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.
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Marc Lewis will be a featured speaker at Pincus Professional Education’s Federal Court Boot Camp Conference: How To Practice In Federal Court, being held in San Francisco on June 5, 2014. The full day seminar will cover the nuts and bolts of practicing in Federal Court with experienced practitioners and judges sharing their tips and advice.
Lewis & Llewellyn attorney Ryan Erickson was recently interviewed on the NBC evening news concerning a lawsuit the firm recently filed against the Belmont-Redwood Shores School District. The lawsuit arises out of horrific sexual abuse suffered by the firm’s client at the hands of a school janitor when she was just twelve years old.
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.
We are pleased to announce that Lewis & Llewellyn associate Evan Burbidge was recently appointed to the Executive Committee of the Bar Association of San Francisco’s (BASF) Barristers Litigation Section. Evan is a longtime member of the BASF, and recently served on a committee to review and respond to proposed admissions reforms for California attorneys.
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.
On May 10, 2013, Paul Llewellyn will join Richard Eichmann from FTI Consulting at Bridgeport’s Conference on Business Damages Analysis and Modeling – Litigating and Proving Damages. Among other things, Paul and Richard will explore the legal criteria for proving damages, the different measures of monetary damages, and approaching the expert deposition.
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.
Last month, the Bar Association of San Francisco named Marc Lewis to its Executive Committee for the Litigation Section. The section seeks to educate San Francisco litigators regarding current litigation developments and serves as a liaison between members of the local bar and the local state and federal bench. The section also comments on proposed changes in statutes and in regulations affecting litigators.