Pretrial Adjudication CA

Question 1

Voluntary Dismissal

Answer 1

P can move to dismiss any time before trial starts.

The decision to dismiss is for the court to make, as well as whether the dismissal is with or without prejudice is up to the court.

If P moves for voluntary dismissal AFTER trial starts, and the court grants it, the dismissal is with prejudice unless the parties agree otherwise or the court finds good cause to dismiss without prejudice.

Question 2

Involuntary Dismissal

Answer 2

All courts have authority to dismiss for failure to prosecute, failure to abide by court orders, and for the various reasons that can be raised by demurrer, motions to quash, etc.

California state courts also have DISCRETION to dismiss if the case has not been brought to trial (or defendant has not been served with process) within two years of filing.

In California, the court MUST dismiss if:
(1) the case has not been brought to trial within five years of filing (excluding all periods when the case was stayed) or
(2) process has not been served within three years of filing (excluding time where a stay made it impossible to serve process)

Question 3

When is a Defendant Subject to Default Judgement

Answer 3

If the defendant fails to respond to the complaint within 30 days of the effective date of service of process on him

Question 4

What must P’s application for entry of default include?

Answer 4

An affidavit stating that a copy of the application has been mailed to the defendant or the defendant’s attorney of record.

Question 5

When can Default Judgement be Entered by the Clerk?

Answer 5

(1) the defendant has made no response at all (that is, he has not appeared)

(2) the claim is on a contract or judgment

(3) the claim is for a sum certain in money

(4) the defendant was not served by publication, and

(5) the plaintiff provides an affidavit stating relevant facts.

If ANY of these are not true, the clerk cannot enter the judgment and the claimant must go to the court to get judgment. The court will hold a hearing and has discretion to enter judgment.

Question 6

Setting Aside the Default or Default Judgment

Answer 6

The defendant may move to set aside default or default judgment and for leave to defend the case based on:
- Mistake
- Inadvertence
- Surprise
- Excusable neglect
- Service of process did not result in actual notice to the defendant.