Transcript Pre Trial Motions - California Association of Joint Powers Authorities

Presented by: Michael W. Pott and Carl L. Fessenden, Porter Scott
Moderator: Brian Kelley , Bickmore Risk Services



What is the purpose behind filing certain
motions.
What pre-trial motions make sense to file in a
case.
What are the costs and benefits of filing pretrial motions.

Pre-Answer Motions
◦ Demurrers/Motions to Dismiss, Anti-SLAPP
Motions, Motion to Strike

Post-Answer Motions
◦ Motion for Judgment on the Pleadings, Discovery
Motions, Motion for Summary Judgment

Other Motions
◦ Motion to Seal, Motion for Reconsideration, Motions
for Sanctions, Pitchess Motions for discovery of
peace officer personnel records

What is it?
◦ Challenges the legal sufficiency of a complaint or
answer.

When do you file it?
◦ Before an answer is filed.

What does the court consider in ruling on the
motion?
◦ The court takes all facts plead as being true.
◦ Cannot consider extrinsic evidence, but can
consider exhibits attached to the Complaint.
◦ Can consider judicially noticed documents

Reasons to file a demurrer
◦ There is no legal authority for a claim.
◦ Plaintiff has failed to plead certain facts and you do
not believe such facts can be alleged.
◦ To clean up vague or ambiguous pleadings if you
plan to file a motion for summary judgment.
◦ Where a statute of limitations argument appears
obvious from the allegations in the complaint.
◦ When you can eliminate a cause of action that
would change the scope of discovery, eliminate
potentially damaging evidence or allegations, or
result in a defendant being dismissed from the
case.

Things to consider when deciding whether to
file a Demurrer
◦ The court will likely grant leave to amend.
◦ You may educate opposing counsel to rethink the
case and come up with a stronger cause of action or
satisfy statute of limitations.
◦ How long will the case be delayed?
◦ What is the cost for filing and what is my best case
result if the demurrer is granted?



An accident happens on January 1, 2012.
Lawsuit filed against the public entity on May
1, 2012
Plaintiff did not file a government claim
before filing suit.
Q1: Should you file a demurrer?
Q2: What if lawsuit was instead filed on July 5,
2012? Should you file a demurrer?




Employee Edna files a lawsuit claiming she was
harassed because of her race and sues her
employer and her supervisor, Joe.
There are no allegations in the Complaint that Joe
ever said anything that could be construed as
harassing based on Edna’s race.
Instead, Edna’s chief complaint is Joe was
questioning her work performance and constantly
writing her up.
Q: Should you file a demurrer?



It is the federal court equivalent to a
demurrer.
Same considerations should be given to filing
a motion to dismiss as would be given to
filing a demurrer.
Even if may lose on certain claims, it can still
be helpful to educate the Court since you will
have the same judge throughout the case.

What is it?
◦ A broader motion to strike authorized against SLAPP
suits (Strategic Litigation Against Public Participation)
◦ SLAPP suits are lawsuits that can be characterized as
being brought to chill the valid exercise of constitutional
rights of freedom of speech.
◦ The Anti-SLAPP statute states persons have a right not
to be sued for exercising their constitutional rights
◦ Anti-SLAPP statute allows defendants an opportunity to
dispose of certain lawsuits at the pleading stage and
avoid incurring costs of litigation.

Four categories of suits to which the anti-SLAPP
statute applies:
◦ Statements or writings made before a legislative,
executive, judicial, or other official proceeding;
◦ Statements or writings made in connection with an issue
under consideration or review by a legislative, executive,
or judicial body, or other legally authorized official
proceeding;
◦ Statements or writings made in a place open to the
public or in a public forum, in connection with an issue
of public interest;
◦ Any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right
of free speech in connection with an issue of public
interest.

Examples of occasions when the Anti-SLAPP
statute has been found to be applicable.
◦ Written communications between a police officer
and the District Attorney;
◦ Statements made during investigation of possible
criminal activity;
◦ Reports to the police;
◦ Gathering information to be used in a television
broadcast;
◦ Statements published in a newspaper regarding the
reasons for terminating a school’s football coach;

Causes of action that can be stricken
◦ The critical consideration is whether the cause of
action is based on the defendant’s protected free
speech or petitioning activity.
◦ Look at the principal thrust or gravaman of the
claim.
Defamation
Interference with prospective economic advantage
Nuisance
Intentional and negligent infliction of emotional
distress
 Invasion of privacy





When do you file it?
◦ Must be filed within 60 days after service of the
Complaint or Amended Complaint or as permitted
in the court’s discretion.
◦ Court clerk is required to schedule a hearing on the
motion within 30 days of service of the motion
unless docket conditions require a later hearing.

Procedure for motion
◦ Defendant must show that plaintiff’s lawsuit or a
cause of action contained therein arises from
defendant’s exercise of free speech or the right to
petition as defined in the statute.
◦ Defendant can do this by submitting declarations
and offering other evidence.
◦ If defendant makes a prima facie showing, then the
burden shifts to plaintiff to establish a probability
of prevailing on the claim being attacked.

Benefits to filing motion
◦ Limits costs of defending against a lawsuit by
imposing a short timeframe for filing such motions
and staying all discovery (unless the discovery is
authorized by the court).
◦ Forces the plaintiff to establish a “probability” of
prevailing on the merits of the claim – i.e. free
discovery.
◦ Exposes the plaintiff to an attorney’s fees award if
the motion is granted.
◦ Immediate right to appeal decision.






Employee Joe has a position with the county that is not a civil service
position. He serves at the pleasure of the County Executive Officer.
After various employees complain for over one year about Joe’s handling
of situations at work and about his overbearing nature, the CEO decides
to terminate him.
Joe is served with a Notice of Intent to terminate and is given an
opportunity to provide a response.
Joe hires an attorney who sends a letter to the CEO with Joe’s response.
The letter discusses in vague terms some recent medical problems Joe
has had. In the letter, the attorney also makes a settlement demand.
A local newspaper reporter hears about the termination and letter and
asks for a copy of the letter. The CEO provides a copy of the letter and
the reporter summarizes certain portions of it in a newspaper article.
Joe sues the County for invasion of privacy.
Q: Should you file an anti-SLAPP motion?

Purpose: To strike various allegations in a
Complaint or the pleading itself.
◦ Must be filed at same time as a demurrer.
◦ Used to challenge pleadings filed in violation of a
deadline or court order.
◦ Can be used to carve out irrelevant, false or
improper matter.
◦ Can strike improper damage claims such as claims
for punitive damages asserted against a public
entity.

Purpose: Has the same function as a
demurrer, except filed after an answer has
been filed.
◦ Statutory (CCP Section 438) and non-statutory
motions
◦ Could use this motion to challenge the statute of
limitations issues in the prior hypotheticals.
◦ Cannot raise issue previously raised in a demurrer
unless there has been a material change in
applicable law or statute.

Motion to Compel
◦ When plaintiff has failed or refused to respond to
written discovery or deposition questions.
◦ When plaintiff has failed to completely respond to
the questions propounded.
◦ Monetary or issue sanctions – what do the courts
think about these topics?

Motion to Have Requests for Admission
Deemed Admitted
◦ When plaintiff has failed to respond.
◦ If responses served before hearing, then requests
will not be deemed admitted.

Motion to Quash
◦ In response to an issued subpoena

Motion for Protective Order
◦ To prevent misuse of information provided
◦ To excuse production to protect against oppression
or undue burden
◦ To extend the time for production

Motion for Mental Examination
◦ Necessary if plaintiff will not stipulate to the
examination


Defendant asks Plaintiff to produce all
documents, photographs and video
recordings that support Plaintiff’s claim there
was a dangerous condition of public property.
Plaintiff objects to the request claiming the
information is protected by the work product
privilege.
Q: Should you move to compel production?

What is it?
◦ Enables the court to determine the opposing party’s
pleadings lack legal or factual support and to
terminate or limit the action accordingly.
◦ Can challenge entire case (motion for summary
judgment) or causes of action (motion for summary
adjudication)

Avoiding a “triable issue of fact”
◦ The Judge does not weigh the evidence or assess
the credibility of witnesses.
◦ If a “triable issue of fact” is found, the motion is
denied.

Benefits:
◦ If win the motion, then get an immediate judgment
in favor of defendant; thus, avoiding the expense
associated with trial.
◦ If part of motion is denied, can still have some
claims dismissed which could eliminate defendants,
narrow the scope of relevant evidence and shorten
the trial.
◦ If the judge who hears the motion is the trial judge,
the motion can educate the judge about the
weaknesses of the plaintiff’s case.

Costs
◦ Can be very costly. Even straight forward motions
can cost up to $10,000. More complex motions
can cost in excess of $20,000.

Judicial attitude
◦ Judge may not have enough resources to deal with
the motion substantively and instead try to find a
technicality upon which to deny the motion.

Effect on settlement


Unless confidentiality is required by law for
certain information, court records are presumed
open to the public.
A stipulation by the parties to seal records is not
sufficient.
◦ Cannot move to seal records after the fact.

Court must find an overriding interest exists that
overcomes the right of public access to the
record, a substantial probability exists that the
overriding interest will be prejudiced if the record
is not sealed, and no less restrictive means exist
to achieve the overriding interest.




Can be brought under CCP 1008(a)
Must be made to same judge who made the
original ruling
Must be made within 10 days after service of
the notice at issue
Must be based on new or different facts,
circumstances or law
◦ Cannot simply reargue points that have already
been argued.


C.C.P. Sections128.5 and 128.7
Rule 11 of the Federal Rules of Civil
Procedure

California Evidence Code Section 1043
◦ Requests production of peace officer personnel
records
◦ Usually defending against requests for these
records

Differences between applicability in Federal
Court cases and Superior Court cases.

What is it?
◦ A motion to have certain evidence barred from trial.
◦ Not intended for use as a last minute motion for
summary judgment at trial or in moving to dismiss
claims at trial.
◦ Only deals with evidentiary issues.

Reasons for filing
◦ Have prejudicial or irrelevant evidence excluded
from trial.
◦ Educate the judge on certain evidentiary or legal
issues.

Michael Pott and Carl Fessenden, Porter Scott
Attorneys
◦ www.porterscott.com
◦ (916) 929-1481

Brian Kelley, Bickmore Risk Services
◦ www.bickmoreriskservices.com
◦ (916) 244-1127