Category: Litigation Tips

At Lewis & Llewellyn, we practice in state and federal courts throughout the country. Attorneys who practice in federal court in Southern California – specifically the Central District of California – should be aware of new local civil rules that took effect on June 1, 2014.  The amended rules chiefly concern, among other things: (i) mandatory chambers copies for all pleadings filed electronically with the court; (ii) formatting for Supreme Court case citations in briefs, and (iii) additional sanctions on attorneys and parties for failure to follow local rules.

These seemingly picayune details can often determine whether a court grants or denies a critical motion.

Until recently, a litigant filing a motion in San Francisco Superior Court could simply notice the hearing for a date of his or her choosing, so long as it complied with the statutory minimum of 16 court days’ notice.  However, an amendment to local rule 8.2 requires the moving party to obtain a hearing date and reservation number by sending an email in advance to the Court.  After obtaining the hearing date, the moving party must file the motion within 24 hours.  The Court is setting limits on the number of matters to be heard each day to better manage the calendar.  In light of the new rule, the practitioner would be well advised to plan in advance and not leave the filing of motions to the last possible day.

Many California attorneys likely assume that you can use denials to requests for admission as admissible trial evidence.  Plaintiff’s counsel in Gonsalvez v. Li, 2015 WL 164606 (Cal. Ct. App. Jan. 13, 2015) made the assumption, and it cost him a jury verdict of more that $1.2 million.

In a recent decision by the California Court of Appeal, the Court held that California’s discovery statutes do not permit use of a party’s denial or lack of admission in response to a request for admission as evidence at trial.  Gonsalvez, 2015 WL 164606 at *7.  In Gonsalvez, a BMW salesman, Kenneth Gonsalvez, sued defendant Ran Li after Li caused an accident during a BMW test drive, resulting in extensive injuries to Gonsalvez.  At trial, plaintiff’s counsel questioned Li about his qualified denials to various requests for admission, including a request that he admit that he was “driving too fast for the conditions.”  Plaintiff’s counsel, over defense counsel’s objections, again cited to Li’s qualified denials in his closing argument, and the jury returned a verdict of more than $1.2 million in Gonsalvez’s favor.

On appeal, Li’s counsel argued that the trial court erred in permitting plaintiff’s counsel to examine Li about his negative responses to Gonsalvez’s requests for admission.  The Court agreed with Li’s counsel, vacating the judgment and remanding the case to the trial court.  After noting a “surprising paucity of relevant authority” on the topic, the Court highlighted that the relevant discovery statues only explicitly “provide that admissions in response to RFA’s are binding on the party at trial.” Id at *5 (emphasis in original); see also Cal. Civ. Proc. Code section 2033.410.  Based on this language, and an analysis of authority in other jurisdictions, the Court ultimately held that “denials of RFA’s are not admissible evidence in an ordinary case, i.e., a case where a party’s litigation conduct is not directly in issue.”  Gonsalvez, 2015 WL 164606 at *7.

This case serves as an important reminder to litigators to flush out denials to requests for admission before trial.  Whether through special interrogatories, depositions, or even meet and confer correspondence, litigators should be sure to get to the bottom of RFA denials before it is too late.

Here at Lewis & Llewellyn, we frequently handle subpoena issuance and compliance in federal court, particularly for our Fortune 500 clients in the technology and financial sectors.  Effective December 1, 2013, Congress has made significant changes to federal subpoena practice.
Among other things:

• All subpoenas will now issue from the court where the case is pending, rather than the court where compliance is required.  Rule 45(a)(2).
• New Rule 45(a)(4) clarifies that before a “documents only” subpoena is served on the witness, notice and a copy of the subpoena must be served on all parties.
• The territorial limitations on subpoenas issued to non-party witnesses have been made more explicit.
• New territorial limitations have been placed on subpoenas issued to parties and party officers.
• Motions to quash will now presumptively be heard in the court for the district where compliance is required.

As most litigators know, e-filing has been commonplace in the Federal Courts for years.  However, the California Superior Courts have been slower to adopt this practice.  Recently, the San Francisco Superior Court has published Proposed Local Rules that, if adopted, may require attorneys to electronically file and serve nearly all civil pleadings effective January 1, 2014.

The proposed rule changes increase significantly the types of cases designated for mandatory e-filing including lawsuits involving breach of contract, business torts, personal injury and unfair competition.  Note, however, that self-represented parties and non-parties are exempt from the proposed e-filing requirements, and would still have to be served conventionally.

The budget challenge faced by the California court system has been publicized for years.  For over 10 years, individualized case management conferences have been considered the best way for the court to oversee civil litigation.  However, as a result of the courts’ very limited resources, effective February 26, 2013, the Judicial Council has amended California Rules of Court, Rules 3.712 and 3.720, to allow individual courts to exempt certain categories of general civil cases from the current mandatory case management rules.  The new rules apply to all cases filed before January 1, 2016.  Pursuant to the recent rule change, the Los Angeles County Superior Court recently exempted personal injury actions and limited civil cases from the mandatory case management conferences.  Instead, the court will set trial dates and make other case management orders, by issuing individual orders in individual cases.  It remains to be seen how other Superior Courts will respond to the recent rule change.  Stay tuned for further updates.

Effective January 1, 2013, California will align more closely with the Federal Rules of Civil Procedure regarding the duration of depositions. On September 17, 2012, the Governor signed into law section 2025.290 of the California Code of Civil Procedure, which will limit the duration of depositions to seven hours.

While the new law limits the duration of a deposition to seven hours—the same length as FRCP Rule 30(d)(1)—the law specifically lacks the FRCP’s limitation that the seven hours of deposition be completed in one day.  For litigators, this means that the duration of depositions may have been reigned in significantly, but there is still room to maneuver and strategically spread the deposition across multiple days, if necessary, as long as the total deposition does not exceed seven hours.

The new law does provide for exceptions.  For example, the parties may stipulate to waive the seven hour limitation.  In addition, the limitation does not apply to certain employee-employer lawsuits.  Finally, litigators should note that this new law does not affect existing rights to move for protective orders regarding the duration of a deposition.

When the New Year comes round and you are scheduling that first deposition of 2013, remember to consider the new seven-hour limitation and plan your depositions or stipulate to a waiver accordingly.

A critical inquiry at the start of any lawsuit is whether your client or adversary is subject to jurisdiction in the chosen forum.  Even experienced litigators often overlook this key issue.
At Lewis & Llewellyn, we specialize in bringing and defending against jurisdictional challenges.  In the last six months, we have:

• Defended a well-known San Francisco internet review site in federal court against a motion to dismiss based on the “first-to-file” rule;
• Brought motions based on forum non conveniens and a motion to dismiss based on a forum selection clause on behalf of a British conglomerate;
• Defended against a motion to dismiss or stay based upon forum non conveniens and a forum selection clause in a high-profile employee lift-out case; and
• Brought a motion to dismiss in Florida federal court based on a lack of personal jurisdiction on behalf of one of the nation’s leading Real Estate Investment Trusts.

Litigating these issues requires a detailed legal analysis.  First, as the United States Supreme Court explained in Burger King Corp. v. Rudzewicz, a defendant may not be sued in a jurisdiction “with which he has established no meaningful contacts, ties or relations.”  In California, when a nonresident defendant challenges the court’s jurisdiction, the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of evidence.  The plaintiff must present specific evidentiary facts through competent, admissible evidence to establish personal jurisdiction over the defendant.

Section 418.10 of the California Code of Civil Procedure provides the exclusive procedure for challenging jurisdiction at the outset of a case.  It provides that a party may move to quash service of summons for lack of jurisdiction “on or before the last day of his or her time to plead.”  However, if a party makes a general appearance before filing a motion to quash, then any objection to the court’s jurisdiction may be waived.  Acts which constitute a general appearance include, among other things, filing a demurrer, motion to strike or answer; propounding discovery; and issuing a deposition subpoena.  Conversely, if a motion to quash is timely made, a defendant’s later pleadings and participation in discovery do not waive lack of personal jurisdiction until after the court enters an order denying the motion and any related writ proceedings are concluded.

The conclusion is clear: if a defendant intends to challenge jurisdiction in California, it is critical that the first step in the lawsuit be a motion to quash service of summons, otherwise the defendant may find that its challenge to the court’s jurisdiction has been waived.

Last week, a number of critical rule changes occurred in both federal and state courts in California.  Civil litigators and in-house counsel should take note of the new rules, which take effect immediately.  We briefly summarize the rule changes below:

Federal Court: The most significant rule changes occurred in the civil local rules for the Northern District of California.  Specifically, the Court amended Rule 5, concerning the electronic filing of documents, placing even greater importance on having an effective e-filing system in place.  The Court also amended Rule 7 (motion practice) to clarify that in all circumstances, opposition briefs are due 14 days after a motion is filed, and reply briefs are due 7 days after an opposition is filed.  The court also clarified that any deadline is extended by 3 days when a party manually files a pleading instead of e-filing it.  Finally, the court extensively amended Rule 11 (attorney discipline).  All of the new rules are available on the NDCA’s website.

State Court:  First, and most significantly, the deadline to deposit jury fees under C.C.P. 631 has changed.  Under the new rule, the advance jury fee deposit must now be made before the initial CMC, and all jury fees posted under the new rule are nonrefundable.  All California litigators should take note of this rule change.  Second, as a result of the enactment of SB 1021, various civil filing fees have been established or increased as of June 27, 2012.  The additional revenue from these fee changes will be used to offset reductions to trial court funding.  For example, the fee to file a complaint, respond to a complaint, or any other first appearance in a case has increased from $410 to $435.  Similarly, the additional fee for complex cases has risen to $1,000.  Other fees have increased, including jury fees, court reporting services and per diem fees, and post-judgment related fees.  Updated fees can be found online.

A strategic lawsuit against public participation (SLAPP) intends to censor, silence, or intimidate individuals by saddling them with a lawsuit until they are silenced.  Most California litigators have at least heard of the statute, but many litigators do not know how the statute applies in federal court.  In an article published in the San Francisco Daily Journal on April 30, 2012, Marc Lewis examines the application of the anti-SLAPP statute in federal court.