CODE(S) SUPPLEMENT: CAL CIV PRO SOURCE: PROFESSOR SLOMANSON’S PAST FINAL EXAM LIBRARIES

Not all deletions indicated. Last rev: 03/08/12

CALIFORNIA CODE OF CIVIL PROCEDURE

§ 86. Jurisdiction (a) The following civil cases and proceedings are limited civil cases:

(1) Cases at law in which the demand, exclusive of interest, or the value of the property in controversy amounts to twenty-five thousand dollars ($25,000) or less. This paragraph does not apply to cases that involve the legality of any tax, impost, assessment, toll, or municipal fine, except actions to enforce payment of delinquent unsecured personal property taxes if the legality of the tax is not contested by the defendant. * * *

(b) The following cases in equity are limited civil cases: (1) Cases to try title to personal property when the amount involved is not more than twenty-five thousand dollars ($25,000). (2) Cases when equity is pleaded as a defensive matter in any case that is otherwise a limited civil case.

§ 128.5. Frivolous actions or delaying tactics; order for payment of expenses; punitive damages (a) Every trial court may order a party, the party's attorney, or both to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3

§ 128.7. Signature requirement for court papers; certification that specified conditions met; violations; sanctions; punitive damages

(a) Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record * * * .

(b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

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§ 197. Source lists of jurors; contents; data from department of motor vehicles; confidentiality (a) All persons selected for jury service shall be selected at random, from a source or sources inclusive of a representative cross section of the population of the area served by the court. Sources may include, in addition to other lists, customer mailing lists, telephone directories, or utility company lists. (b) The list of registered voters and the Department of Motor Vehicles' list of licensed drivers and identification cardholders resident within the area served by the court, are appropriate source lists for selection of jurors. These two source lists, when substantially purged of duplicate names, shall be considered inclusive of a representative cross section of the population, within the meaning of subdivision (a).

§ 335.1. Two years; actions for assault, battery, or injury to, or for death of, individual caused by wrongful act or neglect Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.

§364. Notice of intention; time; law governing; fictitious name; effect of failure to comply (a) No action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action. (b) No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered. (c) The notice may be served in the manner prescribed in Chapter 5 * * * . (d) If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice. (e) The provisions of this section shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name, as provided in Section 474. * * *

§395. Actions generally; proper court; waiver (a) Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action. If the action is for injury to person or personal property or for death from wrongful act or negligence, the superior court in either the county where the injury occurs or the injury causing death occurs or the county where the defendants, or some of them reside at the commencement of the action, is a proper court for the trial of the action. * * *

§395.5. Actions against corporations or associations; place of trial A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the

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principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases.

§403.020. Amended complaint or other initial pleading; changed jurisdictionalclassification; reclassification (a) If a plaintiff, cross-complainant, or petitioner files an amended complaint or other amended initial pleading that changes the jurisdictional classification from limited to unlimited, the party at the time of filing the pleading shall pay the reclassification fee provided in Section 403.060, and the clerk shall promptly reclassify the case. If the amendment changes the jurisdictional classification from unlimited to limited, no reclassification fee is required, and the clerk shall promptly reclassify the case.

§403.030. Limited civil cases; cross-complainant; caption change; reclassificationIf a party in a limited civil case files a cross-complaint that causes the action or proceeding to exceed the maximum amount in controversy for a limited civil case or otherwise fail to satisfy the requirements for a limited civil case as prescribed by Section 85, the caption of the cross-complaint shall state that the action or proceeding is a limited civil case to be reclassified by cross-complaint, or words to that effect. * * *

§ 403.040. Motion for reclassification (a) The plaintiff, cross-complainant, or petitioner may file a motion for reclassification within the time allowed for that party to amend the initial pleading. The defendant or cross-defendant may file a motion for reclassification within the time allowed for that party to respond to the initial pleading. The court, on its own motion, may reclassify a case at any time. A motion for reclassification does not extend the moving party's time to amend or answer or otherwise respond. The court shall grant the motion and enter an order for reclassification, regardless of any fault or lack of fault, if the case has been classified in an incorrect jurisdictional classification.

* * * (e) Nothing in this section shall be construed to require the superior court to reclassify an action or proceeding because the judgment to be rendered, as determined at the trial or hearing, is one that might have been rendered in a limited civil case.

(f) In any case where the misclassification is due solely to an excess in the amount of the demand, the excess may be remitted and the action may continue as a limited civil case.

§ 410.10. Basis A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.

§415.40. Service on person outside state A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing.

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§416.10. Corporations generally A summons may be served on a corporation by delivering a copy of the summons and the complaint by any of the following methods:

(a) To the person designated as agent for service of process as provided by any provision in * * * the Corporations Code * * * . (b) To the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, [or] * * * a person authorized by the corporation to receive service of process.

§ 418.10. Motion to quash service of summons or to stay or dismiss action; procedure; appearance; waiver (a) A defendant, on or before the last day of his or her time to plead *** may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. (2) To stay or dismiss the action on the ground of inconvenient forum. *** (b) *** The service and filing of the notice shall extend the defendant’s time to plead until 15 days after service upon him or her of a written notice of entry of an order denying his or her motion ***. (c) If the motion is denied by the trial court, the defendant, within 10 days after service *** of a written notice of entry of an order of the court denying his or her motion, or within any further time not exceeding 20 days that the trial court may for good cause allow, and before pleading, may [unlike fed ct must, to avoid waiver of appellate review] petition *** for a writ of mandate ***. The *** service and filing of the [writ] notice shall extend the defendant’s time to plead until *** after service upon him or her of a written notice of the final judgment in the mandate proceeding. * * * (e) A defendant or cross-defendant may make a motion under this section and simultaneously answer, demur, or move to strike the complaint or cross-complaint. (1) Notwithstanding Section 1014, no act by a party who makes a motion under this section, including filing an answer, demurrer, or motion to strike constitutes an appearance, unless the court denies the motion made under this section. * * * (3) Failure to make a motion under this section at the time of filing a demurrer or motion to strike constitutes a waiver of the issues of lack of personal jurisdiction, inadequacy of process, inadequacy of service of process, inconvenient forum, and delay in prosecution.

§425.10. Statement of facts; demand for judgment A complaint or cross-complaint shall contain both of the following: (1) A statement of the facts constituting the cause of action, in ordinary and concise language. (2) A demand for judgment for the relief to which the pleader claims to be entitled. * * * [T]he amount demanded shall be stated.

(b) Notwithstanding subdivision (a), where an action is brought to recover actual or punitive damages for personal injury or wrongful death, the amount demanded shall not

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be stated, but the complaint shall comply with Section 422.30 and, in a limited civil case, with subdivision (b) of Section 70613 of the Government Code.

§425.115. Punitive damages; service of statement; form a) As used in this section: (1) “Complaint” includes a cross-complaint. (2) “Plaintiff” includes a cross-complainant. (3) “Defendant” includes a cross-defendant. (b) The plaintiff preserves the right to seek punitive damages pursuant to Section 3294 of the Civil Code on a default judgment by serving upon the defendant the following statement, or its substantial equivalent: * * *

(c) If the plaintiff seeks punitive damages pursuant to Section 3294 of the Civil Code, and if the defendant appears in the action, the plaintiff shall not be limited to the amount set forth in the statement served on the defendant pursuant to this section. (d) A plaintiff who serves a statement on the defendant pursuant to this section shall be deemed to have complied with Sections 425.10 and 580 of this code and Section 3295 of the Civil Code. (e) The plaintiff may serve a statement upon the defendant pursuant to this section, and may serve the statement as part of the statement required by Section 425.11. (f) The plaintiff shall serve the statement upon the defendant pursuant to this section before a default may be taken, if the motion for default judgment includes a request for punitive damages. (g) The statement referred to in subdivision (b) shall be served by one of the following methods: (1) If the party has not appeared in the action, the statement shall be served in the same manner as a summons pursuant to Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure. (2) If the party has appeared in the action, the statement shall be served upon his or her attorney, or upon the party if he or she has appeared without an attorney, either in the same manner as a summons pursuant to Article 3 (commencing with Section 415.10) of Chapter 4 or in the manner provided by Chapter 5 (commencing with Section 1010) of Title 14.

§425.13. Negligence actions against health care providers; claims for punitive damages; amended pleadings (a) In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first

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set for trial, whichever is earlier. * * * § 425.14. Actions against religious corporations or religious corporation soles; claims for punitive or exemplary damages; amended pleadings; discoveryNo claim for punitive or exemplary damages against a religious corporation or religious corporation sole shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive or exemplary damages to be filed. The court may allow the filing of an amended pleading claiming punitive or exemplary damages on a motion by the party seeking the amended pleading and upon a finding, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established evidence which substantiates that plaintiff will meet the clear and convincing standard of proof under Section 3294 of the Civil Code.

§ 425.16. Anti-SLAPP actions; motion to strike; discovery; remedies* * *

(b)(1) A cause of action against a person arising from any act of that person in

furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

(2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

* * * (c) In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to [CCP] Section 128.5.

* * * (e) As used in this section, “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue” includes:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;

(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest;

(4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

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§425.17. Legislative findings and declarations regarding California Anti-SLAPP Law; application of §425.16* * * (b) Section 425.16 does not apply to any action brought solely in the public interest or on behalf of the general public * * * . (c) Section 425.16 does not apply to any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services, including, but not limited to, insurance, securities, or financial instruments, arising from any statement or conduct by that person.

§430.10. Objection by defendant; grounds The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading. (b) The person who filed the pleading does not have the legal capacity to sue. (c) There is another action pending between the same parties * * * . (d) There is a defect or misjoinder of parties. (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible. * * *

§ 430.30. Objections by demurrer and answer (a) When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading. (b) When any ground for objection to a complaint or cross-complaint does not appear on the face of the pleading, the objection may be taken by answer.

§435. Notice of motion to strike whole or part of complaint (a) As used in this section:

(1) The term "complaint" includes a cross-complaint.(2) The term "pleading" means a demurrer, answer, complaint, or cross-complaint.

(b)(1) Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof * * * .

§ 436. Discretion of court to strike pleadings or portions of pleadings The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

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§437(c) Grounds for and effect of summary judgment; procedure on motion (a) Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct. Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. However, if the notice is served by mail, the required 75-day period of notice shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States, and if the notice is served by facsimile transmission, Express Mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

§474. Defendant designated by fictitious name; amendment; requirements for default judgment; notice to person served When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly; provided, that no default or default judgment shall be entered against a defendant so designated, unless it appears that the copy of the summons or other process, or, if there be no summons or process, the copy of the first pleading or notice served upon such defendant bore on the face thereof a notice stating in substance: “To the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the fictitious name of (designating it).” The certificate or affidavit of service must state the fictitious name under which such defendant was served and the fact that notice of identity was given by endorsement upon the document served as required by this section. The foregoing requirements for entry of a default or default judgment shall be applicable only as to fictitious names designated pursuant to this section and not in the event the plaintiff has sued the defendant by an erroneous name and shall not be applicable to entry of a default or default judgment based upon service, in the manner otherwise provided by law, of an amended pleading, process or notice designating defendant by his true name.

§481.200. Public entity. “Public entity” includes the state, the Regents of the University of California, a county, a city, district, public authority, public agency, and any other political subdivision or public corporation in the state.

§583.210. Time for service and return. (a)The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision an action is commenced at the time the complaint is filed.

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§ 877.6. Determination of good faith of settlement with one or more tortfeasors or co-obligors; review by writ of mandate; tolling of time limitations

(a) (1) Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005. * * *

(b) The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counteraffidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing.

(c) A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.

(d) The party asserting the lack of good faith shall have the burden of proof on that issue. * * *

§904.1. Appealable judgments and orders(a) An appeal, other than in a limited civil case, is to the court of appeal. An

appeal, other than in a limited civil case, may be taken from any of the following: (1) From a judgment, except (A) an interlocutory judgment, other than as

provided in paragraphs (8), (9), and (11), or (B) a judgment of contempt that is made final and conclusive by Section 1222. (2) From an order made after a judgment made appealable by paragraph (1). (3) From an order granting a motion to quash service of summons or granting a motion to stay the action on the ground of inconvenient forum, or from a written order of dismissal under Section 581d following an order granting a motion to dismiss the action on the ground of inconvenient forum. (4) From an order granting a new trial or denying a motion for judgment notwithstanding the verdict. (5) From an order discharging or refusing to discharge an attachment or granting a right to attach order. (6) From an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction. (7) From an order appointing a receiver. (8) From an interlocutory judgment, order, or decree, hereafter made or entered in an action to redeem real or personal property from a mortgage thereof, or a lien thereon, determining the right to redeem and directing an accounting. (9) From an interlocutory judgment in an action for partition determining the rights and interests of the respective parties and directing partition to be made. (10) From an order made appealable by the provisions of the Probate Code or the Family Code. (11) From an interlocutory judgment directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000).

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(12) From an order directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000). (13) From an order granting or denying a special motion to strike under Section 425.16. (b) Sanction orders or judgments of five thousand dollars ($5,000) or less against a party or an attorney for a party may be reviewed on an appeal by that party after entry of final judgment in the main action, or, at the discretion of the court of appeal, may be reviewed upon petition for an extraordinary writ.

§998. Withholding or augmenting costs following rejection or acceptance of offer to allow judgment

(a) The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section. * * * (b) Not less than 10 days prior to commencement of trial or arbitration (as provided in Section 1281 or 1295) of a dispute to be resolved by arbitration, any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. The written offer shall include a statement of the offer, containing the terms and conditions of the judgment or award, and a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted. Any acceptance of the offer, whether made on the document containing the offer or on a separate document of acceptance, shall be in writing and shall be signed by counsel for the accepting party or, if not represented by counsel, by the accepting party.

(1) If the offer is accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall enter judgment accordingly. * * *

(2) If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn, and cannot be given in evidence upon the trial or arbitration. (c)

(1) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant. * * *

§ 1005. Written notice for motions; service and filing of moving and supporting papers

* * * (b) Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court. However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing

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and the place of address are within the State of California, 10 calendar days if either the place of mailing or the place of address is outside the State of California but within the United States, and 20 calendar days if either the place of mailing or the place of address is outside the United States, and if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 16-day period of notice before the hearing shall be increased by two calendar days.

§ 1013. Service by mail, Express Mail or facsimile transmission; procedure; completion of service; extension of time; electronic service permitted (a) In case of service by mail, the notice or other paper shall be deposited in a post office, mailbox, subpost office, substation, or mail chute, or other like facility regularly maintained by the United States Postal Service, in a sealed envelope, with postage paid, addressed to the person on whom it is to be served, at the office address as last given by that person on any document filed in the cause and served on the party making service by mail; otherwise at that party's place of residence. Service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California, 10 calendar days if either the place of mailing or the place of address is outside the State of California but within the United States, and 20 calendar days if either the place of mailing or the place of address is outside the United States. * * *

§ 1021. Attorney's fees; determination by agreement; right to costs Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.

§ 1032. Prevailing party in any action or proceeding; stipulation to alternative procedures (a) As used in this section, unless the context clearly requires otherwise:

* * * (4) "Prevailing party" includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the "prevailing party" shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides.

* * * (b) Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. (c) Nothing in this section shall prohibit parties from stipulating to alternative procedures for awarding costs in the litigation * * * .

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§1033.5 Items allowable. (a) The following items are allowable as costs under Section 1032:

* * * (10) Attorney fees, when authorized by any of the following: (A) Contract. (B) Statute. (C) Law.

§1141.21. Judgment on trial de novo equal to or less favorable than arbitration award for party electing; payment of nonrefundable costs and fees (a) (1) If the judgment upon the trial de novo is not more favorable in either the amount of damages awarded or the type of relief granted for the party electing the trial de novo than the arbitration award, the court shall order that party to pay the following nonrefundable costs and fees, unless the court finds in writing and upon motion that the imposition of these costs and fees would create such a substantial economic hardship as not to be in the interest of justice: (A) To the court, the compensation actually paid to the arbitrator, less any amount paid pursuant to subparagraph (D). * * * (B) To the other party or parties, all costs specified in Section 1033.5, and the party electing the trial de novo shall not recover his or her costs. (C) To the other party or parties, the reasonable costs of the services of expert witnesses, who are not regular employees of any party, actually incurred or reasonably necessary in the preparation or trial of the case. (D) To the other party or parties, the compensation paid by the other party or parties to the arbitrator * * * . (2) Those costs and fees, other than the compensation of the arbitrator, shall include only those incurred from the time of election of the trial de novo. * * *

§1280. DefinitionsAs used in this title:(a) “Agreement” includes but is not limited to agreements providing for valuations, appraisals and similar proceedings and agreements between employers and employees or between their respective representatives. * * *

(e) “Party to the arbitration” means a party to the arbitration agreement:(1) Who seeks to arbitrate a controversy pursuant to the agreement;(2) Against whom such arbitration is sought pursuant to the agreement; * * *

(f) “Written agreement” shall be deemed to include a written agreement which has been extended or renewed by an oral or implied agreement.

§1281. Validity, enforceability and irrevocability of agreementsA written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.

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§1281.2 Order to arbitrate controversy; petition; determination of court. (a) On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that any of the following apply : (1) The right to compel arbitration has been waived by the petitioner. (2) Grounds exist for the revocation of the agreement.

§ 2017.730. Order authorizing the use of technology; notice and motion; criteria forgranting order; stipulated order; rules and regulations

* * * (c) An order authorizing the use of technology in conducting discovery may be made only upon the express findings of the court or stipulation of the parties that the procedures adopted in the order meet all of the following criteria:

(1) They promote cost-effective and efficient discovery or motions relating thereto.

(2) They do not impose or require an undue expenditure of time or money.(3) They do not create an undue economic burden or hardship on any person.(4) They promote open competition among vendors and providers of services in

order to facilitate the highest quality service at the lowest reasonable cost to the litigants.(5) They do not require the parties or counsel to purchase exceptional or

unnecessary services, hardware, or software. (d) Pursuant to an order authorizing the use of technology in conducting discovery, discovery may be conducted and maintained in electronic media and by electronic communication. The court may enter orders prescribing procedures relating to the use of electronic technology in conducting discovery, including orders for service of discovery requests and responses, service and presentation of motions, conduct of discovery in electronic media, and production, storage, and access to information in electronic form.

§2023 Abuses of discovery; sanctions (a) Misuses of the discovery process include, but are not limited to, the following:

* * * (9) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that such an attempt has been made. Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.

§ 2023.010. Conduct subject to sanctionsMisuses of the discovery process include, but are not limited to, the following:

(a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.

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Using a discovery method in a manner that does not comply with its specified procedures.(b) Employing a discovery method in a manner or to an extent that causes

unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

(c) Failing to respond or to submit to an authorized method of discovery.(d) Making, without substantial justification, an unmeritorious objection to discovery.(e) Making an evasive response to discovery.(f) Disobeying a court order to provide discovery.(g) Making or opposing, unsuccessfully and without substantial justification, a motion

to compel or to limit discovery.(h) Failing to confer in person, by telephone, or by letter with an opposing party or

attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.

§2024.020 Discovery Cutoff. (a) Except as otherwise provided in this section, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action. If either of these dates falls on a Saturday, Sunday, or holiday as specified in Section 10, the last day shall be the next court day closer to the trial date. As used in this section, discovery is considered completed on the day a response is due or on the day a deposition begins. Except as provided in subdivision (e), a continuance or postponement of the trial date does not operate to reopen discovery proceedings.

§ 2024.050. Motions to complete discovery closer to initial trial date; reopening of discovery; discretion of court; monetary sanctions (a) On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

§2030.010. Scope of discovery; restrictions (a) Any party may obtain discovery * * * by propounding to any other party to the action written interrogatories to be answered under oath. (b) An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.§2030.030. Special interrogatories; official form interrogatories; restriction on number allowed; numbers in excess of amount allowed (a) A party may propound to another party either or both of the following:

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(1) Thirty-five specially prepared interrogatories that are relevant to the subject matter of the pending action. (2) Any additional number of official form interrogatories * * * that are relevant to the subject matter of the pending action.

§2030.060. Form of interrogatories; content requirements (a) A party propounding interrogatories shall number each set of interrogatories consecutively. (b) In the first paragraph immediately below the title of the case, there shall appear the identity of the propounding party, the set number, and the identity of the responding party. (c) Each interrogatory in a set shall be separately set forth and identified by number or letter. (d) Each interrogatory shall be full and complete in and of itself. No preface or instruction shall be included with a set of interrogatories * * * . (e) Any term specially defined in a set of interrogatories shall be typed with all letters capitalized wherever that term appears. (f) No specially prepared interrogatory shall contain subparts, or a compound, conjunctive, or disjunctive question. (g) An interrogatory may not be made a continuing one so as to impose on the party responding to it a duty to supplement an answer to it that was initially correct and complete with later acquired information.

§2030.070. Supplemental interrogatories; restriction on number permitted; exception (a) In addition to the number of interrogatories permitted by Sections 2030.030 and 2030.040, a party may propound a supplemental interrogatory to elicit any later acquired information bearing on all answers previously made by any party in response to interrogatories. (b) A party may propound a supplemental interrogatory twice before the initial setting of a trial date, and, subject to the time limits on discovery proceedings and motions provided in Chapter 8 (commencing with Section 2024.010), once after the initial setting of a trial date. (c) Notwithstanding subdivisions (a) and (b), on motion, for good cause shown, the court may grant leave to a party to propound an additional number of supplemental interrogatories.

§2030.090. Protective orders; persons entitled to protection; time to file; meet and confer; authorized court action; monetary sanctions (a) When interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance,

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embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That the set of interrogatories, or particular interrogatories in the set, need not be answered.

(2) That, contrary to the representations made in a declaration submitted under Section 2030.050, the number of specially prepared interrogatories is unwarranted.

(3) That the time specified in Section 2030.260 to respond to the set of interrogatories, or to particular interrogatories in the set, be extended.

(4) That the response be made only on specified terms and conditions* * * (c) If the motion for a protective order is denied in whole or in part, the court may order that the party provide or permit the discovery against which protection was sought on terms and conditions that are just. (d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

§ 2030.300. Motion to compel further response; meet and confer declaration; time to serve motion; monetary sanctions; failure to obey court order (a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response * * * . (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration * * * .

§ 2031.280. Production of documents; form; data translation(a) Any documents produced in response to an inspection demand shall either be

produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand.

(b) The documents shall be produced on the date specified in the inspection demand pursuant to paragraph (2) of subdivision (c) of Section 2031.030, unless an objection has been made to that date. If the date for inspection has been extended pursuant to Section 2031.270, the documents shall be produced on the date agreed to pursuant to that section.

(c) If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably

§2032.020. Persons subject to discovery; restrictions; qualifications of examining physicians and psychologists (a) Any party may obtain discovery * * * by means of a physical or mental

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examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action. (b) A physical examination conducted under this chapter shall be performed only by a licensed physician or other appropriate licensed health care practitioner. (c) A mental examination conducted under this chapter shall be performed only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.

§2034.210. Simultaneous exchange of information; time to issue demand; discoverable reports and writings supporting opinionAfter the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each other's expert trial witnesses to the following extent:

(a) Any party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any natural person, including one who is a party, whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial.

§2034.260. Method of exchange; form and contents; expert witness declaration; form and contents (c) If any witness on the list is an expert * * * , the exchange shall also include or be accompanied by an expert witness declaration signed only by the attorney for the party designating the expert, or by that party if that party has no attorney. This declaration shall be under penalty of perjury and shall contain:* * * (2) A brief narrative statement of the general substance of the testimony that the expert is expected to give. * * *

CALIFORNIA CIVIL CODE §47. Privileged publication or broadcastA privileged publication or broadcast is one made:* * *(b) In any

(1) legislative proceeding, (2) judicial proceeding, (3) [or] in any other official proceeding authorized by law * * * .

§51.7. Freedom from violence or intimidation (a) All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or

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property because of political affiliation, or on account of any characteristic listed [above] * * * , or position in a labor dispute, or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive.

§1431. Joint liability An obligation imposed upon several persons, or a right created in favor of several persons, is presumed to be joint, and not several, except as provided in Section 1431.2, and except in the special cases mentioned in the title on the interpretation of contracts. This presumption, in the case of a right, can be overcome only by express words to the contrary.

§1431.2. Several liability for non-economic damages (a) In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount. (b)(1) For purposes of this section, the term “economic damages” means objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment and loss of business or employment opportunities. (2) For the purposes of this section, the term “non-economic damages” means subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.

§3294. Exemplary damages; when allowable; definitions (a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. * * * (c) As used in this section, the following definitions shall apply: (1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

§3295. Protective order; prima facie case of liability prerequisite to certain evidence; discovery limitations; evidence of profits or financial condition (a) The court may, for good cause, grant any defendant a protective order

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requiring the plaintiff to produce evidence of a prima facie case of liability for damages pursuant to Section 3294, prior to the introduction of [trial] evidence of: (1) The profits the defendant has gained by virtue of the wrongful course of conduct of the nature and type shown by the evidence. (2) The financial condition of the defendant. (b) Nothing in this section shall prohibit the introduction of prima facie evidence to establish a case for damages pursuant to Section 3294. (c) No pretrial discovery by the plaintiff shall be permitted with respect to the evidence referred to in paragraphs (1) and (2) of subdivision (a) unless the court enters an order permitting such discovery pursuant to this subdivision * * * [and] the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294. Such order shall not be considered to be a determination on the merits of the claim or any defense thereto and shall not be given in evidence or referred to at the trial. (d) The court shall, on application of any defendant, preclude the admission of evidence of that defendant’s profits or financial condition until after the trier of fact returns a verdict for plaintiff awarding actual damages and finds that a defendant is guilty of malice, oppression, or fraud in accordance with Section 3294. Evidence of profit and financial condition shall be admissible only as to the defendant or defendants found to be liable to the plaintiff and to be guilty of malice, oppression, or fraud. Evidence of profit and financial condition shall be presented to the same trier of fact that found for the plaintiff and found one or more defendants guilty of malice, oppression, or fraud. (e) No claim for exemplary damages shall state an amount or amounts. * * *

Miscellaneous Codes

CALIFORNIA EVIDENCE CODE §1151. Subsequent remedial conductWhen, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.

CALIFORNIA HEALTH AND SAFETY CODE §1234.56 Civil Penalty. This statute creates a private cause of action for any individual who does the following: purchases and consumes an edible drink or food item, from a commercial establishment, and suffers food poisoning as a result. In addition to any compensatory damages, an individual will be entitled to a civil penalty of $500.00 for each proven violation of this provision.

CALIFORNIA GOVERNMENT CODE §945.4 Necessity of written claim acted upon by board or deemed to have been rejected.

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Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division.

§12965(b) * * * An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant's residence or principal office. * * *

§68616 Procedure; time limitations. Delay reduction rules shall not require shorter time periods than as follows: (a) Service of the complaint within 60 days after filing. Exceptions, for longer periods of time,

(1) may be granted as authorized by local rule and (2) shall be granted on a showing that service could not reasonably be achieved

within the time required with the exercise of due diligence consistent with the amount in controversy.

CALIFORNIA RULES OF COURT

Rule 3.811. Cases Subject to and Exempt From Arbitration (a) Cases subject to arbitration Except as provided in (b), the following cases must be arbitrated: (1) In each superior court with 18 or more authorized judges, all unlimited civil cases where the amount in controversy does not exceed $50,000 as to any plaintiff; (2) In each superior court with fewer than 18 authorized judges that so provides by local rule, all unlimited civil cases where the amount in controversy does not exceed $50,000 as to any plaintiff; (3) All limited civil cases in courts that so provide by local rule; (4) Upon stipulation, any limited or unlimited civil case in any court, regardless of the amount in controversy.

Rule 3.1110. General format

(a) Notice of motion A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.

(b) Date of hearing and other information

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The first page of each paper must specify immediately below the number of the case:

(1) The date, time, and location, if ascertainable, of any scheduled hearing and the name of the hearing judge, if ascertainable;

(2) The nature or title of any attached document other than an exhibit;

(3) The date of filing of the action; and

(4) The trial date, if set.

(c) Pagination of documents

Documents bound together must be consecutively paginated.

(d) Reference to previously filed papers

Any paper previously filed must be referred to by date of execution and title.

(e) Binding

All pages of each document and exhibit must be attached together at the top by a method that permits pages to be easily turned and the entire content of each page to be read.

(f) Format of exhibits

Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.

(g) Translation of exhibits

Exhibits written in a foreign language must be accompanied by an English translation, certified under oath by a qualified interpreter.

Rule 3.1110 amended and renumbered effective January 1, 2007; adopted as rule 311 effective January 1, 1984; previously amended effective July 1, 1997.

Rule 3.1112. Motions—and other pleadings

(a) Motions required papers

Unless otherwise provided by the rules in this division, the papers filed in support of a motion must consist of at least the following:

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(1) A notice of hearing on the motion;

(2) The motion itself; and

(3) A memorandum in support of the motion or demurrer.

(b) Other papers

Other papers may be filed in support of a motion, including declarations, exhibits, appendices, and other documents or pleadings.

(c) Form of motion papers

The papers filed under (a) and (b) may either be filed as separate documents or combined in one or more documents if the party filing a combined pleading specifies these items separately in the caption of the combined pleading.

(d) Motion-required elements

A motion must:

(1) Identify the party or parties bringing the motion;

(2) Name the parties to whom it is addressed;

(3) Briefly state the basis for the motion and the relief sought; and

(4) If a pleading is challenged, state the specific portion challenged.

(e) Additional requirements for motions

In addition to the requirements of this rule, a motion relating to the subjects specified in chapter 6 of this division must comply with any additional requirements in that chapter.

(f) Motion in limine

Notwithstanding (a), a motion in limine filed before or during trial need not be accompanied by a notice of hearing. The timing and place of the filing and service of the motion are at the discretion of the trial judge.

Rule 3.1112 amended effective July 1, 2008; adopted as rule 312 effective July 1, 1997; previously amended and renumbered effective January 1, 2007.

Rule 3.1350. Motion for summary judgment or summary adjudication

(a) Motion

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As used in this rule, “motion” refers to either a motion for summary judgment or a motion for summary adjudication.

(b) Motion for summary adjudication

If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.

(c) Documents in support of motion

Except as provided in Code of Civil Procedure section 437c(r) and rule 3.1351, the motion must contain and be supported by the following documents:

(1) Notice of motion by [moving party] for summary judgment or summary adjudication or both;

(2) Separate statement of undisputed material facts in support of [moving party's] motion for summary judgment or summary adjudication or both;

(3) Memorandum in support of [moving party's] motion for summary judgment or summary adjudication or both;

(4) Evidence in support of [moving party's] motion for summary judgment or summary adjudication or both; and

(5) Request for judicial notice in support of [moving party's] motion for summary judgment or summary adjudication or both (if appropriate).

(d) Separate statement in support of motion

The Separate Statement of Undisputed Material Facts in support of a motion must separately identify each cause of action, claim, issue of duty, or affirmative defense, and each supporting material fact claimed to be without dispute with respect to the cause of action, claim, issue of duty, or affirmative defense. In a two-column format, the statement must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.

(e) Documents in opposition to motion

Except as provided in Code of Civil Procedure section 437c(r) and rule 3.1351, the opposition to a motion must consist of the following documents, separately stapled and titled as shown:

(1) [Opposing party's] memorandum in opposition to [moving party's] motion for summary judgment or summary adjudication or both;

(2) [Opposing party's] separate statement of undisputed material facts in opposition to [moving party's] motion for summary judgment or summary adjudication or both;

(3) [Opposing party's] evidence in opposition to [moving party's] motion for summary judgment or summary adjudication or both (if appropriate); and

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(4) [Opposing party's] request for judicial notice in opposition to [moving party's] motion for summary judgment or summary adjudication or both (if appropriate).

(f) Opposition to motion; content of separate statement

Each material fact claimed by the moving party to be undisputed must be set out verbatim on the left side of the page, below which must be set out the evidence said by the moving party to establish that fact, complete with the moving party's references to exhibits. On the right side of the page, directly opposite the recitation of the moving party's statement of material facts and supporting evidence, the response must unequivocally state whether that fact is “disputed” or “undisputed.” An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. That evidence must be supported by citation to exhibit, title, page, and line numbers in the evidence submitted.

(g) Documentary evidence

If evidence in support of or in opposition to a motion exceeds 25 pages, the evidence must be separately bound and must include a table of contents.

(h) Format for separate statements

Supporting and opposing separate statements in a motion for summary judgment must follow this format:

Supporting Statement:

Moving Party's Undisputed Material Facts and Supporting Evidence:

Opposing Party's Response and Supporting Evidence: 

1. Plaintiff and defendant entered into a written contract for the sale of widgets. Jackson declaration, 2:17-21; contract, Ex. A to Jackson declaration.

  2. No widgets were ever received. Jackson declaration, 3:7-21.

Opposing statement:

Moving Party's Undisputed Material Facts and Alleged Supporting Evidence:

Opposing Party's Response and Evidence:

  1. Plaintiff and defendant entered into a written contract for the sale of widgets. Jackson declaration, 2:17-21; contract, Ex. A to Jackson declaration.

Undisputed.

  2. No widgets were ever received. Jackson declaration, 3:7-21.

Disputed. The widgets were received in New Zealand on August 31, 2001. Baygi declaration, 7:2-5.

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Supporting and opposing separate statements in a motion for summary adjudication must follow this format:

Supporting statement:

ISSUE 1--THE FIRST CAUSE OF ACTION FORNEGLIGENCE IS BARRED BECAUSE PLAINTIFFEXPRESSLY ASSUMED THE RISK OF INJURY

Moving Party's Undisputed Material Facts and Supporting Evidence:

Opposing Party's Response and Supporting Evidence: 

1. Plaintiff was injured while mountain climbing on a trip with Any Company USA. Plaintiff's deposition, 12:3-4.

  2. Before leaving on the mountain climbing trip, plaintiff signed a waiver of liability for acts of negligence. Smith declaration, 5:4-5; waiver of liability, Ex. A to Smith declaration.

Opposing statement:

ISSUE 1--THE FIRST CAUSE OF ACTION FOR NEGLIGENCE IS BARRED BECAUSE PLAINTIFF EXPRESSLY ASSUMED THE RISK OF INJURY

Moving Party's Undisputed Material Facts and Alleged Supporting Evidence:

Opposing Party's Response and Evidence:

  1. Plaintiff was injured while mountain climbing on a trip with Any Company USA. Plaintiff's deposition, 12:3-4.

Undisputed.

  2. Before leaving on the mountain climbing trip, plaintiff signed a waiver of liability for acts of negligence. Smith declaration, 5:4-5; waiver of liability, Ex. A to Smith declaration.

Disputed. Plaintiff did not sign the waiver of liability; the signature on the waiver is forged. Jones declaration, 3:6-7.

(i) Request for electronic version of separate statement

On request, a party must within three days provide to any other party or the court an electronic version of its separate statement. The electronic version may be provided in any form on which the parties agree. If the parties are unable to agree on the form, the responding party must provide to the requesting party the electronic version of the separate statement that it used to prepare the document filed with the court. Under this subdivision, a party is not required to create an electronic version or any new version of any document for the purpose of transmission to the requesting party.

Rule 3.1351. Motions for summary judgment in summary proceeding involving possession of real property

(a) Notice

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In an unlawful detainer action or other action brought under chapter 4 of title 3 of part 3 of the Code of Civil Procedure (commencing with section 1159), notice of a motion for summary judgment must be given in compliance with Code of Civil Procedure sections 1013 and 1170.7.

(b) Opposition and reply at hearing

Any opposition to the motion and any reply to an opposition may be made orally at the time of hearing or in writing as set forth in (c).

(c) Written opposition in advance of hearing

If a party seeks to have a written opposition considered in advance of the hearing, the written opposition must be filed and served on or before the court day before the hearing. Service must be by personal delivery, facsimile transmission, express mail, or other means consistent with Code of Civil Procedure sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties no later than the close of business on the court day before the hearing. The court, in its discretion, may consider written opposition filed later.

CALIFORNIA JURY INSTRUCTIONS Book of Approved Jury Instructions (BAJI):3.75 Proximate CauseA proximate cause of [injury] [damage] [loss] [or] [harm] is a cause which, in natural and continuous sequence, produces the [injury] [damage] [loss] [or] [harm] and without which the [injury] [damage] [loss] [or] [harm] would not have occurred. [Mitchell overruled 1991]

Judicial Council of California Civil Jury Instructions (CACI): 400. Essential Factual Elements[Name of plaintiff] claims that [he/she] was harmed by [name of defendant]’s negligence. To establish this claim, [name of plaintiff] must prove all of the following: 1. That [name of defendant] was negligent; 2. That [name of plaintiff] was harmed; and 3. That [name of defendant]’s negligence was a substantial factor in causing [name of plaintiff]’s harm.

430. Causation: Substantial Factor A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.

501. Standard of Care for Health Care Professionals

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A [insert type of medical practitioner] is negligent if [he/she] fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful [insert type of medical practitioners] would use in the same or similar circumstances. This level of skill, knowledge, and care is sometimes referred to as ``the standard of care.’’

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