California Specific Issues Flashcards
Arbitration: Contractual
BLL: contracts to arbitrate are enforceable
- parties may
- agree to arbitrate at any stage
- choose rules
- issue subpoenas to compel witnesses and/or produce documents
- petition court to confirm, vacate, or correct arbitration award
- appeal as in ordinary civil actions
*D may file petition to arbitrate in lieu of Answer to Complaint
Arbitration: Judicial
- Judge may order when amount in controversy will not exceed $50,000
- Judge’s order to arbitrate is not appealable
- Right to trial de novo remains (preserves right to jury trial)
- If trial, less favorable judgment may trigger 998 “offer of judgment” consequences
Arbitration: International Commercial
- when parties/businesses in different countries
- used to circumvent forum non conveniens dismissal
- note: not likely to be tested on essays
Fast Track
- litigation delay reduction program
- requirements differ, court by court
- trial court delay reduction Act empower court to dismiss:
- when Ps do not comply with fast track rules
- court must give notice to P AND give P opportunity to be heard
Diligent prosecution
- service: within 3 years of filing (except fast track - by local rule, often 60 days)
- court has discretion to dismiss after 2 years for lack of service
- court must dismiss after 5 years (discretionary - may be 2 or 3)
Statute of Limitations
- Begins with infliction of appreciable/actual harm (accrual SOL)
- SOL tolled if:
- D not in CA when cause of action arose (commences when D returns to CA); OR
- D incapacitated; OR
- waived by signed writing
2 types of SOL:
- accrual: styled statutes
- discovery: styled statutes - reduce discovery time to 1 year, as in medical/legal malpractice actions (accrual applies, but discovery reduces SOL to 1 year after discovery)
Anti-SLAPP Motions
Anti-Strategic Lawsuit Against Public Participation
-special motion to strike
2 step process:
- D in a suit shows challenged c/a arises out of a protected activity and so files anti-SLAPP motion
- if yes (protected activity), then P must show reasonable probability of success on the merits
SLAPP: general points
-applies only to a c/a arising from D’s furtherance of a constitutional right of petition or free speech in connection with a public issue (commercial activity is NOT a basis for anti-SLAPP motions)
- purpose:
- protect individuals who validly exercise free speech rights from being sued in retaliation
- screen out claims with dubious merit
- does not apply to commercial speech
- policy:
- to encourage continued participation in matters of public significance; prevent chilling of such participation through abuse of process
SLAPP: process
- file within 60 days of service of Complaint
- all discovery is immediately stayed
- P must state and establish a legally sufficient claim
SLAPP: applications
- applies to every malicious prosecution action
- SLAPP lawsuits are filed solely for delay and distraction, and to punish activists with litigation when they exercise a right to petition the government for redress of greivances
-the anti-SLAPP motion requires Ps to demonstrate a legally sufficient claim that is substantiated (i.e. supported by competent, admissible evidence)
SLAPP: unique features
- when filed, discovery proceedings are stayed until notice of entry of order ruling on motion
- must submit information to judicial council so that information transmitted pursuant to motion becomes a matter of public record
- statutory atty’s fees go to prevailing party
SLAPP: definitional focus
- on D’s activity
- activity must be protected speech or petitioning
- nature and form of action not critical; rather that it is against one who has exercised certain rights
- D must show intent to chill
- P must show a reasonable probability of recovery
