Pre-Trial Law and Motion: What is it Good For?

Presented by: Michael W. Pott and Carl L. Fessenden, Porter ScottModerator: Brian Kelley , Bickmore Risk Services

What is the purpose behind filing certain motions.

What pre-trial motions make sense to file in a case.

What are the costs and benefits of filing pre-trial motions.

Goals of the Presentation

Pre-Answer Motions◦ Demurrers/Motions to Dismiss, Anti-SLAPP

Motions, Motion to Strike Post-Answer Motions

◦ Motion for Judgment on the Pleadings, Discovery Motions, Motion for Summary Judgment

Other Motions ◦ Motion to Seal, Motion for Reconsideration,

Motions for Sanctions, Pitchess Motions for discovery of peace officer personnel records

Three Phases of Motions

What is it?◦ Challenges the legal sufficiency of a complaint or

answer. When do you file it?

◦ Before an answer is filed. What does the court consider in ruling on

the motion?◦ The court takes all facts plead as being true.◦ Cannot consider extrinsic evidence, but can

consider exhibits attached to the Complaint.◦ Can consider judicially noticed documents

Demurrer

Reasons to file a demurrer◦ There is no legal authority for a claim.◦ Plaintiff has failed to plead certain facts and you do

not believe such facts can be alleged.◦ To clean up vague or ambiguous pleadings if you

plan to file a motion for summary judgment.◦ Where a statute of limitations argument appears

obvious from the allegations in the complaint.◦ When you can eliminate a cause of action that

would change the scope of discovery, eliminate potentially damaging evidence or allegations, or result in a defendant being dismissed from the case.

Demurrer

Things to consider when deciding whether to file a Demurrer◦ The court will likely grant leave to amend.◦ You may educate opposing counsel to rethink the

case and come up with a stronger cause of action or satisfy statute of limitations.

◦ How long will the case be delayed?◦ What is the cost for filing and what is my best

case result if the demurrer is granted?

Demurrer

An accident happens on January 1, 2012. Lawsuit filed against the public entity on

May 1, 2012 Plaintiff did not file a government claim

before filing suit.

Q1: Should you file a demurrer?

Q2: What if lawsuit was instead filed on July 5, 2012? Should you file a demurrer?

Hypothetical #1

Employee Edna files a lawsuit claiming she was harassed because of her race and sues her employer and her supervisor, Joe.

There are no allegations in the Complaint that Joe ever said anything that could be construed as harassing based on Edna’s race.

Instead, Edna’s chief complaint is Joe was questioning her work performance and constantly writing her up.

Q: Should you file a demurrer?

Hypothetical #2

It is the federal court equivalent to a demurrer.

Same considerations should be given to filing a motion to dismiss as would be given to filing a demurrer.

Even if may lose on certain claims, it can still be helpful to educate the Court since you will have the same judge throughout the case.

Motion to Dismiss

What is it?◦ A broader motion to strike authorized against SLAPP

suits (Strategic Litigation Against Public Participation)◦ SLAPP suits are lawsuits that can be characterized as

being brought to chill the valid exercise of constitutional rights of freedom of speech.

◦ The Anti-SLAPP statute states persons have a right not to be sued for exercising their constitutional rights

◦ Anti-SLAPP statute allows defendants an opportunity to dispose of certain lawsuits at the pleading stage and avoid incurring costs of litigation.

Anti-SLAPP Motions

Four categories of suits to which the anti-SLAPP statute applies:◦ Statements or writings made before a legislative, executive,

judicial, or other official proceeding;◦ Statements or writings made in connection with an issue

under consideration or review by a legislative, executive, or judicial body, or other legally authorized official proceeding;

◦ Statements or writings made in a place open to the public or in a public forum, in connection with an issue of public interest;

◦ Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with an issue of public interest.

Anti-SLAPP Motions

Examples of occasions when the Anti-SLAPP statute has been found to be applicable.◦ Written communications between a police officer

and the District Attorney;◦ Statements made during investigation of possible

criminal activity;◦ Reports to the police;◦ Gathering information to be used in a television

broadcast;◦ Statements published in a newspaper regarding

the reasons for terminating a school’s football coach;

Anti-SLAPP Motions

Causes of action that can be stricken◦ The critical consideration is whether the cause of

action is based on the defendant’s protected free speech or petitioning activity.

◦ Look at the principal thrust or gravaman of the claim. Defamation Interference with prospective economic advantage Nuisance Intentional and negligent infliction of emotional

distress Invasion of privacy

Anti-SLAPP Motions

When do you file it?◦ Must be filed within 60 days after service of the

Complaint or Amended Complaint or as permitted in the court’s discretion.

◦ Court clerk is required to schedule a hearing on the motion within 30 days of service of the motion unless docket conditions require a later hearing.

Anti-SLAPP Motions

Procedure for motion◦ Defendant must show that plaintiff’s lawsuit or a

cause of action contained therein arises from defendant’s exercise of free speech or the right to petition as defined in the statute.

◦ Defendant can do this by submitting declarations and offering other evidence.

◦ If defendant makes a prima facie showing, then the burden shifts to plaintiff to establish a probability of prevailing on the claim being attacked.

Anti-SLAPP Motions

Benefits to filing motion◦ Limits costs of defending against a lawsuit by

imposing a short timeframe for filing such motions and staying all discovery (unless the discovery is authorized by the court).

◦ Forces the plaintiff to establish a “probability” of prevailing on the merits of the claim – i.e. free discovery.

◦ Exposes the plaintiff to an attorney’s fees award if the motion is granted.

◦ Immediate right to appeal decision.

Anti-SLAPP Motions

Employee Joe has a position with the county that is not a civil service position. He serves at the pleasure of the County Executive Officer.

After various employees complain for over one year about Joe’s handling of situations at work and about his overbearing nature, the CEO decides to terminate him.

Joe is served with a Notice of Intent to terminate and is given an opportunity to provide a response.

Joe hires an attorney who sends a letter to the CEO with Joe’s response. The letter discusses in vague terms some recent medical problems Joe has had. In the letter, the attorney also makes a settlement demand.

A local newspaper reporter hears about the termination and letter and asks for a copy of the letter. The CEO provides a copy of the letter and the reporter summarizes certain portions of it in a newspaper article.

Joe sues the County for invasion of privacy.

Q: Should you file an anti-SLAPP motion?

Hypothetical #3

Purpose: To strike various allegations in a Complaint or the pleading itself.◦ Must be filed at same time as a demurrer.◦ Used to challenge pleadings filed in violation of a

deadline or court order.◦ Can be used to carve out irrelevant, false or

improper matter.◦ Can strike improper damage claims such as

claims for punitive damages asserted against a public entity.

Motion to Strike

Purpose: Has the same function as a demurrer, except filed after an answer has been filed.◦ Statutory (CCP Section 438) and non-statutory

motions◦ Could use this motion to challenge the statute of

limitations issues in the prior hypotheticals. ◦ Cannot raise issue previously raised in a demurrer

unless there has been a material change in applicable law or statute.

Motion for Judgment on the Pleadings

Motion to Compel◦ When plaintiff has failed or refused to respond to

written discovery or deposition questions.◦ When plaintiff has failed to completely respond to

the questions propounded.◦ Monetary or issue sanctions – what do the courts

think about these topics? Motion to Have Requests for Admission

Deemed Admitted◦ When plaintiff has failed to respond.◦ If responses served before hearing, then requests

will not be deemed admitted.

Discovery Motions

Motion to Quash◦ In response to an issued subpoena

Motion for Protective Order◦ To prevent misuse of information provided◦ To excuse production to protect against

oppression or undue burden◦ To extend the time for production

Motion for Mental Examination◦ Necessary if plaintiff will not stipulate to the

examination

Discovery Motions

Defendant asks Plaintiff to produce all documents, photographs and video recordings that support Plaintiff’s claim there was a dangerous condition of public property.

Plaintiff objects to the request claiming the information is protected by the work product privilege.

Q: Should you move to compel production?

Hypothetical #4

What is it?◦ Enables the court to determine the opposing

party’s pleadings lack legal or factual support and to terminate or limit the action accordingly.

◦ Can challenge entire case (motion for summary judgment) or causes of action (motion for summary adjudication)

Avoiding a “triable issue of fact”◦ The Judge does not weigh the evidence or assess

the credibility of witnesses.◦ If a “triable issue of fact” is found, the motion is

denied.

Motion for Summary Judgment

Benefits:◦ If win the motion, then get an immediate

judgment in favor of defendant; thus, avoiding the expense associated with trial.

◦ If part of motion is denied, can still have some claims dismissed which could eliminate defendants, narrow the scope of relevant evidence and shorten the trial.

◦ If the judge who hears the motion is the trial judge, the motion can educate the judge about the weaknesses of the plaintiff’s case.

Motion for Summary Judgment

Costs◦ Can be very costly. Even straight forward motions

can cost up to $10,000. More complex motions can cost in excess of $20,000.

Judicial attitude◦ Judge may not have enough resources to deal

with the motion substantively and instead try to find a technicality upon which to deny the motion.

Effect on settlement

Motion for Summary Judgment

Unless confidentiality is required by law for certain information, court records are presumed open to the public.

A stipulation by the parties to seal records is not sufficient.◦ Cannot move to seal records after the fact.

Court must find an overriding interest exists that overcomes the right of public access to the record, a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed, and no less restrictive means exist to achieve the overriding interest.

Motion to Seal Records

Can be brought under CCP 1008(a) Must be made to same judge who made the

original ruling Must be made within 10 days after service

of the notice at issue Must be based on new or different facts,

circumstances or law◦ Cannot simply reargue points that have already

been argued.

Motion for Reconsideration

C.C.P. Sections128.5 and 128.7

Rule 11 of the Federal Rules of Civil Procedure

Motion for Sanctions

California Evidence Code Section 1043◦ Requests production of peace officer personnel

records◦ Usually defending against requests for these

records

Differences between applicability in Federal Court cases and Superior Court cases.

Pitchess Motion

What is it?◦ A motion to have certain evidence barred from

trial.◦ Not intended for use as a last minute motion for

summary judgment at trial or in moving to dismiss claims at trial.

◦ Only deals with evidentiary issues. Reasons for filing

◦ Have prejudicial or irrelevant evidence excluded from trial.

◦ Educate the judge on certain evidentiary or legal issues.

Motion in Limine

Questions?

Michael Pott and Carl Fessenden, Porter Scott Attorneys◦ www.porterscott.com◦ (916) 929-1481

Brian Kelley, Bickmore Risk Services◦ www.bickmoreriskservices.com◦ (916) 244-1127

Contact Us…