] Form in which ESI to be produced: The de-manding party may “specify the form or forms” in which eachtype of ESI is to be produced. [CCP §2031.030(a)(2)]

If the party responding to the demand objects to the form speci-fied by the demanding party, or if no form is specified in the de-mand, the responding party “shall state in its response the formin which it intends to produce each type of information.” [CCP§2031.280(c)]

If the demanding party objects to the form stated in the re-sponse, the demanding party will have to file a motion to com-pel to resolve the issue (subject to the “meet and confer” require-ment and 45-day time limit; see ¶8:1490 ff.).

• [8:1456.21] Protective order available where ESI not “rea-sonably accessible” because of “undue burden or ex-pense”: [See CCP §2031.060(c)]

• [8:1456.40] Protection against unnecessary or unreason-ably burdensome ESI demands: [See CCP §§2031.060(f),2031.310(g)]

• [8:1468.8] “Translation” costs chargeable to demandingparty: “If necessary,” the responding party shall “throughdetection devices” translate any electronic data included in thedemand into a reasonably usable form “at the reasonable ex-pense of the demanding party.” [CCP §2031.280(e) (emphasisadded)]

• [8:1475.10] Objections to production: In lieu of moving fora protective order, the responding party may object to discoveryof ESI and refuse to search for it in the absence of a court order,on the ground that:— the source is “not reasonably accessible” because of “undue

burden or expense”; [CCP §2031.210(d)]

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— production is unnecessary or unreasonably burdensome.[CCP §2031.060(g) (discussed at ¶8:1456.40 ff. re protec-tive orders)]

• [8:1481.5] “Clawback” procedure to recover privilegedinformation produced in ESI: [See CCP §2031.285]

• [8:1488.5] No sanctions (“safe harbor”) where ESI lost ordestroyed due to computer system: [See CCP §§2031.300(d)(1), 2031.310(j)(1)]

CHAPTER 9 PART I

LAW AND MOTION

Motion for Reconsideration

[9:324.2f] Compare—motion for relief under CCP §473(b): Amotion for relief under CCP §473(b) (on the ground of “mistake,surprise, inadvertence or excusable neglect”) cannot be used toseek modification of an order based on erroneous or incompletearguments. Such relief must be sought under CCP §1008. [StandardMicrosystems Corp. v. Winbond Elec. Corp. (2009) 179 CA4th 868,895, 102 CR3d 140, 161]

[9:327.11] No inherent power to grant new trial: The courtcannot sua sponte reject evidence adduced at a motion hearing andorder the parties to submit new evidence. [Marriage of Herr (2009)174 CA4th 1463, 1470-1471, 95 CR3d 464, 470-471]

[9:331] Procedure on motion; declaration must accompanymotion: [See Branner v. Regents of Univ. of Calif. (2009) 175CA4th 1043, 1048, 96 CR3d 690, 693—motion filed and servedwithout supporting affidavit was invalid (later-filed affidavit insuffi-cient)]

[9:332.5] Postjudgment motions: Although a motion for recon-sideration generally must precede entry of judgment, a court mayreconsider certain postjudgment orders (e.g., motions to vacate, orfor relief from a default judgment). [D.R.S. Trading Co., Inc. v.Barnes (2009) 180 CA4th 815, 820, 103 CR3d 329, 332-333]

[9:339.5] Renewal motions: An “application for the same order”as used in CCP §1008(b) means a motion seeking the same reliefas an earlier motion. [California Correctional Peace Officers Ass’nv. Virga (2010) 181 CA4th 30, 43, 103 CR3d 699, 711—motion forfee award under federal statute after denial of fees under state stat-ute was renewal motion subject to CCP §1008(b)]

On the other hand, a motion seeking additional relief may not beentirely barred by CCP §1008(b). [Standard Microsystems Corp. v.Winbond Elec. Corp. (2009) 179 CA4th 868, 892, 102 CR3d 140,158-159—original motion sought relief from default, later motionsought relief both from default and default judgment ]

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CHAPTER 9 PART II

PROVISIONAL REMEDIES

Preliminary Injunctions

[9:640] Bond requirement may be waived or forfeited by partyto be enjoined: [See Smith v. Adventist Health System/West(2010) 182 CA4th 729, 745-746, 106 CR3d 318, 332-334—impliedwaiver found where party to be enjoined consciously chose not toaddress bond requirement at preliminary injunction hearing]

[9:691] Unfair competition by former employees’ misappro-priation of customer lists and trade secrets: [See RetirementGroup v. Galante (2009) 176 CA4th 1226, 1240, 98 CR3d 585, 595]

• [9:691.5] Uniform Trade Secrets Act preempts commonlaw remedies: [K.C. Multimedia, Inc. v. Bank of AmericaTech. & Operations, Inc. (2009) 171 CA4th 939, 958, 90 CR3d247, 261]

CHAPTER 9 PART III

SANCTIONS

Authority to Impose Sanctions

[9:1008] Arbitrator’s sanctions power: By voluntarily appear-ing for clients in contractual arbitration, attorneys subject themselvesto the jurisdiction of the arbitrator, and become subject to thearbitrator’s rulings, including sanctions orders. [Bak v. MCL Fin’lGroup, Inc. (2009) 170 CA4th 1118, 1126, 88 CR3d 800, 806—arbitration panel had power to sanction party’s counsel for copyingprivileged material]

CCP §128.7 Sanctions

[9:1193] “Hold” on sanctions motion (“safe harbor”): A for-mal motion must be served on the offending party to commence the21-day “safe harbor” period. Informal notice of an intent to seeksanctions is not sufficient. [Martorana v. Marlin & Saltzman (2009)175 CA4th 685, 699, 96 CR3d 172, 182]

• [9:1201] Motion served must contain hearing date: Tosatisfy the “safe harbor” requirement, the motion served on theoffending party must include the time and place of the motionhearing. Serving a second notice stating the time and place ofhearing after the motion is filed does not cure the defect. [Gal-leria Plus, Inc. v. Hanmi Bank (2009) 179 CA4th 535, 538, 101CR3d 803, 805]

[9:1203.2] Sanctions barred if offending motion resolvedduring “safe harbor” period: [See Li v. Majestic Industrial Hills,LLC (2009) 177 CA4th 585, 595, 99 CR3d 334, 341]

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CHAPTER 10

SUMMARY JUDGMENT

Summary Adjudication

[10:39.13] Separate adverse employment actions as separate“causes of action” that may be summarily adjudicated? Indi-vidual discriminatory acts (e.g., involuntary transfer, failure to pro-mote) that do not completely dispose of the cause of action (employ-ment discrimination) cannot be summarily adjudicated. [See Nazirv. United Airlines, Inc. (2009) 178 CA4th 243, 251, 100 CR3d 296,305, fn. 1]

Summary Judgment

[10:51.7] Grounds not pleaded: Although the pleadings gener-ally determine the relevant issues on a summary judgment motion,a party may be permitted “to introduce the defense of privilege in asummary judgment procedure so long as the opposing party hasadequate notice and opportunity to respond.” [Nieto v. Blue Shieldof Calif. Life & Health Ins. Co. (2010) 181 CA4th 60, 75, 103 CR3d906, 918 (emphasis added)]

• [10:51.20] Failure to object to unpleaded claim or defensewaives objection: By opposing a summary judgment motionon its merits, rather than on the basis that a claim or defense wasnot pleaded, the opposing party waives the defect. [SuperiorDispatch, Inc. v. Ins. Corp. of N.Y. (2010) 181 CA4th 175, 193,104 CR3d 508, 522, fn. 11]

[10:98] Format errors in moving party’s papers generally notground for denial of motion: [See Truong v. Glasser (2009) 181CA4th 102, 118, 103 CR3d 811, 824]

[10:156.17] Expert witness declaration not sufficient as evi-dence if contradicted by same expert’s earlier report: [SeeAlvis v. County of Ventura (2009) 178 CA4th 536, 549, 100 CR3d494, 505]

[10:193] Defects in opposing party’s papers generally notground for immediate grant of summary judgment: [See Nazirv. United Airlines, Inc. (2009) 178 CA4th 243, 263, 100 CR3d 296,314]

[10:220.5] Reply papers: Reply papers should be limited toobjections to the opposing party’s evidence and responses to theopposing party’s statement of disputed facts (e.g., by demonstrat-ing why these additional facts do not undermine the material factsset forth in the moving party’s statement). [See Nazir v. United Air-lines, Inc., supra, 178 CA4th at 249, 100 CR3d at 303]

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CHAPTER 11

DISMISSALS

Voluntary Dismissals

[11:6.1] Dismissal effective on eve of hearing: [See Law Of-fices of Andrew L. Ellis v. Yang (2009) 178 CA4th 869, 875-876, 100CR3d 771, 775 (plaintiff’s voluntary dismissal on eve of hearingdefendants’ anti-SLAPP motion)]

[11:18] Dismissal ineffective after dispositive ruling or whereruling in defendant’s favor “inevitable”: [See Law Offices ofAndrew L. Ellis v. Yang, supra, 178 CA4th at 877-878, 100 CR3d at776-777; compare Lewis C. Nelson & Sons, Inc. v. Lynx Iron Corp.(2009) 174 CA4th 67, 76-77, 94 CR3d 468, 474-475—plaintiff’sfailure to oppose motion to confirm settlement did not make judg-ment in defendant’s favor “inevitable” where essential facts disputed]

• [11:21.5] Compare—after failure to oppose meritorioussummary judgment motion: A voluntary dismissal is un-timely after the time allowed for opposing a summary judgmentmotion that effectively negates plaintiff’s claims (see ¶10:189 ).In such a case, the outcome is “inevitable” because plaintiff’sfailure to oppose a meritorious motion is itself ground for sum-mary judgment. [See Cravens v. State Bd. of Equalization(1997) 52 CA4th 253, 257, 60 CR2d 436, 438; and ¶11:25.10 ]

[11:38] Costs recoverable without judgment: A recent caseholds costs may be recovered after a voluntary dismissal without theneed for a judgment of dismissal. [Fries v. Rite Aid Corp. (2009) 173CA4th 182, 187, 92 CR3d 523, 526]

Involuntary Dismissals

[11:203] Tolling of 5-year statute? What conditions result intolling of the 5-year dismissal statute (CCP §583.340) is presentlybefore the California Supreme Court in Bruns v. E-Commerce Ex-change, Case No. S172684 (rev.grntd. 7/22/09).

• [11:261] Court-declared moratorium on trials: A court-declared moratorium on civil trials (for budgetary reasons) mayextend the 5-year period for cases ready for trial while themoratorium was in effect; but not for cases not yet ready for trial(because the moratorium did not prevent the parties from pros-ecuting the action). [Jordan v. Superstar Sandcars (2010) 182CA4th 1416, , CR3d , (2010 WL 569946, *3)]

[11:266.2] Defendant may be estopped to seek dismissal:[See Jordan v. Superstar Sandcars, supra, 182 CA4th at , CR3d at (2010 WL 569946, *3) (rejecting estoppel claim)]

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CHAPTER 12 PART I

CASE MANAGEMENT AND TRIAL SETTING

“Related” Cases Assigned to Same Judge

[12:44.5] Peremptory challenge in related case: A party to acase deemed “related” to an earlier case, and therefore assigned tothe judge handling the earlier case, may peremptorily challenge thatjudge even if he or she did not challenge the judge in the earlier case.No peremptory challenge lies, however, where the later case is a“mere continuation ” of the earlier case—i.e., “arising out of” theoriginal action and with all of the same parties. [See Nutragenetics,LLC v. Sup.Ct. (Cavenah) (2009) 179 CA4th 243, 257-258, 101CR3d 657, 667-668]

Special Case Management Requirements

[12:47.20] “Construction-related accessibility” claims: The“Construction-Related Accessibility Standards Compliance Act”(Civ.C. §55.51 et seq.) establishes special procedures in actions byphysically disabled persons for violation of their right of access topublic places and facilities (e.g., a claim that a public facility is notwheelchair accessible). Defendant in such an action may be entitledto a stay of proceedings and an early evaluation conference if thefacility or premises in question have been inspected by a “certifiedaccess specialist.” [See Civ.C. §55.54(d) (amended 2009)]

Right to Jury Trial

[12:287.1] Taxpayer refund actions? Whether a taxpayer re-fund action against the Franchise Tax Board is a form of commonlaw action (for money had and received) for which there is a right tojury trial is presently before the California Supreme Court in Fran-chise Tax Bd. v. Sup.Ct. (Gonzales), Case No. S176943 (rev.grntd.12/02/09).

CHAPTER 12 PART II

SETTLEMENT PROCEDURES

Mandatory Settlement Conference

[12:551] No monetary sanctions for failure to negotiate ingood faith: [See Vidrio v. Hernandez (2009) 172 CA4th 1443,1455, 92 CR3d 178, 186—trial court erred in sanctioning nonpartyinsurer for failure to participate in good faith in MSC]

Statutory Offers to Compromise (CCP §998)

[12:611.10] Offer may be limited to complaint or cross-complaint: [See One Star, Inc. v. Staar Surgical Co. (2009) 179CA4th 1082, 1096, 102 CR3d 195, 205—where both complaint and

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cross-complaint are pending, offer to settle cross-complaint only maytrigger CCP §998 penalty provisions]

[12:627.3] Withdrawal of subsequent offer “revives” earlieroffer for CCP §998 penalty purposes: [See One Star, Inc. v.Staar Surgical Co., supra, 179 CA4th at 1094-1095, 102 CR3d at204-205—D was entitled to costs from date of its first offer wheresecond offer was withdrawn 13 days after it was served]

Motion to Enforce Settlement (CCP §664.6)

[12:952.1] Before final judgment: CCP §664.6 cannot be uti-lized to enforce a settlement agreement reached after judgment isfinal unless the judgment contains a provision for continuing juris-diction. [Walton v. Mueller (2009) 180 CA4th 161, 172, 102 CR3d605, 613]

[12:962] Settlement “orally before the court”: [See 1538Cahuenga Partners, LLC v. Turmeko Properties, Inc. (2009) 176CA4th 139, 143, 97 CR3d 552, 554—party’s statement to court inchambers that he understood and agreed to settlement satisfied the“orally before the court” requirement, even though he was notpresent in court when his attorney consented on the record]

CHAPTER 13

JUDICIAL ARBITRATION AND MEDIATION

Court-Ordered Mediation

[13:12.61] Confidentiality: Whether mediation confidentiality(under Ev.C. §1119) protects nonprivileged communications be-tween lawyer and client relating to mediation but outside the media-tion, is presently before the California Supreme Court in Cassel v.Sup.Ct. (Wasserman, Comden, Casselman & Pearson, LLP), CaseNo. S178914 (rev.grntd. 2/3/10).

Arbitration

[13:34.1a] Arbitration by stipulation; counsel must haveclient’s authority: [See Toal v. Tardif (2009) 178 CA4th 1208,1222, 101 CR3d 97, 108—lawyer’s signature alone not sufficientevidence that client consented to arbitration]

CHAPTER 14

REPRESENTATIVE AND CLASS ACTIONS

Claims Subject to Mandatory Arbitration

[14:7.10] Effect of “class action waiver” provisions; “uncon-scionability” limitation: [See Franco v. Athens Disposal Co., Inc.(2009) 171 CA4th 1277, 1303, 90 CR3d 539, 559—class action

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waiver in employment arbitration agreement substantively uncon-scionable because it interfered with employees’ ability to pursueremedy for meal and rest period violations; Sanchez v. WesternPizza Enterprises, Inc. (2009) 172 CA4th 154, 174-175, 90 CR3d818, 835—procedurally unconscionable due to asymmetrical bar-gaining power and misleading statements regarding arbitrator selec-tion process]

Class Actions

[14:37.5] Adequacy of representation; credibility issues:Plaintiffs with serious credibility issues (e.g., from inconsistent depo-sition testimony) may not be “adequate” class representatives. [SeeJaimez v. DAIOHS USA, Inc. (2010) 181 CA4th 1286, 1307-1308,105 CR3d 443, 460]

[14:41.3] Effect of plaintiff’s voluntary settlement of individualclaim: A class representative’s voluntary settlement of his or herindividual claim terminates his or her right to proceed on behalf ofthe class. [Watkins v. Wachovia Corp. (2009) 172 CA4th 1576, 1592,92 CR3d 409, 421]

The result is different, however, where plaintiff reserved the right torecover attorney fees from any class recovery. [See Larner v. LosAngeles Doctors Hosp. Assocs., LP (2008) 168 CA4th 1291, 1303-1304, 86 CR3d 324, 334-335]

[14:55.7] Fraud actions; reliance: Plaintiff must plead andprove individualized reliance (“actual reliance”) to establish stand-ing to sue in a class action for fraud. But, at least in actions underthe Unfair Competition Law (UCL) based on a “fraudulent businessact or practice,” plaintiffs need not plead and prove reliance onspecific misrepresentations or false statements if they “were part ofan extensive and long-term advertising campaign.” [In re TobaccoII Cases (2009) 46 C4th 298, 328, 93 CR3d 559, 583 (emphasisadded); see also Cohen v. DIRECTV, Inc. (2009) 178 CA4th 966,981, 101 CR3d 37, 48-49]

• [14:55.8] An “inference of common reliance ” is recognized inclass actions under the Consumers Legal Remedies Act (CLRA)(¶14:18 ff.) based on allegations of a material misrepresentationto the class members, including failure to disclose material facts.[Massachusetts Mut. Life Ins. Co. v. Sup.Ct. (Karges) (2002) 97CA4th 1282, 1293, 119 CR2d 190, 197-198; In re Steroid Hor-mone Product Cases (2010) 181 CA4th 145, 157, 104 CR3d329, 338; McAdams v. Monier, Inc. (2010) 182 CA4th 174, 184-185, 105 CR3d 704, 711]

[14:56.6] Employment claims; meal period and rest breakviolations: Whether class certification is proper on claims for mealperiod and rest break violations is presently before the CaliforniaSupreme Court in Brinker Restaurant Corp. v. Sup.Ct. (Hohnbaum),Case No. S166350 (rev.grntd. 10/22/08).

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[14:67] Tax refund actions: Whether a claim for refund of localtaxes pursuant to Gov.C. §910 can be asserted on behalf of a classis currently before the California Supreme Court in Ardon v. City ofLos Angeles, Case No. S174507 (rev.grntd. 9/9/09).

[14:116.1] Statute of limitations tolled on individual classmembers’ claims; no cross-jurisdictional tolling: The statuteof limitations on class members’ individual claims is tolled while theclass action is pending. This tolling rule does not apply, however,where the class action was filed in another state; or in favor of non-residents of California. [See Hatfield v. Halifax PLC (9th Cir. 2009)564 F3d 1177, 1190 (applying Calif. law)]

[14:134.10] No class action to enforce claims under Fair LaborStandards Act (FLSA): A class action with “opt-out” requirementsdoes not lie to enforce FLSA claims because the FLSA requiresemployees to affirmatively “opt in” to any action to enforce the FLSA.[Haro v. City of Rosemead (2009) 174 CA4th 1067, 1077, 94 CR3d874, 881]

[14:139.11] Settlement; class notice requirement: The courthas the duty to ensure that the class definition is clear and unam-biguous, and to redefine the class, if necessary, to ensure classmembers have adequate notice. [Cho v. Seagate Tech. Holdings,Inc. (2009) 177 CA4th 734, 747-748, 99 CR3d 436, 447]

• [14:139.14] Settlement; fairness hearing: The proponentmust provide the court with sufficient information to support afinding that the settlement is fair, adequate and reasonable. [SeeKullar v. Foot Locker Retail, Inc. (2008) 168 CA4th 116, 132, 85CR3d 20, 33—where some relevant information is privileged,other data must be provided to enable court to assess adequacyof settlement terms]

• [14:139.18c] Settlement; objectors not entitled to discov-ery re settlement negotiations: Without evidence indicatingcollusion between plaintiffs and defendants, objectors are notentitled to discovery concerning settlement negotiations be-tween the parties. [Cho v. Seagate Tech. Holdings, Inc. , supra,177 CA4th at 748, 99 CR3d at 448]

• [14:139.30] Stipulated judgment as res judicata: A judg-ment approving a class action settlement is entitled to the sameres judicata effect as a judgment after trial (see ¶14:165 ). [SeeLouie v. BFS Retail & Commercial Operations, LLC (2009) 178CA4th 1544, 1555, 101 CR3d 441, 449]

[14:145.4] Arbitration to determine fee award to class counsel:Absent evidence of collusion between the parties and counsel, theparties and counsel may agree to arbitrate the amount of fees to beawarded, subject to final approval by the court. Unnamed classmembers do not have the right to participate in the arbitration but dohave the right to object to the arbitration award before it is approved

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by the court. [In re Cellphone Termination Fee Cases (2009) 180CA4th 1110, 1124-1125, 104 CR3d 275, 286-287]

[14:146.10] “Incentive fee” to class representative? [SeeClark v. American Residential Services, LLC (2009) 175 CA4th 785,804, 96 CR3d 441, 455-456 (discussing factors to be considered)]

[14:176] Class counsel’s duties continue until all class issuesresolved: [See Barboza v. West Coast Digital GSM, Inc. (2009)179 CA4th 540, 547, 102 CR3d 295, 299-300—class counsel re-mained obligated, after entry of default judgment, to pursue enforce-ment of judgment and address distribution of recoverable assets]

Representative Suits

[14:226.1] Unfair Competition Law (Bus. & Prof.C. §17200);standing to sue: Only the class action plaintiff must meet Propo-sition 64’s standing requirements (i.e., injury in fact and loss ofmoney or property as a result of the unfair or unlawful practice). Theunnamed class members may be entitled to relief under the UCL“without individualized proof of deception, reliance and injury.” [In reTobacco II Cases (2009) 46 C4th 298, 326, 93 CR3d 559, 581 (in-ternal quotes omitted)]

• [14:226.3] Representative claim must meet class actionrequirements: [See Amalgamated Transit Union, Local 1756,AFL-CIO v. Sup.Ct. (First Transit, Inc.) (2009) 46 C4th 993,1001-1002, 95 CR3d 605, 611-612—labor union could notmaintain UCL action as assignee of its members]

• [14:226.11] Class limited to members entitled to UCLremedies: Although the unnamed class members need notmeet Proposition 64’s standing requirement (above), they mustbe entitled to relief under the UCL. Because the only remediesavailable under the UCL are restitution and injunctive relief (see¶14:227.1 ), the class must be limited to persons entitled to res-titution or injunctive relief as a result of the UCL violation. [SeePfizer Inc. v. Sup.Ct. (Galfano) (2010) 182 CA4th 622, 631-632,105 CR3d 795, 803—where injunctive relief unavailable (be-cause unlawful practice had terminated), UCL class must belimited to persons exposed to defendant’s misrepresentationsbefore purchasing its product and who therefore may be entitledto restitution]

Labor Code Private Attorneys General Act (PAGA, Lab.C. §2698 etseq.)

[14:245] “Bounty hunter lawsuits” need not meet class actionrequirements: Under specified circumstances, an aggrievedemployee may bring a representative action under PAGA “on behalfof himself or herself and other current and former employees” torecover civil penalties for Labor Code violations (so-called “bountyhunter lawsuits”) without meeting class action requirements. [SeeLab.C. §2699(g)(1); Arias v Sup.Ct. (Angelo Dairy) (2009) 46 C4th969, 981-982, 95 CR3d 588, 596-597]

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FILING INSTRUCTIONS

To update your California Practice Guide: Civil Procedure Before Trial,follow the steps below:

VOLUME 1CHAPTERS 1-7

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Chapter 1

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Chapter 4

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VOLUME 2CHAPTERS 8-9

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Chapter 9 Part III

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VOLUME 3CHAPTERS 10-14TABLES & INDEX

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Chapter 10

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Chapter 11

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Chapter 12 Part I

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Chapter 12 Part II

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Chapter 12 Part II (Cont’d)

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Chapter 13

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Chapter 14

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Tables

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Index

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