Preliminary Injunctive Relief and Pretrial adjudication

Question 1

Injunctions

Answer 1

1. like in federal court, can use preliminary injunctions or TRO to preserve status quo

Question 2

Pretrial Adjudication -Voluntary Dismissal

Answer 2

1. plaintiff can move (MOTION) for voluntary dismissal any time subject to court approval
2. whether dismissal is with prejudice is also up to the court
   i. if court grants motion made after trial starts, dismissal is w prejudice unless parties agree or court finds good cause otherwise

Question 3

Pretrial adjudication – involuntary dismissal

Answer 3

1. all courts have authority to dismiss for:
   i. failure to prosecute
   ii. failure to abide by court orders or rule
   iii. various reasons: demurrer, motions to quash, etc.
2. discretionary dismissal: courts have discretionary to dismiss cases not brought to trial (or defendant not served) within 2 years of filing
3. mandatory dismissal: CA courts must dismiss if
   i. case is not brought to trial within 5 years of filing, or
   ii. process is not served within 3 years of filing
   iii. note: do not count time when proceedings were stayed (for 5 year limit) or if stay made service of process impossible (for 3 year limit)

Question 4

Default and Default judgment

Answer 4

1. defendant fails to respond within 30 days of effective service

Question 5

Default

Answer 5

1. entry of default is needed first
2. plaintiff must move for entry of default, needs to show ∆ failed to respond
3. CA: in personal injury and wrongful death cases, and cases where punitive damages sought, plaintiff must serve a statement of damages (bc dollar figure not pleaded) on defendant before a default can be entered

Question 6

Default Judgment

Answer 6

1. default judgement entered by court clerk if all of: (similar to FRCP)
   i. defendant made no response at all,
   ii. claim is for a sum certain in money
   iii. claim is on a contract or judgement
   iv. plaintiff provides an affidavit of relevant facts, and
   v. defendant is not served by publication
2. otherwise, the judge gives default judgment (same as FRCP)
   i. judge will hold a hearing and has discretion to enter judgment
3. pleading is a cap on default judgment in amount and type

Question 7

Motion to Set Aside Default or Default Judgment

Answer 7

1. defendant may move to have the court set aside a default or default judgment
2. requires showing of: (see setting aside judgment)
   i. mistake
   ii. inadvertence
   iii. surprise
   iv. excusable neglect or because service of process did not result in actual notice to ∆

Question 8

Failure to plead facts constituting a cause of action

Answer 8

1. FRCP 12(b)(6)

2. in CA, a general demurrer is used

Question 9

Motion for summary judgment

Answer 9

1. same as FRCP 56 motion for summary judgment
2. terminology:
   i. summary judgment: disposes of all causes of action
   ii. summary adjudication: disposes of a part of a claim (= federal partial SJ)
3. CA requirements
   i. motion may be denied unless movant files and serves a separate statement of the allegedly undisputed material facts, with supporting evidence for each fact
   ii. motion may be granted unless opposing party responds to the filed and served statement by indicating which facts are in dispute, with and supporting evidence for each fact
   iii. judge rules on objections to evidence for that evidence relevant to the motion
   iv. timing: (very weird, unlikely to be tested)
   a. movant must serve all papers at least 75 days before the motion hearing
   b. opponent’s papers must be filed at least 14 days before the hearing
   c. reply papers by the moving party must be filed no more than 5 days before hearing