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Pre-Trial Motions

Presented by:

Peter S. SelvinTroyGould PC

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Pros & Cons of Pre-trial Motions

Pros:• Early ruling helps plan for trial

• Avoids objections in front of jury

• Enables more consideration from the judge

• Shapes opening statements

• May sometimes be case dispositive

• Improves the record on appeal

Cons:• Costly

• Tips off or educates opponent concerning your theory of the case

• Potential adverse impact on settlement if the motion is unsuccessful

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After the Pre-trial Motion

• If you lose, have an alternative plan.

• That alternative plan may include reasserting the points raised in the motion perhaps in a different form. But see CCP § 1008 (reconsideration requires showing of new facts, circumstances or law).

• Appellate relief? Availability of direct appeal depends on whether the Court’s ruling is an appealable order. See CCP § 904.1. Otherwise, a party aggrieved by a trial court’s ruling from a nonappealable order may seek review by a timely writ petition. Fisherman’s Wharf Bay Cruise Comp. v. Superior Court, 114 Cal. App. 4th 309, 319 (2003).

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Motion Basics

• When must it be filed? 16 court days before the hearing. CCP § 1005(b).

• When is the opposition due? 9 court days before the hearing. Id.

• When is the reply due? 5 court days before the hearing. Id.

Note: These are general rules. Some motions have specific notice and hearing requirements. For example, motions for summary judgment must be filed at least 75 days before the hearing and must be heard no later than 30 days before trial. CCP § 437c(a).

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Motion Gross Anatomy

1. Notice of Motion

2. Memorandum of Points and Authorities

3. Declarations and Other Evidence

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Notice of MotionPurpose is to notify adversary of the relief you are seeking, the basis for that relief and the papers and evidence you will be relying on.

Defects or material omissions in the notice of motion may impair the Court’s ability to grant the requested relief. See Luri vs. Greenwald, 107 Cal. App. 4th 1119, 1125 (2003).

Illustration: Failure by the moving party in a sanctions motion to identify the specific party against whom sanctions are sought, and the specific amount of sanctions sought, means that Court is not authorized to award sanctions. See Musealian vs. Adams, 197 Cal. App. 4th 1251, 1256 (2011).

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Memorandum of Points and Authorities

• Simple, short sentences and paragraphs

• Key importance of the introduction – prefigure the structure of your legal argument

• Theme, theme, theme

• “Brevity is the soul of wit.” Hamlet, Act II, scene 2

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Declarations

• Only admissible evidence is allowed in support of or in opposition to motions. See McLellan v. McLellan, 23 Cal. App. 3d 343, 359 (1972). Consider the admissibility of the written testimony as if that witness were testifying live in Court.

• Avoid conclusory statements. For example, “the defendant breached the contract.” See Evid. Code §§ 702, 800; Tri-State Mfg. Co. vs. Superior Court, 224 Cal. App. 2d 442, 445 (1964) (a declaration stating only conclusions or opinions of the declarant is insufficient).

• Headings within the declaration.

• Theme, theme, theme

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Types of Pre-trial Motions*

• Motions to Quash

• Motions to Strike

• Demurrers

• Judgment on the Pleadings

• Summary Judgment Motions

• Motions in Limine

*These are the basics. There are other motions that may also be appropriate pre-trial, especially petitions to compel arbitration (CCP § 1281.2) and anti-SLAPP motions (CCP §§ 425.16 et seq)

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Motions to Quash

Pertinent CCP Section: 418.10• Challenges the court’s jurisdiction

• Extends the defendant’s time to plead until 15 days after the service of a written notice of entry of an order denying the motion, unless the court for good cause extends the time for an additional period not exceeding 20 days. (CCP §418.10(b))

• No act by a party who files a motion under CCP §418.10, including filing an answer, demurrer, or motion to strike, constitutes an appearance, unless the court denies the motion made under §418.10. If the court denies the motion under §418.10, the defendant or cross-defendant is not deemed to have generally appeared until entry of the order denying the motion. (CCP §418.10(e)(1))

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Motions to Quash

Requirements and Purpose• Asserts that court lacks jurisdiction over defendant for one or more of the

following reasons:

– A defendant has insufficient “minimum contacts” with California;

– There is no basis for finding that the court has continuing jurisdiction over a defendant;

– The manner in which a defendant was served with a summons was defective;

– Service of an unlawful detainer action was improper.

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Concrete ExampleMotion to quash service of summons of complaint on the

ground that the Court lacks personal jurisdiction over the defendant

“This case presents the question whether California courts may constitutionally assert jurisdiction over a nonresident individual solely by reason of his execution and alleged breach of a guaranty agreement regarding payment of monies owing to a California corporation. We have concluded that, under the circumstances in the present case, the guaranty transaction was not a sufficient basis on which to sustain personal jurisdiction over the nonresident guarantor, and that accordingly his motion to quash service of summons should have been granted”. Sibley v. Superior Court, 16 Cal. 3d 443 (1976)

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Motions to StrikePertinent CCP Sections: 435-437• Can be made against “the whole or any part” of a pleading (CCP § 435(b)(1))• Extends time to respond to complaint if no demurrer (CCP § 435(c)) but does not

extend time in which to demur (CCP § 435(d))• Quote in motion the precise language to be stricken

Requirements and Purpose• Grounds for motion “shall appear on the face of the challenged pleading or from

any matter of which the court is required to take judicial notice” (CCP § 437(a))• On a motion under CCP § 435, court may “[s]trike out any irrelevant, false, or

improper matter inserted in any pleading” (CCP § 436(a)) or “all or any part of a pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (CCP § 436(b))

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Concrete ExampleMotion to strike prayer in complaint for punitive damages

“…punitive damages are not available against a public entity. The request for punitive damages [in plaintiff’s complaint] against the Regents [of the University of California] should be stricken” Gallo v. Board of Regents of University of California, 916 F.Supp. 1005 (S.D. Cal. 1995).

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DemurrersPertinent CCP Sections: 430.10 – 430.90• Serves as objection to a pleading when the defect appears on the face of the pleading

(CCP § 430.30)

• General and special demurrers distinguished

• Objections to subject matter jurisdiction or failure to state sufficient facts not waived but other objections to complaint not raised by demurrer or answer are waived (CCP § 430.80(a))

• Objections to answer are waived if not raised by demurrer except for an objection that the answer does not state facts sufficient to constitute a defense (CCP § 430.80(b))

• Can be taken “to the whole complaint . . . or to any of the causes of action stated therein” or to “the whole answer or to any one or more of the several defenses” (CCP § 430.50)

• Must “distinctly specify the grounds upon which any of the objections to the [pleading] are taken” or “may be disregarded” (CCP § 430.60)

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Demurrers, cont.

Requirements and Purpose

• Grounds for demurrer against a complaint are in CCP § 430.10

• Grounds for demurrer against an answer are in CCP § 430.20

• When “the ground of demurrer is based on a matter of which the court may take judicial notice . . . such matter shall be specified in the demurrer, or in the supporting points and authorities for the purpose of invoking such notice (CCP § 430.70)

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Demurrers, cont.

Requirements and Purpose, cont.

Newly added requirements effective January 1, 2016

• Meet-and-confer requirement (CCP § 430.41(a)(2))

• Amendments in response to a demurrer must be made no later than the due date of the opposition papers (CCP § 472(a))

• Limitations on successive demurrers and number of amendments in response to demurrer (CCP § 430.41(b))

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Concrete ExampleDemurrer based on defense of res judicata

“The defense of res judicata, involving identity of the cause of action and the parties, usually requires the pleading of facts in the answer. But if all of the facts which show that the action is barred are set forth in the complaint [or by means of documents which are subject to judicial notice], it is subject to general demurrer.” 5 Witkin, California Procedure (3rd edition), Pleading, § 915 at pp. 352-353. See also Legg v. United Benefit Life Ins. Co., 182 Cal.App.2d 573, 580 (1960).

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Judgment on the PleadingsPertinent CCP Section: 438• Functions like a general demurrer but can be a pre- or post discovery motion

• Useful when time to file demurrer has passed. Thus, several California courts have ruled that a motion for judgment on the pleadings may be made at any time prior to the trial or at the trial itself.

• Available to defendant (but not on grounds of special demurrer) or plaintiff

• Can be made almost anytime in a case, though leave of court likely required if a pretrial conference order has been entered or made within 30 days of the date initially set for trial (CCP § 438(e))

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Judgment on the Pleadings, cont.

Purpose and Requirements• A moving defendant must show the complaint “does not state facts sufficient to

constitute a cause of action against the defendant.”

• A moving plaintiff can use the motion to show that “the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.”

• Rules of pleading applicable to demurrers otherwise apply on these motions (e.g., the pleading must allege facts and not merely conclusions).

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Concrete ExampleJudgment on the Pleadings Based on Change in Law

• You represent a defendant in a civil lawsuit. Controlling case authority prevailing at the time you filed your answer allowed the plaintiff to maintain its pending claim against your client.

• Long after your time to file a demurrer has passed, the California Supreme Court issues a precedent-setting ruling which now disallows the plaintiff to maintain its pending claim against your client.

• You now file a motion for judgment on the pleadings.

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Summary Judgment MotionsPertinent CCP Section: 437c; CRC Rule 3.1350 et seq.• A post-discovery motion; tests the evidence supporting causes of action or

defenses• Can be used to dispose of a case entirely or partially – motions for summary

judgment vs. motion for summary adjudication (careful with sequencing, CCP § 437c(f)(2))

• Parties can ask the court by stipulation to hear non-dipositive motions under CCP § 437c(t)

• Note that some cases have special rules for summary judgment or summary adjudication motions (e.g., unlawful detainers) or that such motions may be unavailable by statute or case law in certain other cases (e.g., consumer class actions under CLRA, actions to terminate parental rights, medical malpractice cases involving undertakings, Sexually Violent Predators Act cases, election contests)

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Summary Judgment Motions, cont.

Pertinent CCP Section: 437c; CRC Rule 3.1350 et seq., cont.

• Objections to evidence on the motions must be made by the hearing or are waived (CCP § 437c(b)(5)). But see CCP § 437c(q), added effective January 1, 2016, providing that trial court need only rule on objections as to evidence it deems material for purposes of disposing of the motion. See also Reid vs. Google, Inc., 50 Cal. 4th 512 (2010) (any objections that are presented in connection with a summary judgment motion which are not ruled upon will be deemed overruled and preserved for purposes of appeal).

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Summary Judgment Motions, cont.

Purpose and Requirements

• Summary judgment “shall be granted if all the moving papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (CCP § 437c(c))

• Court may not grant summary judgment “based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.”

• Summary judgment may not be denied solely “on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support” of the motion.

• BUT the Court has discretion to deny summary judgment if the only proof of a material fact is “an affidavit or declaration made by an individual who was the sole witness to that fact” or “if a material fact is an individual’s state of mind . . . and that fact is sought to be established solely by the individual’s affirmation” of that fact. (CCP § 437c(e))

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Summary Judgment Motions Purpose and Requirements, cont.

• Motion for summary adjudication is aimed at one or more causes of action or affirmative defenses, one or more claims for damages, one or more issues of duty, if the moving party contends the cause of action has no merit or there is no affirmative defense, an affirmative defense has no merit, a claim for damages has no merit as specified in CC § 3294, or that one or more defendants “owed or did not owe a duty to the plaintiff or plaintiffs.” (CCP § 437c(f)(1))

• Summary adjudication motion “shall be granted only if completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (CCP § 437c(f)(1))

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Concrete ExampleSummary Judgment Based on Statute of Limitations

Summary judgment granted on statute of limitations grounds where undisputed facts demonstrated that plaintiff knew of the defendant's identity at the inception of the case and therefore could not use a "Doe" amendment under CCP §474 to subsequently join him and thereby avoid dismissal. Scherer v. Mark, 64 Cal. App. 3d 837 (1976):

• “A summary judgment is proper to eliminate sham and baseless claims and pleadings. Upon motion for the summary judgment the trial court had before it sufficient undisputed facts to enable it to make a determination if there was a genuine cause of action or if the action was barred. …

• “The summary judgment did not determine any fact question of negligence. The trial court did not decide if any particular treatment or prescription of drugs or treatment was within the standard of medical care. The court ruled only that plaintiff, who sought to avoid the bar of the statute of limitations, failed to disclose by affidavit, declaration, or other proper statement, any fact which would justify the tolling of the statute of limitations. It was the burden of plaintiff at least to explain what facts existed that tolled the statute.

• “From the pleadings and declarations it is manifest that the one-year provision of the statute of limitation was not tolled. The policy behind the statute of limitations is equally as meritorious a consideration as is the policy of trying cases upon their merits.”

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Motions in LiminePertinent Code Sections:• Motions to establish preliminary facts under Evid. Code §§400–405.

• A motion in limine is a motion made either before any evidence is received, or before the evidence that is the subject of the motion is admitted. The term "in limine" is Latin, meaning "at the very start.“

• Although not expressly authorized by statute, the motion is well recognized in the case law. See, e.g., Akins v County of Sonora (1967) 67 C2d 185, 197; Clemens v American Warranty Co. (1987) 193 CA3d 444, 451. See 3 Witkin, California Evidence §§368–369 (4th ed 2000).

• The court's inherent authority to provide for the orderly conduct of its proceedings (CCP §128(a)(3)) and to exclude evidence under Evid C §352 also implies authority for motions in limine.

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Motions in Limine, cont.

Purpose and Requirements

• Motions in limine can be used to:

– Prevent a party from using or mentioning evidence before the jury;

– Compel a party to present a foundation and offer evidence outside the presence of the jury;

– Attack all evidence on a certain point and possibly eliminate that cause of action or issue; and

– Obtain a ruling on the admissibility of evidence.

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Concrete ExampleMotion in Limine to Exclude Improper Expert Opinion

• Where it is anticipated that an expert may be offered to testify about matters as to which they are not permitted to give their opinions, a motion in limine may be appropriate. Thus, expert witnesses may not opine concerning questions of law. See Downer v. Bramet 152 Cal. App. 3d 837, 842 (1984). An expert witness may not offer their interpretation of a legal statute or regulation, nor may an expert witness give their opinion on how a contract should be legally interpreted. See Summers v. A.L. Gilbert Co. 69 Cal. App. 4th 1155, 1185-90 (1999); see also People v. Torres 33 Cal. App. 4th 37, 45-46 (1995) (expert’s interpretation of the meaning/purpose of a statute held improper); Cooper Companies v. Transcontinental Ins. Co. 31 Cal. App. 4th 1094, 1100 (1995) (expert’s interpretation of the meaning of a contract is inappropriate).

• Accordingly, where it is anticipated that an expert will seek to offer opinion testimony

concerning a statute, regulation, contract or other legal document, or has offered an opinion that such statute or regulation was violated, or such contract breached; any such opinion testimony is properly excluded on an in limine motion.

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About the Speaker

Peter S. SelvinTroyGould PC1801 Century Park East, Suite 1600Los Angeles, CA 90067-2367310-789-1230pselvin@troygould.com