Transcript Overview of Government Tort Claims Act

LITIGATING THE PUBLIC
ENTITY STATE COURT CASE
AN OVERVIEW FROM LAUNCH
TO SPLASHDOWN
Presented by:
Eric A. Gale, Esq.
Brian M. Affrunti, Esq.
Burke, Williams & Sorensen, LLP
2440 West El Camino Real, Suite 620
Mountain View, CA 94040
650.327.2672
Moderated by:
Jack Blyskal, CSAC-EIA
Chief Claims Officer
Materials Prepared by:
Hans A. Gillinger, Esq.
Brian M. Affrunti, Esq.
Eric A. Gale, Esq.
Introduction
• Some cases must be
tried, but most are
not.
• 95% of civil cases
settle.
• Plaintiffs’ counsel
know they earn more
settling cases than
trying them.
2
Valuation
• Consider value to the defense and value to the plaintiff.
• Defense value = (amount at risk) x (% chances of
success) + costs + fees.
• Plaintiff’s value = (amount at risk) x (% chances of
success) - costs + time.
Example:
− $1,000,000 x 50% + $50,000 + $150,000 = $700,000
− $1,000,000 x 50% - $50,000 = $450,000
• Intangibles: Setting precedent, serial claims, etc.
3
1. Determine Amount of Risk
• Contractual damages (policy).
• Defense attorney’s fees.
• Plaintiff’s fees (such as in § 1983 and ERISA cases).
• General damages.
• Punitive damages.
4
2. Chances of Success
• Legal research on key issues.
• Strength of witnesses.
• Strength of judge (willingness to grant SJ/Motion to
Strike punitive damages; jury instructions).
• Risk aversion.
– Highest for plaintiff on contract issue.
– Highest for defense on extra-contractual issues.
5
Pre-Launch Checklist
First Steps When
Served With A Lawsuit
6
Issue a Litigation Hold
to City Staff
• Adverse evidentiary inferences. The trier of fact
may consider a party’s willful suppression of
evidence in determining what inferences to draw
from the evidence or facts. (Evid. Code § 413;
see also BAJI No. 2.03.)
• Discovery sanctions. Monetary, contempt,
issue, evidence, and terminating. (Code Civ.
Proc. § 2023; Cedars-Sinai Medical Center v.
Superior Court (1998) 18 Cal.4th 1, 12; see
Williams v. Russ (2008) 167 Cal.App.4th 1215
(terminating sanctions).)
7
Litigation Hold to Staff of
Defendant
On ________, ______ served City with a complaint alleging causes of action regarding the City’s ____________.
Whenever the City is involved in litigation, it has a duty to preserve all potential evidence that might otherwise be
destroyed in the normal course of business. Therefore, effective immediately, the City is placing a LITIGATION HOLD
on all documents generated, received, or currently existing that may be relevant to this litigation. A LITIGATION HOLD
means that no documents can be destroyed, erased, altered, or removed from the premises until further notice or prior
written approval from the City Attorney's Office. The term “documents” means any: handwriting, typewriting, printing,
Photostatting, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of
recording upon any tangible thing; any form of communication or representation, including letters, words, pictures,
voicemail, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in
which the record has been stored. Examples of documents that should be preserved include drafts, handwritten notes,
calendars, correspondence, e-mail, agendas, minutes, memos, notes, charts, etc.
Subject to this LITIGATION HOLD, you must retain and preserve all documents pertaining to this lawsuit.
You must also retain and preserve all documents pertaining in any way to: (1) ___________; (2)_____________, if
related to or referencing the ______________; and (3) ___________________.
Please forward this litigation hold to all department heads with an instruction that it be distributed to
employees in their department who may have relevant documents.
This “LITIGATION HOLD” will remain in effect until further notice.
Thank you for your cooperation.
8
Summons & Complaint
• Civil litigation matters are initiated by the filing and
service of the summons and complaint.
• A “summons” is a form of court process that
functions to notify defendants that a lawsuit is
pending against them and of defendant’s right to
defend the action.
• In suits against public agencies, service of the
summons and complaint may be made by delivering
to “the clerk, secretary, president, presiding officer or
other head of its governing body.”
9
Service of Process
• This is the phrase used to describe a defendant being
served with a complaint or petition, which notifies the
defendant that a case has been filed against them.
• 3 methods of proper service:
• Personal
• By Mail (check rules)
• By Publication (need permission)
• If the defendant is properly served and fails to “appear”
within 30 days, the case can proceed by default.
10
Check Method of Service
Personal service required. The summons
and complaint/petition must be served on
the “clerk, secretary, president, presiding
officer, or other head of [the] governing
body.” (Code Civ. Proc. ¶ 416.50.)
11
Strategy Considerations –
Service of Summons
• Permitting defense
counsel to accept service
is usually good for
defendants.
• Refusing to accept
service of summons may
be appropriate.
– Avoids running up plaintiff’s
costs for which defendant
may later be liable
– There is no way to prevent
service of summons
12
– Where defendant is a
foreign national, living
abroad
– Where there is any issue
as to the court’s jurisdiction
– Where the three-year
statute for service of
summons has already run
Responding to Summons
• The court will enter a default judgment against
the defendant that fails to timely respond to a
summons; response required within 30 days in
most cases
• Defendants are subject to shorter periods within
which to timely file a response, including:
– Unlawful detainer proceedings (5 days)
– “Reverse Validation Actions” challenging official action
by a public agency (10 days)
13
Service By Mail With
Acknowledgment
• Often, plaintiffs will attempt service of the summons and
complaint by mail accompanied with a request to
acknowledge receipt thereof; if defendant signs and
returns the acknowledgment within twenty days, no
further service is necessary
• Defendant is held liable for cost of additional service if it
refuses to acknowledge receipt.
• Acknowledgment usually benefits defendants because
the responsive pleading is due within thirty days of
execution of the acknowledgement
14
T Minus 31 Seconds
On Board Computers Take
Over Launch Sequence
Check to see if Claim Filed
• Government Claims Act (Gov. Code ¶ 810
et seq.) applies to almost all claims for
“money or damages.” (Gov. Code ¶ 905.)
• Notable exceptions: 42 U.S.C. 1983,
inverse condemnation, workers
compensation, non-monetary claims
(injunctive relief, declaratory relief, and
mandamus).
15
Key Features of Government Claims Act
Authorizing Statute Requirement: Public Entity
Liability is abolished except as provided by statute,
and effectively abolishes all common law or
judicially declared forms of liability for public
agencies, except as provided by state or federal
constitution (Govt. Code § 815(a))
- To state a cause of action against a California
public entity, every fact essential to the
existence of statutory liability must be pled with
particularity, including the existence of a
statutory duty (Searcy v. Hemet Unified Sch.
Dist., 177 Cal.App.3d 792 (1986)
16
Key Features of Government Claims Act
Claim Presentment Requirement: Generally, no suit for
money or damages may be maintained against a
California public entity unless a formal claim has been
presented to such entity, and has been rejected (or is
deemed rejected by the passage of time).
- Perhaps more accurately termed the “Government Claims Act,”
the statutory scheme, with exceptions, apply equally to contract
claims (City of Stockton v. Sup. Ct., (42 Cal.4th 730, 741-42))
- Purposes include ensuring that public entities have adequate
ability and time to investigate and, where appropriate, to settle
claims without the expense of litigation; also enables the public
entity to engage in fiscal planning for potential liabilities, and to
avoid similar happenings in the future
17
What Types of Claims Are Subject to
the Government Claims Act?
Claims subject to Act:
Exempt Claims:
•
•
•
•
•
For money or damages;
Declaratory or injunctive relief actions
where primary purpose is monetary
relief;
Restitution; and for
Reimbursement
•
•
•
•
•
•
•
•
•
•
18
For injunctive, specific, or declaratory
relief;
For recovery of property wrongfully
seized by a public agency;
Mandamus actions;
Tax refunds;
Public employee’s salary/retirement
benefits;
Bond payments;
Unemployment insurance benefits;
Claims based on federal law;
Claims with their own specific claims
filing procedures like FEHA
Benefits payable on public employee’s
death; and
For return of improperly seized items
Government Claims Act Liability
Public Entity Liability:
• Abolished except as provided by statute
• No liability for its breach of a common law duty, but
liability exists for the common law torts of its employees
• Statutory liability arises:
– Vicariously: Injury caused by act/omission of the employee within
scope of employment
– Tortiously: Agency is liable for the act/omission of an
independent contractor to the same extent as if it were not a
public entity
– By breaching a mandatory duty unless reasonable diligence is
shown in discharge of duty
– By a dangerous condition on public property – substantial risk of
injury when property used with due care in a reasonably
foreseeable manner
19
Government Claims Act Liability
Public Employee Liability
• To the same extent as private persons for
own acts
• Liable for common law torts; may assert
any defense available to a private person
• A public employee is entitled to
defense/indemnification from the agency
employer
20
Claim Presentment
• Failure to comply with the claims statute
bars the claim against the public entity and
its employees.
• Claims for personal injury, death, or for
damage to personal property or crops
must be presented to the governmental
agency within six months of accrual of
action; all other claims must be presented
within one year.
21
Claim Presentment – Late Claims
• Late claims must also include an “application for
late filing” that must be filed with the agency
within one year of accrual of claim
• There are four valid reasons for a late claim
under Govt. Code § 911.6(b):
1.
2.
3.
4.
Mistake, inadvertence, surprise or excusable neglect;
Minority of the claimant during six month period
Physical or mental incapacity; and
Death of the claimant
22
T Minus 6.6 Seconds –
Engines Ignite
Responding to the Complaint
• Within thirty days of service of the
complaint, a defendant must serve and
file a responsive pleading in the form of
an Answer, Demurrer, Motion to Strike, or
a Petition to compel arbitration.
• No matter the form of responsive
pleading chosen, it must generally be
filed within 30 days after service of the
complaint unless extended by stipulation
or court order.
23
Liftoff/Launch
T Minus 0 Seconds
Answers
• An answer must include whatever denials
or affirmative defenses are necessary to
controvert the material allegations of the
complaint to put the case “at issue” as to
the matters alleged that the defendant
doesn’t want to admit
• An answer cannot be used to claim
affirmative relief, which requires a
complaint or cross-complaint
• If the complaint is verified, defendant must
verify the answer. Exception: an answer by
a governmental body or officer sued in his
official capacity need not be verified (CCP
§446; Trask v. Sup. Ct. (1994) 22
Cal.App.4th 346, 350).
24
Answers – Denials
• Any material allegation in the complaint that is
not effectively denied, is deemed admitted (CCP
§431.20(a))
• An answering defendant may make a blanket
denial of the whole complaint (a general denial),
or may specify denial as to less than all of the
complaint (a specific denial)
– A general denial is not permitted if the complaint is
verified
25
Other Responses
• Cross-Complaints: File a case against the
Plaintiff or another party about the same
issue
• Joinder: Makes a non-party a party in the
case; anyone who has a stake in the
outcome
26
Demurrer
• A “demurrer” is a pleading used to test the legal
sufficiency of other pleadings by raising issues
of law, not fact, regarding the form or content of
the opposing party’s pleading
• If the defendant has not previously appeared in
the action and the demurrer is the defendant’s
initial pleading, the filing of a demurrer
constitutes a general appearance, subjecting
defendant to the court’s personal jurisdiction
(CCP §1014)
27
Demurrer As Motion/Demurrer As
Pleading
As Pleading:
• A demurrer may be the
defendant’s initial
pleading (CCP §442.10)
• A demurrer is considered
a “responsive pleading” to
the same extent as an
Answer
28
As Motion:
• A demurrer is also an
application for a court
order like a motion
• CCP §1008(a)
authorizing
reconsideration of rulings
on motions applies to
demurrers
• Civil law and motion rules
(California Rules of Court
3.1100-3.1370) apply
generally to demurrers as
well as to motions
Demurrer Limited By Pleading
• A demurrer can be used only to challenge
defects that appear on the face of the pleading
under attack; or from matters outside the
pleading that are judicially noticeable. (Blank v.
Kirwan, 39 Cal.3d 311, 318 (1985))
• “Face of the complaint” includes matters shown
in exhibits attached to the complaint and
incorporated by reference; or in a superseded
complaint in the same action
29
Demurrer Plus
• A demurrer to a complaint (or crosscomplaint) can be filed along with a motion
to strike
• Less commonly, a demurrer can also be
filed in conjunction with an answer
– Answering and demurring at the same time
only makes sense if the demurrer was taken
as to some causes of action in the complaint
and not others; defendant may choose to
answer the remaining counts at the same time
30
Grounds For A Demurrer
CCP §430.10 provides for the grounds for
objection to a complaint or cross-complaint:
• Court lacks subject matter jurisdiction;
• Plaintiff lacks capacity to sue;
• Nonjoinder or misjoinder of parties;
• Another action is pending between the same parties for
the same cause of action;
• Failure to state facts sufficient to constitute a cause of
action;
• Failure to allege whether contract sued upon was written
or oral or implied by conduct; and
• Failure to attach attorney’s certificate required in certain
malpractice actions
31
Failure To Raise Grounds
• Most of the statutory grounds for objection are
automatically waived if not raised either by demurrer or
in the answer as affirmative defenses.
– The failure to state facts sufficient to constitute a cause of action
and the lack of subject matter jurisdiction, however, are not
waived and can be raised at any time.
• The failure to allege compliance with the governmental
claims presentation requirements in an action against a
government entity is a non-statutory ground for general
demurrer (State of Cal. v. Sup. Ct. (Bodde), 32 Cal.4th
1234, 1239 (2004))
32
Special Demurrers – Strategy &
Tactics
• Most grounds for demurrer (“uncertainty,”
“lack of capacity,” “defect or misjoinder of
parties,” etc.) can be raised either by
demurrer or answer
• Generally, the sustaining of a demurrer
does not terminate the proceeding and the
plaintiff is permitted to cure defects by way
of an amended pleading
• Why then are demurrers filed?
33
Special Demurrers – Pros v. Cons
• Advantages:
– Loosely pleaded claims are difficult to deny or
defend; a special demurrer can obtain better
clarity of pleading possibly exposing grounds
for defense now, at summary judgment, or
during litigation
34
Special Demurrers – Pros v. Cons
• Disadvantages:
– Special demurrers are rarely worth the time and
money required to bring them because most often the
defect can be corrected and the court will grant leave
to amend.
– Little is gained apart from delay.
• Alternative:
– Before filing a special demurrer, defendant should call
plaintiff’s counsel and offer to stipulate to plaintiff
amending the complaint to eliminate the defect
35
General Demurrers –
Strategy & Tactics
• There is no problem of waiver with general
demurrers (CCP §430.80) and defendant
can attack the complaint for “failure to
state facts sufficient to constitute a cause
of action” after time to demurrer including
by way of motion for judgment on the
pleadings or for a directed verdict
• Whether to demur is a tactical
consideration
36
General Demurrers – Pros v. Cons
Advantages – A general demurrer makes sense in
several situations:
• Where plaintiff is asserting a novel cause of
action;
• Where it appears plaintiff cannot truthfully
amend to allege omitted facts;
• Where a summary judgment motion is
contemplated; or
• Where statute of limitations defense apparent
from complaint or matters judicially noticeable
37
General Demurrers – Pros v. Cons
• Disadvantages:
–
–
–
–
–
–
Judicial attitudes;
Cost;
Risk of “educating” plaintiff;
Plaintiff’s complaint presumed true on appeal;
Risk of creating bad law on appeal; and
Risk of sanctions
• Alternative:
– Unless the defendant is certain that the defects in the pleadings
cannot be cured by amendment, defendant should always call
plaintiff’s counsel, point out the defect, and offer to stipulate to an
amendment to the pleadings
38
Motions To Strike
• Motions to strike can be used to reach
defects or objections to pleadings that are
not challengeable by demurrer.
Complaints, cross-complaints, answers,
and demurrers are all subject to a motion
to strike (CCP §435(a)(2))
• Can be used to attack the entire pleading,
or any part thereof, even single words or
phrases
39
Motions To Strike
• Can be made at any time within the time allowed
to respond to a pleading, which is typically 30
days from service of the complaint
• Can be made in an unlimited civil case and lies
either:
– To strike any “irrelevant, false or improper matter
inserted in any pleading;” or
– To strike any pleading or part thereof “not drawn or
filed in conformity with the laws of this state, a court
rule or order of court.” (CCP §436))
40
Striking “Irrelevant Matters”
“Irrelevant matters” include:
• Allegations not essential to the claim or defense;
• Allegations “neither pertinent to nor supported
by an otherwise sufficient claim or defense;” or
• A demand for judgment “requesting relief not
supported by the allegations of the complaint or
cross-complaint.” (CCP §431.10(b))
41
Motions For Judgment On The
Pleadings
• A motion for judgment on the pleadings
has the same function as a general
demurrer but is made after the time for
demurrer has expired
• It has a statutory basis since 1994 - CCP
§438
• Except as provided by CCP §438, the
rules governing demurrers apply
42
Grounds For Judgment On The
Pleadings
A motion by defendant or cross-defendant
can be made on the ground that:
• The court “lacks jurisdiction of the subject
of one or more of the causes of action
alleged;” or
• The complaint, or any cause of action
therein, “does not state facts sufficient to
constitute a cause of action against that
defendant.” (CCP §438(c))
43
T Plus 20 Seconds –
Shuttle Rolls Right 180°
Case Flow - CMC
• Case Management Conference
(“CMC”)
– Unlimited civil cases only
– After 120 days, both sides, the lawyers
and the judge meet to talk about how to
handle the case
– 15 days before the first CMC, file a CMC
Statement per California Rule of Court
3.725
– CA Rule of Court 3.724 requires that the
parties talk about how to handle the case,
what issues to settle before trial, and
whether the parties want to try ADR
– Both parties or their counsel must attend!
44
Motions
Calif. Rule of Court 3.1112
• The papers filed in support of a motion must consist of at least the
following:
– a notice of hearing on the motion
– the motion itself
– a memorandum in support of the motion
• Other papers may be filed in support of a motion, including
declarations, exhibits, appendices, and other documents or
pleadings.
• The papers may either be filed as separate documents or combined
in one or more documents if the party filing a combined pleading
specifies these items separately in the caption of the combined
pleading.
45
T Plus 60 Seconds – Shuttle
Engines at Maximum Throttle
DISCOVERY
46
Case Flow - Discovery
• Building Your Case: Investigation and
Discovery
»Many ways to investigate your case: take
photos, conduct interviews, record data
»Free/low-cost information resources: internet,
library, government agencies
»What you gather is called “evidence”
47
Specific Forms of Discovery
• Oral and written Depositions (CCP §§ 2025.0102028.060);
• Interrogatories (CCP § 2030.010);
• Inspection, Testing and Sampling of Documents,
Things, Places, or Electronically-Stored
Information (ESI) (CCP § 2031.010);
• Physical and mental examinations (CCP §
2032.010 et seq.);
• Requests for Admissions (CCP § 2033.010 et
seq.);
48
Specific Forms of Discovery
(continued)
• Simultaneous Exchange of Expert Trial
Witness Information (CCP § 2034.010 et
seq.); and
• Subpoenas to Nonparty Deponents (CCP §
2020.010(a)) or Business Records
Custodians (CCP § 2020.020(b))
49
Discovery – Problems
• Discovery
– If you have trouble getting others to “produce”
(turn over/give you) evidence, there are
several ways to get the evidence
• Motion to Compel
• Subpoenas
50
Discovery – Goals
• Purpose of Discovery:
– Preserving evidence for trial;
– Providing basis for pretrial motions;
– Narrowing issues for trial;
– Promoting out-of-court settlements;
– Avoiding surprises at trial
51
Drawbacks/Disadvantages of
Discovery
• Some drawbacks and disadvantages to
discovery are:
– Costs;
– Discovery “overkill;”
– Discovery disputes; and
– Discovery abuses
52
Discovery Abuses
CCP §2023.010 et seq. sets forth a nonexclusive
list of “misuses” of discovery for which sanctions
may be imposed:
• “Persisting, over objection, and without
substantial justification, in an attempt to obtain
information...outside the scope of permissible
discovery;”
• Using a discovery method improperly;
• Using a discovery method so as to cause
“unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense;”
53
Discovery Abuses (continued)
• Failing to respond or submit to an
authorized method of discovery;
• “Making, without substantial justification,
an unmeritorious objection to discovery;”
• “Making an evasive response to
discovery;”
• “Disobeying a court order to provide
discovery;”
54
Discovery Abuses (continued)
• Making or opposing a motion to compel or
limit discovery unsuccessfully and “without
substantial justification;”
• Failing to meet and confer by failing to
make “a reasonable and good faith
attempt to resolve informally any dispute
concerning discovery” where so required
by the particular discovery method
involved.
55
Discovery
Coito v. Superior Court (2010) 182 Cal.App.4th 758
Written or recorded witness statements that are produced
by the witness or turned over to counsel are not subject to
the attorney work product doctrine.
Coito v. Superior Court (2012) 278 P.3d 860 Absolute work
product protection for witness statements obtained by an
interview conducted by an attorney is decided on a caseby-case basis.
56
Discovery
• Holmes v. Petrovich Development
Company, LLC (2011) 191 Cal.App.4th
1047
E-mails sent to plaintiff’s attorney by way
of company e-mail are NOT protected by
the attorney-client privilege, and
therefore, are discoverable.
57
Do You Know How Many Pages Are
In a Gigabyte of Information?
• Some of the information we need to obtain from the client at the
beginning of a lawsuit includes:
• Document retention policy? Is it in writing? Who enforces it?
• Key custodians: Who are the parties with relevant information?
• What ESI sources are available?
• Network servers? What sort of system of back up is used by client?
What periods of time are currently available and can certain files can
be selectively restored?
• Email servers? What is the time frame at issue? Are there multiple
servers at different locations?
• Hard Drives? What is client’s policy with respect to maintaining hard
drives of former employees and current employees who have
received new computers?
58
California’s E-Discovery Act
• Emergency legislation effective
immediately – June 29, 2009
• Essentially amends CCP 2031 to include:
“copying, testing, or sampling” to each
section that includes the term “inspection”
59
Update Your Standard
Discovery Definitions!
• Defines ESI – “information that is stored in
an electronic medium” CCP §
2016.020(e).
• “‘Electronic’ means relating to technology
having electric, digital, magnetic, wireless,
optical, electromagnetic, or similar
capabilities.” CCP § 2016.020(d)
60
Understand the “Form” of
Production
• The requesting party may specify the form or
forms of production for ESI. CCP §
2031.030(a)(2); tracks FRCP 34(b)(1)(C)
• If no form is specified, default is how ESI is
“ordinarily maintained or in a form that is
reasonably usable” CCP § 2031.280(d)(1);
tracks FRCP 34(b)(2)(E)(ii).
• If form is specified, but you disagree, you must
state the specific objection and the form in which
you will produce. CCP §2031.280(c).
61
Understand the “Form” of
Production
• Are you producing “native” files?
• Are you producing TIFF files? (Tagged
Image File Format)
• Are you producing PDF files?
• Are you producing or receiving “load” files
that provide limited metadata to sort and
manage the ESI that you produce or
receive?
62
Know the Limits
• Party may still seek a protective order, but burden is on
party objecting to demonstrate that ESI is “from a source
that is not reasonably accessible because of undue
burden or expense.” CCP § 2031.060(a)
• Party may also object on grounds that information is
from a source that is not reasonably accessible because
of undue burden or expense. CCP § 2031.210(d); the
party opposing a motion to compel must demonstrate
burden. CCP § 2031.310(d)
63
Know the Limits (cont’d)
• A party need not produce the same ESI in more
than one form. CCP § 2031.280(d)(2).
• The demanding party may have to bear the
costs of translating data into reasonably usable
form. CCP § 2031.280(e) (i.e. be careful what
you wish for).
• Court can set limits to production. CCP §
2031.310(g).
64
Safe Harbors
• “absent exceptional circumstances, the court
shall not impose sanctions on a party or any
attorney of a party for failure to provide ESI
that has been lost, damaged, altered, or
overwritten as the result of the routine, good
faith operation of an electronic information
system”
CCP § § 2031.060(i)(1); 2031.300(d)(1);
2031.310(j)(1); 2031.320(d)(1).
65
Third Parties are Subject to
ESI Requests
• Adds CCP § 1985.5 – Third parties subject
to subpoenas for ESI
66
T Plus 2 Minutes – Fuel Cells
Separate from Shuttle
Motions for Summary Judgment
• A motion for summary judgment (MSJ) asks the
court to determine that the entire action has no
merit and to terminate the action without the
necessity of trial.
• A motion for summary adjudication (MSA) asks
the court to adjudicate the merits of a particular
cause of action or claim for damages, including
a punitive damages request.
67
MSJ/MSA
The court must determine from the evidence
presented that “there is no triable issue as to any
material fact and that the moving party is entitled
to judgment as a matter of law...” (CCP
§437c(c))
– This requirement means that summary judgment can
only be granted where the essential facts are either
conceded or beyond dispute.
– If there is one single material fact in dispute, the
motion must be denied.
68
MSJ/MSA Advantages
• A successful MSJ provides an immediate
judgment and avoids costs of a trial.
• A successful MSA shortens the trial by
eliminating claims or defenses.
• Even an unsuccessful motion may focus
the judge’s attention on the weaknesses of
the plaintiff’s case.
69
MSJ Disadvantages
• A win is always threatened by the risk of
appeal
• If MSJ is denied, there are several
potential adverse consequences:
– MSJ may alert adversary to your evidence on
key issues thereby making adversary better
prepared at trial to oppose your evidence
– Witnesses may be impeached at trial if their
testimony varies from declarations given in
support of the MSJ
70
MSJ/MSA Factors For Filing
• Given the downside risk, weighing the following
factors is important prior to filing an MSJ:
–
–
–
–
–
–
–
Whether the case lends itself to summary judgment;
Likelihood of opposition;
Costs;
Timing;
Probable attitude of judge hearing the MSJ;
Possibility of bifurcation of trial; and
Effect on settlement potential
71
MSJ/MSA – “Has No Merit”
• The motion lies where one or more causes
of action “has no merit...” (CCP
§437c(f)(1))
• A cause of action “has no merit” if:
– Any element of the cause of action (whether
or not separately pleaded) cannot be
established; or
– There is a complete defense to the cause of
action (CCP §437c(f)(1))
72
MSJ/MSA – Recent Changes
• Prior to January 1, 2012, an MSA would lie only
where adjudication would completely dispose of
a cause of action, affirmative defense, or claim
for punitive damages.
• Subsequently, and provided certain conditions
are met, a party may move for summary
adjudication of legal issues or a claim for
damages (other than punitive damages) even
though such adjudication would not completely
dispose of a cause of action, affirmative
defense, or claim for punitive damages. (CCP
§437c(s)
73
MSJ/MSA New Developments
(continued)
Before such a motion may be filed:
• The parties must stipulate such a motion may be
brought (CCP §437c(s)(2));
• The parties must each file a declaration justifying
the filing of the motion (CCP §437c(s)(3)); and
• The court must determine and issue an order
“that the motion will further the interests of
judicial economy, by reducing the time to be
consumed in trial, or [will] significantly increase
the ability of the parties to resolve the case by
settlement.” (CCP §437c(s)(2))
74
MSA Advantages
• At the outset of litigation, claims or
defenses are often raised only to later be
abandoned; as long as they remain, they
must be taken seriously. An MSA can
eliminate those claims that are meritless,
saving the costs of discovery and perhaps
spurring settlement.
75
MSA Disadvantages
• Held to the same high evidentiary standard as
an MSJ such that if there is any triable issue of
material fact as to a claim, MSA will be denied;
• An MSA challenging three causes of action is
essentially three separate motions; and
• Risk that eliminating opponents weakest claims
may deprive defendant of ammunition at trial
76
MSA – Practical Considerations
For Filing
• An MSA is a lot of work;
• Limiting the plaintiff’s claims at trial is not
always a good idea, and defendants may
want to use the plaintiff’s weak claims to
cast doubt on stronger claims; and
• If the court grants the MSA, the defendant
builds in grounds for an appeal of any
defense judgment ultimately obtained at
trial.
77
MSJ/MSA Sanctions
In granting summary judgment, the court may
impose sanctions authorized under other
statutes including:
• For meritless motions, oppositions, or replies
under CCP §128.7;
• For “bad faith” declarations under CCP §437c(j);
• Sanctions for unfounded tort actions against
government or unfounded indemnity action
under CCP §1038; and
• Sanctions award for prior refusal to admit facts
in response to RFAs under CCP §2033.420.
78
T Plus 7.7 Minutes Main Engines Throttle
Down to Keep Acceleration Below 3 g’s
Alternative Dispute Resolution
(ADR)
79
Choosing the Mediator
• Retired judge, sitting magistrate or private
mediator.
• Experience as a mediator.
• Experience in subject matter.
• Acceptance by opposing party
80
When to Propose Mediation
A. When the court says so.
– ENE Conference.
– Compulsory ADR program.
– Local Rule (before Pre-Trial Conference).
81
When to Propose Mediation
B. When you say so.
– Only when you are in a position of strength.
• Before expert witness discovery.
• After winning any significant (but not case
determinative) motion.
• After MSJ filed, but before plaintiff responds.
82
When to Propose Mediation
C. When do you say so?
– Early on in a bad case.
– Early on in a stipulated value case (e.g.,
ERISA).
– Never within two weeks after losing any
motion.
83
Convening
• Consider pre-mediation telephone
conversation with:
– Opposing party.
– Mediator.
– Why? Narrow the issues to discuss.
Consider asking for an agreement on liability
and/or damages.
– Agree on confidential vs. shared briefs
• Caution: pre-mediation negotiations – creating
floors and ceilings.
84
Convening:
Position Paper or Mediation Brief
• (Confidential) Brief should include:
–
–
–
–
Factual history and procedural history;
Information on judge, arbitrator(s) or jury pool;
Factual & legal strengths of each side;
What you believe the other party views as a fair
outcome;
– Barriers to settlement;
– Prior settlement negotiations, if any; and
– Other confidential information the mediator needs in
order to understand the situation.
85
Convening:
Defining Issues in Advance
• Define the issues in advance for the
mediator so the agenda will help you in the
mediation process.
• You can do this by and through:
– Your brief;
– PowerPoint presentation;
– One-page overview; and
– Opening statement
86
Is the Mediator Asking You to ShortCircuit the Negotiation Dance?
•
•
•
•
•
“What’s your best number?”
Using “target” numbers vs. bottom lines
Is “short-circuiting” good or bad?
Advantages and disadvantages?
Making the best use of your mediator
87
T Plus 8.5 Minutes – Main Engines Shut Down
FINAL PREPARATIONS
• Serve Notices to Appear on adverse
parties/witnesses
– 10 days before trial
• Subpoena third-party witnesses/records
– Reasonable Notice
– Consumer/Employment Records – 10 days before
production and 5 days before service
• Preparation of Witness Testimony (both lay and
expert)
88
T Plus 10.5 Minutes – Engines Fire
to Place You in a Low Orbit
ASSIGNMENT TO TRIAL
• Master Calendar Courts
– Trial Judge assigned on first day
of trial
– CCP 170.6 Challenge at time of
assignment
• Single Assignment Courts
– Trial Judge assigned previously
– Time for CCP 170.6 Challenge
has passed
• 15 days after Notice of
Assignment
89
Pre-Trial Conference
• “Housekeeping” Conference with assigned Trial
Judge
• Pre-trial filings
– Motions in Limine
– Trial Brief
– Witness/Exhibit Lists
– Jury Instructions and Verdict Form
– Statement of Case
90
Pre-Trial Filings
• Always check local rules for filing
deadlines and requirements
– Both vary from county to county
91
Motions in Limine
• “At the outset”
• Typically brought to exclude evidence
before trial
– To avoid having to “unring the bell”
– E.G. liability insurance
• Can also be brought to obtain an advance
evidentiary ruling
92
Trial Brief
• Required in many
counties
• Should be
submitted in all
cases
– First opportunity to
“argue” your case
– Educate the Judge
on anticipated
issues
93
Witness/Exhibit Lists
• Encouraged to work with opposing
party(ies) to have joint lists
• Exhibits can also be combined and
exchanged in advance of trial
– More efficient for jury trial
– “Impeachment” exhibits should be
withheld
94
Jury Instructions and
Verdict Form
• Do not rely on the adverse party(ies) to submit
instructions for you.
• Preparation of instructions is time consuming.
– Should be done well in advance of trial
– Great exercise to prepare for trial
– Use CACI instructions when available
– Special instructions when needed
• Make sure that all argument and decisions on
instructions are placed on record.
95
Re-Entry
Jury Selection
• Do not stipulate to smaller jury
• Be prepared – first impression before jury
– Voir dire questions
– Familiarity with selection/seating process
– Number of challenges
• Unlimited challenges for cause
• Peremptory challenges depends on number of “parties” and “sides”
• Voir dire (“to speak the truth”)
– “Argument” is not permitted but great opportunity to lay
groundwork with jury
• Pose questions which introduce favorable facts/law designed to
uncover biases in prospective jurors
• Can use hypothetical questions
96
Opening Statements
• Opportunity to provide “roadmap” for your case
– Develop a theme for your case
– Educate the jury on what evidence will establish
• Chronological
• “Smoking gun” followed by chronological
– Do not promise and fail to deliver!
• Keep it brief depending on complexity of case
– 20 minutes in most cases
97
Evidence at Trial
• Two forms
– Witness testimony
– Documentary evidence
• Admissibility
– “Evidence that is not relevant is not admissible”
(Evid. Code § 350)
– All relevant evidence is admissible “except otherwise
provided by statute.” (Evid. Code § 350)
• Relevancy is the “tendency to prove or disprove a disputed
fact” (Evid. Code § 350)
98
Evidentiary Objections
• Examples include
– Hearsay
– Privileges
• “Official information” privilege for public employees (Evid.
Code §1040)
• Information obtained by public employee in confidence in the
course of his or her official duty
– Evidence Code § 352
• When no other applicable objection
• Applies when the prejudicial value of the evidence is
substantially outweighed by its probative value
– Absent a timely objection or motion to strike, the
error in admitting such evidence is waived
99
Response to Objections
to Evidence
• If objection to key evidence is sustained during
trial, request opportunity to make an offer of
proof as to the purpose and relevance of such
evidence.
• This offer of proof is made outside the presence
of the jury.
• Failure to request to make an offer of proof is a
waiver of right to a new trial or appeal based on
erroneous exclusion of evidence.
100
2000 Feet Slow Down
Direct Examination of Witnesses
• Prepare with all party or party affiliated witnesses
– Be careful testimony does not appear scripted or rehearsed
– Be sure and ask appropriate follow-up questions, even if it
deviates from script
– Bring out damaging evidence on direct examination to lessen
impact of cross-examination by adversary
• Identify all exhibits that need to be introduced through
each witness
– Absent stipulation as to foundation, need to call witnesses who
can lay proper foundation
• E.g. business records – witness must be familiar with preparation
and maintenance of particular record by business
101
Redirect Examination
of Witnesses
• Opportunity to rehabilitate witness following
effective cross-examination
• Use cautiously
– Only on key evidentiary issues following effective
cross-examination
– By emphasizing issues on re-direct, you are
acknowledging this is an important issue for the jury
when that may not be accurate
– Jury may not have appreciated impact of crossexamination
102
Direct Examination of
Adverse Witness
• A party (usually plaintiff) can call an adverse
witness during case-in-chief. (Evid. Code § 776)
• From a defense standpoint, be sure your party
and party affiliated witnesses are prepared.
• If a notice to appear was not served on a party
affiliated witness, keep him or her away from
courtroom during plaintiff’s case-in-chief.
103
Cross-Examination of Witness
• Limited to scope of direct testimony
– Includes all inferences that can be drawn from witnesses’ direct
testimony
– Includes all issues related to witness’ credibility
– Impeach witness with prior statements and/or testimony
• This can include a deposition in another case
– Try to locate transcripts of disclosed experts from prior cases where
that expert testified
• Inadmissible evidence (e.g. hearsay) may become admissible for
purposes of impeachment
• Can ask leading questions
• Can introduce documentary evidence through crossexamination
104
Direct Examination of
Expert Witnesses
•
Must qualify witness as an expert
– Must have special knowledge, skill, experience, training, or education
– Exercise caution in voir dire of opposing expert witness
• Do not want to emphasize the experts qualifications
• Better option is to bring a motion in limine at outset if there is a question of experts
qualifications
• Conversely, if expert is less qualified in a particular area, effective voir dire can alert the
jury to this although the expert is likely to be permitted to testify in that area
•
Scope of admissible expert testimony
– Testimony is related to subject matter that is sufficiently beyond the common
experience
– Must be helpful to the trier of fact
•
•
•
Can solicit opinions through direct questions or hypothetical questions
Experts can opine on ultimate issue
Experts can rely on inadmissible evidence if it is the type upon which
experts in his or her field typically rely
105
Motions During Trial
• Motion for Mistrial
– Attorney or judicial misconduct
• Motion for Nonsuit
–
–
–
–
Defendants only
At conclusion of plaintiff’s opening statement of case-in-chief
Is essentially a demurrer to the evidence
Plaintiff’s have right to reopen evidence
• Motion for Directed Verdict
– Plaintiffs and defendants
– Only at completion of all the evidence
– No right to reopen evidence but Court has discretion to allow
106
Deploy Parachute
Closing Argument
•
•
•
•
•
Plaintiff goes first and last
Argue the facts and apply it to the law
– Renew case theme from opening statement
• Catchphrase or anecdote that will resonate
with the jury
– Demonstrate that you delivered on your promises
– Demonstrate that your opponent failed to deliver
on his or her promises
– Use jury instructions to educate jury
– Walk jury through verdict form and indicate how
and why the jury should answer each question
Argue burden of proof
Comment on successful impeachment of adverse
witnesses
– Failure to explain or deny unfavorable evidence
– Willful suppression, concealment or alteration of
evidence
Objections to closing argument
– Use when appropriate
– Failure to object constitutes a waiver
107
Improper Closing Argument
• Cannot appeal to the prejudice, passions
or sympathy of the jury
• Cannot ask the jury to place themselves in
position of one party (e.g. “Golden Rule”)
108
Splashdown!
(Or Landing for the Shuttle
Enthusiasts)
• The work is done
• Judge will deliver final instructions to jury
and you await verdict
– Judge has discretion on timing for
instructions
– Many judges read preliminary
instructions at time jury is sworn in and
concluding instructions at conclusion of
closing argument
– Judge can also instruct jury in whole or
in part prior to closing argument
109
LITIGATING THE PUBLIC
ENTITY STATE COURT CASE
AN OVERVIEW FROM LAUNCH
TO SPLASHDOWN
Presented by:
Eric A. Gale, Esq.
Brian M. Affrunti, Esq.
Burke, Williams & Sorensen, LLP
2440 West El Camino Real, Suite 620
Mountain View, CA 94040
650.327.2672
Moderated by:
Jack Blysskal, CSAC-EIA
Chief Claims Officer
Materials Prepared by:
Hans A. Gillinger, Esq.
Brian M. Affrunti, Esq.
Eric A. Gale, Esq.