Your Client Has Been Sued In California: Now What?

Brady Brammer

By Brady Brammer

When I think of California, three adjectives come to mind: large, beautiful and complicated. The state’s court system can be described using two of those adjectives. I’ll let you guess which two. Familiarity with California’s procedural peculiarities can help you assist your clients in recommending and retaining local counsel.

Calculating Motion Dates: In most states, a motion is briefed and then the court sets a hearing date upon request of counsel. In California, the hearing date is identified in the initial notice of motion (counsel calls the clerk or reserves the hearing date on the court’s website). The deadlines are then calculated by counting backward from the hearing date. For example, if I filed a motion with a hearing date of June 27, a reply brief is due five court days before the hearing date (June 20), the opposition is due nine court days before the hearing date (June 16) and the motion must have been filed and served 16 court days before the hearing date (June 5), assuming the motion is personally served. Watch out for California-specific court holidays like César Chavez day. Additionally, continuances of motions typically need stipulated orders adjusting the schedules.

Deadline for Filing Motion for Summary Judgment: This is the deadline that cannot be missed. The deadline for filing a motion for summary judgment is 105 days before trial and 75 days before the hearing on the motion. As soon as a trial date is set, this deadline should be calculated and a hearing date should be reserved, if not sooner. The latest a motion could be heard is 30 days before trial; coincidentally, that is the same day discovery closes. This means that the nonmoving party typically has enough time to conduct written discovery and depositions for roughly 60 days after receipt of a motion and before filing an opposition.

Motions for summary judgment are generally more difficult to obtain in California than in most other states. This is most likely true because it is much easier to create an issue of fact when the nonmoving party can conduct discovery to obtain the exact fact needed to defeat the summary judgment motion. Additionally, experts are typically disclosed 75 days before trial, meaning dispositive motions, fact discovery and expert discovery are all occurring simultaneously.

Discovery Process: California state proceedings typically have no initial disclosures. This can result in a discovery procedure where the parties may conceal facts and evidence they intend to use unless those facts and evidence are specifically requested in discovery. Well-crafted discovery requests are, therefore, even more critical in California than they may be in other jurisdictions. Additionally, California does not have a duty to supplement. Instead, California uses supplemental discovery requests that must be appropriately timed to coincide with deadlines such as the setting of a trial date or the close of discovery.

Anti-SLAPP: California permits parties in certain cases to file a unique motion called an Anti-SLAPP (Strategic Lawsuits Against Public Participation) that strikes a complaint when the complaint challenges the expression or exercise of rights guaranteed by the U.S. Constitution or California Constitution, such as free speech. If the moving party can demonstrate that the lawsuit is based on claims related to constitutionally protected activities, then the nonmoving party must demonstrate a reasonable probability of success in the case. Forcing a party to meet such a burden at such an early stage in the case is a powerful tool.

Appearances: Nearly every court in California is equipped with Court Call technology that allows counsel to appear by phone. This allows counsel to keep fees substantially lower.

When hiring local counsel, look for:

  • Procedural Experience in California State Courts: The attorney you hire as local counsel must have a strong working knowledge of the procedures that are unique to the California state courts. Understanding the procedure in busy, overpopulated courts (like L.A.) can give your client a huge advantage before a judge who is looking to lighten her docket.
  • Collegial but Strong: Because the California bar is so large, collegiality may be strained or disregarded more than in other jurisdictions. However, that does not diminish the value of collegiality. Good counsel understands the need to work with opposing counsel while not conceding important issues.
  • Filing and Service Contacts: Like any litigation, there will likely be a time when a document needs to be filed close to or at the deadline. The difference between a late-filed document and a timely-filed document often depends on an aggressive filing service and a strong working relationship with that service.
  • Clearly Defined Roles: Whoever your client retains must understand the role they play. Whether it is the lead role or the secondary role (local advisers and those who assist in filing and service of documents), clarity in this relationship is essential.

 

Even though your client has been sued in California, you can still help your client. Your ability to assist someone in a legal matter by identifying and recommending effective local counsel will be essential to the success of your client’s case.


 

Brady Brammer is an attorney at Van Cott Bagley Cornwall & McCarthy. He spent the first four years of practice in southern California and has handled California litigation and arbitration for Van Cott and other firms since joining the firm in February 2012. In October and November 2013, he successfully first-chaired a five-week bench trial in California, obtaining a complete victory for his clients. For more information, visit www.vancott.com.