CA Adjudication Flashcards
When is a dismissal discretionary?
Discretionary: disc to dismiss not served w/in 2 years. MUST look at
1) if P has a reasonable excuse for delay +
2) if the D was prejudiced.
When is a dismissal mandatory?
Mandatory = P fails to serve complaint w/in 3 years or fails to file Process of Service
What are the two types of Voluntary Dismissals?
Mandatory = P fails to serve complaint w/in 3 years or fails to file Process of Service Discretionary: disc to dismiss not served w/in 2 years. Focus on whether P has a reasonable excuse for delay + if the D was prejudiced.
Pre-Trial Dismissals/ Involuntary–discretionary
Discretionary: disc to dismiss not served w/in 2 years. Focus on whether P has a reasonable excuse for delay + if the D was prejudiced.
What are the guidelines for FAST TRACK cases?
Cases resolved w/in 2 years of filing.
Juvenile, probate, domestic relations exluded.
Complaint served w/in 60 days of filing and response w/in 30 days w/ one continuance = strict compliance.
When can a P can request a Default?
Default: P can request if D fails to timely file answer, demurrer, or other resp.
When is a default judgment filed by a clerk?
1) only in actions arising from a K
OR
2) fixed amount of damages
where service achieved other than by publication.
When is default judgment served by the court?
By court – all other cases court must enter AFTER P provides evidence at prove-up hearing.
(no actions arising from K or fixed amount of damages= clerk)
What is a Prove up hearing.
P appears in person or through affidavits to prove right to relief.
No notice to D. $ based on amount in complaint in non-PI/WD cases or P’s statement of damages.
When does a party move to Setting Aside Default:
(DR MENI)
Setting Aside Default: Discretionary Relief:
Parties MAY move to set aside or vacate judgment, dismissal, or entry of default taken against him through his Mistake, Excusable Neglect, Inadvertence (MENI)
How does a party properly move for Setting Aside Default Judgment?
Default: Discretionary Relief Timing
Timing: w/in reasonable time, not to exceed 6 months after judgment.
Attachments: Motion must include copy of answer or other pleading.
When does a party file for Setting Aside a Default Judgment for Mandatory Relief?
Mandatory Relief/Attorney Fault:
When an attorney is at fault. The party must submit an affidavit of attorney attesting mistake, inadvertence, surprise, or neglect court MUST set aside w/in 6 months of entry.
When would a party move for a Dismissal After Settlement?
Dismissal After Settlement:
If case settles, P must file dismissal w/in 45 days.
Ptys can move court to enter judgment.
Settlement Agreement must provide that court retains jdx to enforce the terms of the settlement until performed.
What is an Offers of Judgment (998 Offer)
1) written offer amount…
2) Pty may recover costs + expert witness fees if :
1. 2. Timing:
Failure to accept
Offers of Judgment (998 Offer): Written offer of amount which will settle case if accepted.
Pty may recover costs + expert witness fees if :
(1) pty submits TIMELY offer; &
(2) pty FAILS TO ACCEPT offer/does NOT obtain more favorable judgment.
Revocable any time +
must be in GOOD FAITH req’d.
Accept must be in writing, signed by atty, + filed.
Failure to accept: P may NOT RECOVER post offer costs + pay D’s post-offer costs. D must pay P’s cost of suit and may be ordered to pay P’s expert witness fees.
When can a party move for Summary Judgment?
Summary Judgment: Any time at least 30 days + 75 days for notice= 105 days before trial to give adequate notice before trial Disputed facts = genuine if evidence is such that a reasonable fact finder could find in favor of nonmoving pty (= facts that could actually affect outcome of case). Similar to fed. + requires SEPARATE STATEMENT of UNdisputed facts. NO TRIABLE ISSUE as to any MATERIAL FACT and the moving party is entitled to a JUDGMENT AS A MATTER OF LAW
SUMMARY JUDGMENT TIMING
Any time at least 30 days + 75 days for notice= 105 days before trial to give adequate notice before trial
SUMMARY JUGMENT MOVING PARTY ENTITLED TO….
NO TRIABLE ISSUE as to any MATERIAL FACT and the moving party is entitled to a JUDGMENT AS A MATTER OF LAW
SUMMARY JUDMENT Disputed facts
Disputed facts = genuine if evidence is such that a reasonable fact finder could find in favor of nonmoving pty (= facts that could actually affect outcome of case).
What is Summary Adjudication and what are the 4 limits to the basis?
(1) COA has no …;
(2) no merit to aff…;
(3) claim for punitive …. ;
(4) D did or did not owe…..
Result = no …..at trial.
MOTION disposes …. matter. Same timing as…..
CA a. Summary Adjudication: One cause action or one legal issue. Limited to 4 bases:
(1) COA has no merit or no defense to COA;
(2) no merit to affirmative defense to COA;
(3) claim for punitive damages has no merit;
(4) D did or did not owe a duty to P.
Result = no evidence at trial.
Mtn disposes of specific matter. Same timing as MSJ.
Burden of persuasion and Burden of Production
What must P prove?
What does D negate?
Who has Burden and when does it shift?
Timing:
Burden of Persuasion: Does not shift b/t parties. Based on standard of proof applied at trial.
P must prove each element support by evidence + no defense.
D must either negate one or more elements, demonstrate no evidence OR P cannot reasonably obtain evidence, OR complete defense.
Burden of Production: Moving = initial burden of evidence/production. Opposg = shifts to present evid of at least one triable issue of material fact. D MUST submit evidence for opposition to MSJ
- Timing = 75 days ntc b4 hearing.
- Opposition = 14 days b4 hearing.
- Reply = 5 days b5 hearing.
- MSJ hrng = 30 days b4 trial.
Summary Adjudication/Judgment Timing???? Not sure about this slide right now.
Summary Adjudication?
Timing = 75 days ntc b4 hearing.
Opposition = 14 days b4 hearing.
Reply = 5 days b5 hearing.
MSJ hrng = 30 days b4 trial.
What are the rules of a prove up hearing?
No notice to D. $ based on amount in complaint in non-PI/WD cases or P’s statement of damages.
FED Setting Aside: Discretionary Relief:
FED Setting Aside: Discretionary Relief:
P may seek if D fails to defend (no response to the complaint)
Based on showing of GOOD CAUSE. Consider P prejudiced, D meritorious defense, and D’s culpable conduct led to default. Courts have strong preference for trials on the merits.
FED: When does a party move for Setting Aside a Default Judgment?
(MENIS)
Parties MAY move to set aside or vacate Judgment, Dismissal, or Entry of Default taken against him through his Mistake, Excusable Neglect, Inadvertence, SURPRISE [NO SURPRISE IN CA]
(MENIS)
What does a Settlement Agreement provide?
Dismissal After Settlement: If case settles, P must file dismissal w/in 45 days. Ptys can move court to enter judgment. Settlement Agreement must provide that court retains jdx to enforce the terms of the settlement until performed.
What happens when a party fails to accept a 998 Offer of Judgment?
Failure to accept: P may NOT RECOVER post offer costs + pay D’s post-offer costs. D must pay P’s cost of suit and may be ordered to pay P’s expert witness fees.
Why would a party move for Summary Judgment?
NO TRIABLE ISSUE as to any MATERIAL FACT and the moving party is entitled to a JUDGMENT AS A MATTER OF LAW.
Disputed facts = genuine if evidence is such that a reasonable fact finder could find in favor of nonmoving pty (= facts that could actually affect outcome of case).
Similar to fed. + requires SEPARATE STATEMENT of UNdisputed facts.
What is the standard for a court to grant Summary Judgment?
Disputed facts = genuine if evidence is such that a reasonable fact finder could find in favor of nonmoving pty (= facts that could actually affect outcome of case). Similar to fed. + requires SEPARATE STATEMENT of UNdisputed facts.
What must accompany a Motion for Summary Judgment?
Evidentiary mtn – support/opposed by sworn pleadings, disc answers, depo test, decs. Light most favorable to the non-movant.
Similar to fed. + requires SEPARATE STATEMENT of UNdisputed facts.
What are the requirements for the Federal Motion for Summary Judgment?
.[F] Summary Judgment: material facts are not disputed, and the undisput facts entitle movant to at least part’l judgmt as MOL.
Disputed facts = genuine if evidence is such that a reasonable fact finder could find in favor of nonmoving pty (= facts that could actly affect outcome of case).
Timing: Up until 30 days after close of disc & no later than 30 days b4 trial. Evidentiary mtn – support/opposed by sworn pleadings, disc answers, depo test, decs. Light most favorable to the non-movant.
When does a party Motion for Summary Adjudication?
A party moves for Summary Adjudication to dispose of specific matter.
Same timing as MSJ.
Any time at least 30 days + 75 days for notice= 105 days before trial to give adequate notice before trial
When moving for Summary Judgment or Summary Adjudication what occurs under the Burden of Persuasion?
Burden of Persuasion: Does not shift b/t parties. Based on standard of proof applied at trial.
P must prove each element support by evidence + no defense.
D must either negate one or more elements, demonstrate no evidence OR P cannot reasonably obtain evidence, OR complete defense.
When moving for Summary Judgment and Summary Adjudication what are the parties’ Burden of Production?
Burden of Production: Moving = initial burden of evidence/production. Opposg = shifts to present evid of at least one triable issue of material fact. D MUST submit evidence for opposition to MSJ
Timing = 75 days ntc b4 hearing.
Opposition = 14 days b4 hearing.
Reply = 5 days b5 hearing.
MSJ hrng = 30 days b4 trial.
