THE STATE BAR OF CALIFORNIA

84th Annual Meeting

Program 152 Preparing and Opposing Pre-Trial Motions

Sunday, September 18, 2011 8:30 a.m.-12:00 noon

Lawyering Skills and Continuing Education of the Bar Program

The State Bar of California and the Office of Section Education and Meeting Services are approved State Bar of California MCLE providers.
Points of view or opinions expressed in these pages are those of the speaker(s) and/or author(s). They have not been adopted or endorsed by the State Bar of Californias Board of Governors and do not constitute the official position or policy of the State Bar of California. Nothing contained herein is intended to address any specific legal inquiry, nor is it a substitute for independent legal research to original sources or obtaining separate legal advice regarding specific legal situations. 2011 State Bar of California All Rights Reserved

State Bar Annual Convention Program:

Preparing and Opposing Pre-Trial Motions

Reference Materials September 2011

CONTINUING EDUCATION OF THE BAR

OAKLAND, CALIFORNIA

For program information call 1-800-232-3444 Website: ceb.com

CONTINUING EDUCATION OF THE BAR

CALIFORNIA

CEB Is Self-Supporting CEB is a nonprofit organization established by the State Bar of California. It receives no subsidy from State Bar dues or from any other source. CEBs only financial support comes from the fees that lawyers pay for CEB publications and programs. CEB Programs and Accompanying Materials Continuing Education of the Bar California publications and oral programs are intended to provide current and accurate information about the subject matter covered and are designed to help attorneys maintain their professional competence. Publications are distributed and oral programs presented with the understanding that CEB does not render any legal, accounting, or other professional service. Attorneys using CEB publications or orally conveyed information in dealing with a specific clients or their own legal matters should also research original sources of authority. Users Should Supplement Materials With Their Own Research Oral programs and materials are presented with the understanding that CEB renders no legal, accounting, nor other professional service. Attorneys using information from CEB publications or programs in dealing with specific legal matters should also research original sources of authority.

2011 by The Regents of the University of California CP-46473 (Program CP-07356)

PREFACE

These materials have been selected to provide background information relating to the September 2011 seminar, State Bar Annual Convention Program: Preparing and Opposing Pre-Trial Motions, and are designed to serve as a reference tool for the seminar topics. CEB wishes to thank the authors and speakers for their valuable time and contributions to this seminar. Connie Madera Voos, CEB attorney, served as the seminar project manager. Darma DeMarco provided production editing of the materials.

Pamela J. Jester Executive Director

iii

SCHEDULE

84th Annual State Bar Convention: Preparing and Opposing Pre-Trial Motions
LONG BEACH - September 18, 2011 - Long Beach Convention & Entertainment Center
James E. Hart, Littler Mendelson, P.C., Irvine Peter S. Selvin (Moderator), Raines Feldman LLP, Los Angeles Surjit Paul Singh Soni, The Soni Law Firm, Pasadena

Product Number: CP07356

State Bar Annual Convention Program: Preparing and Opposing Pre-Trial Motions

CONTENTS
Demurrers ...................................................................................................................1 Motions to Strike.......................................................................................................15 Ex Parte Motions and Orders to Show Cause...........................................................23 Trial Preference and Continuance Motions ..............................................................29 About the Panelists ...................................................................................................39

23
Demurrers
I. INTRODUCTION A. Scope of Chapter 23.1 B. Governing Law 23.2 II. DESCRIPTION AND USE A. Function 23.3 B. General and Special Demurrers Distinguished 23.4 C. Availability 23.5 D. Tactical Considerations 23.6 E. Alternative Procedures 23.7 1. Answer 23.8 2. Motion to Strike 23.9 3. Motion for Judgment on Pleadings 23.10 4. Motion Under CCP 437c for Summary Judgment or Summary Adjudication 23.11 5. Motion to Dismiss 23.12 6. Discovery 23.13 7. Objection to Evidence 23.14 III. DEMURRER TO COMPLAINT A. Preparing Demurrer; Examples 1. Multiple Party Variations 23.15 2. Stating Grounds Separately 23.16 3. Demurring to All or Part of Complaint 23.17 4. Invoking Judicial Notice 23.18 B. Timing 1. When to File 23.19 2. Avoiding Default 23.20 3. Consider Filing Answer Simultaneously 23.21 C. Grounds 23.22 1. Matters on Which Grounds Based 23.23 2. Grounds That Are Not Waived 23.24 D. Stating Specific Grounds; Examples 23.25 1. Failure to State Facts Sufficient to Constitute Cause of Action 23.26 a. Barred by Statute of Limitations 23.27 b. Defenses Appearing on Face of Complaint 23.28 2. No Jurisdiction of Subject Matter 23.29 3. Lack of Legal Capacity to Sue 23.30 4. Another Action Pending 23.31

[Note: Some sections of this chapter have been intentionally omitted from this reprint.]

Reprinted from California Civil Procedure Before Trial (4th ed Cal CEB 2004), with June 2011 update. To order this book, call 1-800-232-3444, or visit CEBs website at ceb.com.

I. INTRODUCTION 23.1 A. Scope of Chapter Like a motion to strike or a motion for judgment on the pleadings, a demurrer attacks matters appearing on the face of pleadings filed by another party. This chapter covers the procedures for preparing and opposing demurrers filed in civil actions in California state courts. It discusses description and use (see 23.323.14), and demurrers to complaint (see 23.1523.38), to crosscomplaints (see 23.3923.41), and to answers (see 23.4223.47). It also discusses responsive procedures (see 23.4823.49), reply papers (see 23.50), hearing and court ruling (see 23.5123.57), and posthearing procedures (see 23.5823.67). For a diagnostic checklist and forms, see (23.6823.75). For information on other responsive procedures, such as motions to strike and answerseither of which may be filed with a demurrersee chaps 24 (motions to strike) and 25 (answers).
NOTE As used in this chapter, the words plaintiff, defendant, and complaint include

cross-complainant, cross-defendant, and cross-complaint. 23.2 B. Governing Law

The controlling statutory authority is found in CCP 430.10430.80. A demurrer is generally treated like a motion. California Rules of Court 3.1103(c) provides that all law and motion rules (Cal Rules of Ct 3.11003.1302) apply to demurrers unless the context or subject matter requires otherwise. In addition, Cal Rules of Ct 3.1320 provides several special requirements that apply only to demurrers. The Judicial Council has preempted local rules on demurrers, unless such rules are required or permitted by statute or rule. Cal Rules of Ct 3.20(a). See 11.2.
NOTE Local rules implementing the Trial Court Delay Reduction Act (Govt C 6860068620)

are among the rules otherwise permitted by rule and statute. Cal Rules of Ct 3.20(b). II. DESCRIPTION AND USE 23.3 A. Function A demurrer can be used at the pleading stage of litigation to challenge the legal sufficiency of allegations in an opponents pleadings. See CCP 430.10430.80, 589, 591. Smeltzley v Nicholson Mfg. Co. (1977) 18 C3d 932, 136 CR 269. Pleadings include complaints, crosscomplaints, and answers. CCP 422.10 (demurrers themselves are also pleadings). The majority of demurrers are filed against complaints (or cross-complaints), but demurrers may also be used to attack answers. See 23.4223.47. A demurrer tests issues of law, not fact; thus, a ground for objecting to an opponents pleading can be raised by demurrer only if it (CCP 430.30): x x Appears on the face of the pleading; or Is based on a matter from which the court is required to or may take judicial notice.

See Banerian v OMalley (1974) 42 CA3d 604, 610, 116 CR 919; James v Superior Court (1968) 261 CA2d 415, 67 CR 783. The grounds for demurring to a complaint or cross-complaint are the same as the grounds for objecting in an answer. See CCP 430.10430.20. A demurrer is appropriate when the ground for objecting appears on the face of the pleading; an answer is proper when the ground does not appear on the face of the pleading. CCP 430.30(a)(b). A party may demur and answer at the same time (CCP 430.30(c)), or demur and move to strike at the same time (see CCP 435(c)).

On demurrer, it is not the courts role to decide that the complaint is false in whole or in part; rather, a demurrer admits the truth of all material facts properly pleaded. William v Southern Cal. Gas Co. (2009) 176 CA4th 591, 600, 98 CR3d 258.
PRACTICE TIP Theoretically, a demurrer can resolve a meritless action, but this is rare. If the

demurrer is granted, the courts generally permit the opposing party to amend the defective cause of action or defense. Although a demurrer helps to clarify the causes of action or defenses and to narrow the theories that the opposing party will rely on at trial, it has the disadvantage of alerting the opposing party at an early stage in the case to the weaknesses of the pleadings. For further discussion of tactics to consider before filing a demurrer, see 23.6. If a defendant has not previously made an appearance, filing a demurrer is a general appearance in an action. CCP 1014. 23.4 B. General and Special Demurrers Distinguished

In general, the Code of Civil Procedure makes no distinction between general and special demurrers. See CCP 430.10430.90. However, the California Rules of Court distinguish the two (see Cal Rules of Ct 3.1320(f)); special demurrers are not allowed in limited civil cases (CCP 92(c)), and case law is replete with references to general and special demurrers. See 5 Witkin, California Procedure, Pleading 951953 (5th ed 2008). The distinction rests on the particular ground for the demurrer. A general demurrer refers to: x x A complaint or cross-complaint on the ground that the pleading fails to state facts sufficient to constitute a cause of action (CCP 430.10(e)); or An answer on the ground that the pleading fails to state facts sufficient to constitute a defense (CCP 430.20(a)).

A demurrer on any of the remaining grounds in CCP 430.20 or 430.10 (e.g., uncertainty, lack of legal capacity to sue) is considered a special demurrer. For discussion of the specific grounds for demurrer, see 23.2223.36. Failure to demur or answer constitutes a waiver of the grounds for a special demurrer, but the grounds for a general demurrer may be raised at any time during litigation, even though the time to demur or answer has passed. On alternative procedures, see 23.723.14 (motion for judgment on the pleadings or objection to evidence at trial based on same grounds as general demurrer). 23.5 C. Availability

Demurrers can be used in both limited and unlimited civil actions in California trial courts. See CCP 421422.20. However, a special demurrer is not allowed in a limited civil case. CCP 92(c). A demurrer can state objections to: x x x x A complaint or cross-complaint (CCP 430.10), including a complaint in intervention (CCP 387) and a complaint for unlawful detainer (CCP 1170). An amended complaint or a cross-complaint. See CCP 586. An answer (CCP 430.20) or an amended answer (CCP 471.5). A peremptory writ or an application for a writ of review (CCP 1069.1, 1089, 1105, 1109; Cal Rules of Ct 8.487(b)(1)). See California Civil Writ Practice 8.408.44 (4th ed Cal CEB 2008).

Demurrers are not used in: x x x Small claims proceedings; Federal court civil actions; or Proceedings under the Family Code (see Cal Rules of Ct 5.108). tion to dismiss for failure to state a claim on which relief can be granted under Fed R Civ P 12(b)(6) (sometimes called the federal demurrer). In family law cases, some of the objections raised in other civil actions by demurrer can be raised by a motion to quash under family law rules. See Cal Rules of Ct 5.121, 5.122(a)(2). A defendant corporation in a shareholder derivative suit may only demur to the standing of a plaintiff. Patrick v Alacer Corp. (2008) 167 CA4th 995, 1008, 84 CR3d 642. 23.6 D. Tactical Considerations

NOTE In federal court, a defendant may challenge the legal sufficiency of pleadings by a mo-

In deciding whether to demur to a complaint, defense counsel should consider not only whether a demurrable defect appears on the face of the complaint, but also whether demurring is likely to produce a practical benefit for the defendant more effectively than will alternative procedures. See 23.723.14.
JUDICIAL PERSPECTIVE It is not good practice to file a demurrer solely to delay progress of

the action, to inconvenience the plaintiffs counsel, or to build a fee. Judges lose patience with attorneys whose demurrers do not seem reasonably calculated to narrow issues or produce useful clarification of the pleadings, and it wastes time to file a demurrer for an amendment that the plaintiff would have made if asked. A demurrer is a valuable procedure for obtaining an early hearing on legal issues such as the plaintiffs right to proceed with the action and the validity or sufficiency of the stated causes of action, theories, and allegations. A successful demurrer can narrow the bases on which the plaintiff may proceed and have a salutary effect on settlement negotiations. It can also resolve the entire action before the defense needs to frame an answer and incur further expense. After a demurrer is sustained, the plaintiff may be forced to restate and add allegations that may make the amended complaint easier to answer or suggest additional affirmative defenses to the defendant. Even when a complaint is technically demurrable, however, there are reasons to refrain from demurring. The plaintiff will usually be given an opportunity to amend a defective complaint. See 23.53. The effort and expense of preparing the moving papers and attending the hearing may thus outweigh the benefits gained even if the demurrer is sustained. Often, defense counsel can state objections to the complaint and challenge the validity of the action more expeditiously by an answer or another procedure. See 23.8. Finally, filing a demurrer may compel the plaintiffs attorney, perhaps for the first time, to research and thoroughly analyze the bases of the action, permitting the plaintiff to cure defects early and focus attention and energy on the tenable aspects of the action. 23.7 E. Alternative Procedures

There are several procedures that will achieve the same objectives as demurrers. See 23.8 23.14.

23.8

1. Answer

An answer, in addition to denials and affirmative defenses, can state grounds for objections to the complaint and can state them whether or not they appear on the face of the complaint, although filing an answer does not itself obtain a ruling on the objections. See chap 25. 23.9 2 Motion to Strike

A motion to strike (CCP 436), whether or not filed with a demurrer, addresses defects not reachable by demurrer. This motion, made within the time to answer, can (1) eliminate sham, irrelevant, or redundant matters from a pleading; (2) raise objections that do not appear on the face of the pleading if the motion attacks matters not filed in conformity with law, rule, or court order; and (3) attack parts of a cause of action, count, or defense. See chap 24. 23.10 3. Motion for Judgment on Pleadings

The grounds for a motion for judgment on the pleadings are the same as for a general demurrer. Unlike a demurrer, this motion can be made at any time on the ground that all or part of the pleading fails to state facts sufficient to constitute a cause of action or defense. Because there is no time requirement, the motion is often made after an answer has been filed. On motions for judgment on the pleadings, see chap 27. 23.11 4. Motion Under CCP 437c for Summary Judgment or Summary Adjudication

A summary judgment can terminate a lawsuit, and a summary adjudication can eliminate causes of action or claims. Affidavits and declarations are filed in support of a motion for summary judgment or summary adjudication; thus, the motions test evidentiary defects in the plaintiffs case that do not appear on the face of the pleadings and cannot be raised by demurrer. A motion under CCP 437c may not be made until 60 days after the general appearance in the action of the party against whom the motion is directed. CCP 437c(a). These motions are usually not made until after some discovery has been completed. See chap 36. 23.12 5. Motion to Dismiss

Although no statutory authority exists for a motion to dismiss in state courts, defendants have sometimes been permitted to use a paper called a motion to dismiss after the time has passed to demur and to state the objection that the complaint fails to state facts sufficient to constitute a cause of action. See Timberlake v Schwank (1967) 248 CA2d 708, 56 CR 799. In these instances, the motion to dismiss operates as a motion for judgment on the pleadings or as a motion for summary judgment. See generally 5 Witkin, California Procedure, Pleading 10041006 (5th ed 2008). 23.13 6. Discovery

Uncertainty about the factual bases of a partys claims or defenses should be dispelled by interrogatories, depositions, and other discovery methods. See Dahlquist v State (1966) 243 CA2d 208, 212, 52 CR 324. See generally California Civil Discovery Practice (4th ed Cal CEB 2006).

23.14

7. Objection to Evidence

At trial, a party can object to evidence offered by the opponent on the ground that the evidence is irrelevant because the facts stated in the pleadings are not sufficient to constitute a cause of action or defense, and thus there is no issue on which to receive the evidence. The objection to evidence may then be treated as a general demurrer or as a motion for judgment on the pleadings. Trial judges faced with an objection that could have been raised by demurrer or motion for judgment on the pleadings at an early stage of the litigation, however, are liberal in permitting the parties to amend the pleadings to permit the proof. See 5 Witkin, California Procedure, Pleading 1002 (5th ed 2008). III. DEMURRER TO COMPLAINT A. Preparing Demurrer; Examples 23.15 1. Multiple Party Variations A joint demurrer filed by two or more defendants may be overruled if the complaint is good as to any one defendant. Myers v County of Orange (1970) 6 CA3d 626, 630, 86 CR 198. But see Majestic Realty Co. v Pacific Lighting Corp. (1974) 37 CA3d 641, 112 CR 423 (rule limited to special demurrers). See generally 5 Witkin, California Procedure, Pleading 961 (5th ed 2008). A demurrer filed on behalf of fewer than all defendants, even if some of them were sued by fictitious names, should clearly indicate the names of the demurring defendant or defendants. The caption of the demurrer must state immediately below the case number the name of the demurring party and the name of the party whose pleading is the subject of the demurrer. Cal Rules of Ct 3.1320(e). Counsel who represents more than one defendant should consider whether all should join in a single demurrer or to file a separate demurrer for each. Even counsel who believes that the grounds for demurring are equally valid for all defendants may wish to use an introductory line indicating that the grounds are asserted separately for each. For example:
Defendants _ _[name]_ _, _ _[name]_ _, and _ _[name]_ _ each demur individually, and not jointly with any other party, to each cause of action on the following grounds: _ _[State each ground in separate, numbered paragraphs]_ _.

Alternatively, the effect of separate demurrers can also be achieved by dividing a single paper into parts, using a separate introductory line to introduce the grounds stated for each demurring defendant. Care should be used when demurring to a complaint filed by two or more plaintiffs, particularly if a ground for demurring may be good against only one plaintiff. Separate introductory lines may be used to distinguish grounds asserted against one plaintiff from grounds asserted against another. For example:
Defendant, _ _[name]_ _, demurs to each cause of action alleged by _ _[name]_ _ in the complaint on the following grounds: _ _[State each ground in separate, numbered paragraphs]_ _.

23.16

2. Stating Grounds Separately

Each ground for objecting to a complaint that is to be raised by a demurrer must be specified distinctly; otherwise, the demurrer may be disregarded. CCP 430.60. Each ground must be in a separate paragraph and state whether it applies to the entire complaint, cross-complaint, or answer, or only to specified causes of action or defenses. Cal Rules of Ct 3.1320.

If two or more grounds for an objection are stated conjunctively in a demurrer, the demurrer may be overruled unless all the grounds exist. Kraner v Halsey (1889) 82 C 209, 212, 22 P 1137; Butler v Wyman (1933) 128 CA 736, 740, 18 P2d 354. Thus, using the introductory line, Defendant demurs on each of the following grounds, is preferable to Defendant demurs on all the following grounds or Defendant demurs on the grounds of X and Y. 23.17 3. Demurring to All or Part of Complaint

A demurrer may be taken to the whole complaint or to any of its causes of action. CCP 430.50. However, it is risky to assert a ground for demurrer against the whole complaint if the complaint contains several causes of action because a demurrer that attacks an entire pleading may be overruled if one of the causes of action is not vulnerable to the objection. Lord v Garland (1946) 27 C2d 840, 850, 168 P2d 5; Skipper v Gilbert J. Martin Constr. Co. (1957) 156 CA2d 82, 86, 318 P2d 732. See Warren v Atchison, Topeka & Santa Fe Ry. (1971) 19 CA3d 24, 29, 96 CR 317. If the plaintiff has stated each cause of action separately in the complaint, the defendant may use headings in the demurrer to show which objections apply to each cause of action. For example:
Defendant, _ _[name]_ _, demurs to each cause of action in the complaint as follows: OBJECTIONS TO FIRST CAUSE OF ACTION: _ _[State each objection in separate, numbered paragraphs]_ _. OBJECTIONS TO SECOND CAUSE OF ACTION: _ _[State each objection in separate, numbered paragraphs]_ _.

Alternatively, the form of demurrer may be as follows:

1. The First Cause of Action does not state facts sufficient to state a cause of action. CCP 430.10(e). 2. The First Cause of Action is uncertain in that in Paragraph 1 plaintiff is identified as a corporation and in Paragraph 2 as a partnership. CCP 430.10(f). 3. The Second Cause of Action does not state facts sufficient to state a cause of action. CCP 430.10(e).

For sample form of demurrer to complaint, see 23.72. 23.18 4. Invoking Judicial Notice

If any ground of objection stated in the demurrer is based on a matter of which the court may take judicial notice under Evid C 452453, counsel should identify the matter in the demurrer or in the accompanying memorandum, request judicial notice, and provide the court and each party with a copy of the material. If the material to be judicially noticed is part of a file in the court in which the action is being heard, the party must specify in writing the part of the file to be judicially noticed and arrange with the court clerk to have the file in the courtroom at the hearing. Cal Rules of Ct 3.1306(c). A request for judicial notice must be made in a separate document listing the specific items the party wishes to have judicially noticed and must comply with Cal Rules of Ct 3.1306(c). Cal

Rules of Ct 3.1113(l). For further discussion and form, see 12.59, 12.143. Local rules should be consulted for special requirements for requesting judicial notice.
NOTE Although a court may take judicial notice of documents pertinent to issues raised by a

demurrer, whether, on demurrer, the court accepts the accuracy of the contents of the judicially noticed documents depends on the circumstances. C.R. v Tenet Healthcare Corp. (2009) 169 CA4th 1094, 1103, 87 CR3d 424. There are basically three approaches: (1) the court will not consider the truth of a documents contents unless it is a judgment, statement of decision, or order; (2) the court may accept the truth of statements made by a party, but not by third parties or an opponent; and (3) the court will accept the contents of the document only when there is not and cannot be a factual dispute about that which is sought to be judicially noticed, and, as a general rule, the truthfulness and interpretation of a documents contents are disputable. C.R. v Tenet Healthcare Corp., supra. See also William v Southern Cal. Gas Co. (2009) 176 CA4th 591, 98 CR3d 258 (although on demurrer court could take judicial notice of discovery responses, it erred in concluding from responses that complaint allegations were false). B. Timing 23.19 1. When to File A demurrer to a complaint must be filed within 30 days after service of the complaint. CCP 430.40(a). It may be possible to obtain an extension of time either by stipulation or by means of an ex parte application to a judge of the court in which the action is pending. CCP 1054; Cal Rules of Ct 2.20.
WARNING Counsels ability to stipulate with other counsel to an extension of time to demur or

answer may be significantly curtailed by local rules implementing the Trial Court Delay Reduction Act (Govt C 6860068620). See chap 40. See 22.96 for discussion of the time to respond after remand from federal court. 23.20 2. Avoiding Default

Filing a timely demurrer (i.e., within the time specified in a summons or such further time as allowed) prevents the plaintiff from taking judgment by default. CCP 585. The court can grant a plaintiffs motion to strike a late-filed demurrer (see chap 24) and, if no answer is then on file, grant plaintiff judgment by default. Buck v Morrossis (1952) 114 CA2d 461, 250 P2d 270. Filing a demurrer may not be sufficient to avoid entry of default if the demurrer is not eventually calendared for hearing. In Barragan v Banco BCH (1986) 188 CA3d 283, 232 CR 758, the defendant demurred on the ground of a pending action involving substantially the same causes of action and issues. Before the court ruled on the demurrer, the parties removed it from the calendar, and the plaintiff agreed to forgo the second lawsuit until completion of the first. More than a year after entry of judgment in the first action, plaintiffs repeatedly requested the defendant to recalendar its demurrer; the defendant refused to do so, and plaintiffs obtained an entry of default. The court of appeal found that the trial court had properly refused to set aside the default, that the defendant had abandoned its demurrer by not recalendaring it, and that the demurrer was moot because there was no longer another action pending.

23.21

3. Consider Filing Answer Simultaneously

A demurrer is usually filed and ruled on before the answer is filed. Then, if the demurrer is sustained and the complaint amended, the answer need respond only to the allegations in the amended complaint. A demurrer to a cause of action may be filed without answering other causes of action. Cal Rules of Ct 3.1320(b). If the demurrer is overruled, the defendant has 10 days after service of notice of the decision in which to file an answer, unless the judge specifies more or less time or the parties waive notice (CCP 472a472b; Cal Rules of Ct 3.1320(g)). Defendants may ask for, and sometimes are granted, additional time to file an amended pleading. Alternatively, a defendant can file a demurrer and an answer at the same time. CCP 430.30(c), 472a. Thus, a defendant can demur to one or more causes of action and simultaneously answer others. See 5 Witkin, California Procedure, Pleading 949 (5th ed 2008). 23.22 x x x x x x x x C. Grounds

Under CCP 430.10, the grounds for demurrer to a complaint or cross-complaint are: The court has no jurisdiction of the subject matter of the cause of action alleged in the pleading. The pleading does not state facts sufficient to constitute a cause of action. The person who filed the pleading has no legal capacity to sue. Another action is pending between the same parties on the same cause of action. There is a defect or misjoinder of parties. The pleading is uncertain (uncertain includes ambiguous and unintelligible). In an action arising from a contract, it cannot be ascertained from the pleading whether the contract is written, oral, or implied by conduct. No certificate of merit was filed as required by CCP 411.35 (actions for damages arising from professional negligence of an architect, a professional engineer, or a land surveyor) (see 23.36). 1. Matters on Which Grounds Based

23.23

A demurrer searches for defects in the allegations of the pleading. The prayer for relief is not subject to demurrer. Ramsden v Western Union (1977) 71 CA3d 873, 138 CR 426. Generally, facts and evidentiary matters extrinsic to the pleading may not be considered by the court. In rare situations, however, the demurring party has been permitted to allege facts in a demurrer or introduce evidence to support the demurrer in order to show that grounds for a demurrer exist. See, e.g., Middlebrook-Anderson Co. v Southwest Sav. & Loan Assn (1971) 18 CA3d 1023, 1038, 96 CR 338. For further discussion, see 5 Witkin, California Procedure, Pleading 948 (5th ed 2008). The face of the defective pleading may be read as if it included matters of which the court may take judicial notice. Bohrer v County of San Diego (1980) 104 CA3d 155, 163 CR 419. Thus, whether or not a party formally requests a matter to be judicially noticed, recitals in exhibits and admissions in previous pleadings in the same case can be examined by the court in ruling on a demurrer. See also Able v Van Der Zee (1967) 256 CA2d 728, 734, 64 CR 481 (court properly considered requests for admissions in sustaining demurrer).

23.24

2. Grounds That Are Not Waived

Each ground for objection to a complaint listed in CCP 430.10, except no jurisdiction (CCP 430.10(a)), and the ground in CCP 430.10(e) (pleading does not state facts sufficient to constitute a cause of action), is waived unless raised by a timely demurrer or answer. CCP 430.80; Collins v Rocha (1972) 7 C3d 232, 239, 102 CR 1. These two grounds may be raised at any time during litigation, even when the time to demur or answer has expired. Similarly, a failure to demur to an answer constitutes a waiver of the grounds for objection in CCP 430.20(b) (answer is uncertain) and 430.20(c) (whether the contract is written or oral) but not the ground in CCP 430.20(a) (answer does not state facts sufficient to constitute a defense). (CCP 430.80(b)). On demurrers to answers, see 23.4223.47.
PRACTICE TIP If the time to demur has passed, counsel should consider moving for judgment

on the pleadings. See discussion of alternative procedures in 23.723.14. 23.25 D. Stating Specific Grounds; Examples

If each ground for an objection to a complaint that is to be raised by a demurrer is not specified distinctly, the demurrer may be disregarded. CCP 430.60. See 23.16. The grounds should be stated in the demurrer with argument in support of each ground set out in the supporting memorandum. See Gardner v Samuels (1897) 116 C 84, 88, 47 P 935. The following sections, each beginning with an example, discuss the permissible grounds for demurring to a complaint. Grounds applicable to a particular complaint may be inserted as numbered paragraphs in the demurrer. See form of demurrer in 23.72. 23.26 1. Failure to State Facts Sufficient to Constitute Cause of Action

The _ _[e.g., complaint/first cause of action]_ _ does not state facts sufficient to constitute a cause of action against _ _[name of demurring defendant]_ _.

A general demurrer may be stated in the words of CCP 430.10(e): The pleading does not state facts sufficient to constitute a cause of action. See Burke v Maguire (1908) 154 C 456, 462, 98 P 21. This ground can be effective when: x x x The plaintiff has attempted to state a novel cause of action; The defendant knows that the plaintiff cannot truthfully allege an essential missing fact or defense; or The missing fact, if alleged, would itself provide a basis for objecting to the complaint or cause of action.

An additional clause should be added if the demurrer is made on the basis of a statute of limitations (see 23.27) or on some other specific basis (see 23.25). Otherwise, additional statements of the defects of the complaint should be reserved for the supporting memorandum. The objection that the complaint does not state facts sufficient to constitute a cause of action is not waived by failure to demur. See 23.24. If it later develops (e.g., during discovery) that essential elements are missing from the plaintiffs case, that objection can be raised at any time during the proceeding by other procedural means or on appeal. See Whelan v Wolford (1958) 164 CA2d 689, 693, 331 P2d 86. However, the danger in failing to raise the objection by demurrer is that, at later stages of the litigation, a judge may be more liberal in finding that the complaint was adequate or in permitting an amendment to conform to proof. Note that an appeal from a judgment for the plaintiff must be

10

based on failure to prove an essential fact and not on failure to plead it. See Ades v Brush (1944) 66 CA2d 436, 444, 152 P2d 519.
PRACTICE TIP Although a general demurrer can be taken to a complaint that states conclusions

of law or evidentiary facts (rather than ultimate facts as required), a defendant who believes that the plaintiff will be able to recast allegations properly may decide not to demur. A general demurrer is rarely granted without leave to amend, and a demurrer to defects that the plaintiff can cure may only alert the plaintiff to those defects early in the case. 23.27 a. Barred by Statute of Limitations

The _ _[e.g., complaint/first cause of action]_ _ does not state facts sufficient to constitute a cause of action against _ _[name of demurring defendant]_ _ in that the action is barred by _ _[e.g., Code of Civil Procedure 335.1]_ _.

Although any indication in the demurrer that a statute of limitations is being invoked raises the issue, it is the better practice to cite the code section that bars the action. See Williams v ILWU (1959) 172 CA2d 84, 87, 341 P2d 729. The parts of the complaint that show the action to be barred can be specified in the supporting memorandum. On Californias doctrine of equitable tolling doctrine, which may be applied to extend the statutory period, see Elkins v Derby (1974) 12 C3d 410, 115 CR 641; Aguilera v Heiman (2009) 174 CA4th 590, 95 CR3d 18; Tarkington v California Unemployment Ins. Appeals Bd. (2009) 172 CA4th 1494, 1503, 92 CR3d 131. For statutes of limitations for specific causes of action, see California Business Litigation (Cal CEB 2002); California Tort Damages (2d ed Cal CEB 2002); California Tort Guide (3d ed Cal CEB 1996). 23.28 b. Defenses Appearing on Face of Complaint

Occasionally, facts will be alleged in the complaint that create a defense to one or more of its causes of action. If the establishment of a defense does not require factual allegations by the defendant (which would have to be made in an answer), the defendant can obtain an early hearing on the validity of the defenses by a general demurrer. Halvorsen v Aramark Unif. Servs. (1998) 65 CA4th 1383, 77 CR2d 383. Defenses that have been raised by a general demurrer include: x x x x Statute of frauds (Harper v Goldschmidt (1909) 156 C 245, 252, 104 P 451); Laches (Neet v Holmes (1944) 25 C2d 447, 460, 154 P2d 854); Plaintiff not real party in interest (Klopstock v Superior Court (1941) 17 C2d 13, 18, 108 P2d 906; see McKinny v Board of Trustees (1982) 31 C3d 79, 181 CR 549); and Res judicata (Legg v United Benefit Life Ins. Co. (1960) 182 CA2d 573, 580, 6 CR 73; Kronkright v Gardner (1973) 31 CA3d 214, 107 CR 270).

For additional examples, see 5 Witkin, California Procedure, Pleading 963967 (5th ed 2008). 23.29 2. No Jurisdiction of Subject Matter

The Court has no jurisdiction of the subject of _ _[the/any]_ _ cause of action alleged in the _ _[complaint/first cause of action]_ _.

11

This objection is not waived by failure to raise it in a demurrer or answer (CCP 430.80), and it may be made at any time during the litigation, or by collateral attack. Raising the objection by demurrer is a way to test jurisdiction at the outset, possibly saving the defendant further effort and expense. Because the superior court is a court of general jurisdiction, a demurrer on the ground of no jurisdiction in that court cannot be based on the plaintiffs failure to allege facts that show jurisdiction; it must be based on allegations in the complaint showing that jurisdiction lies in a different court or in no court. See Cheney v Trauzettel (1937) 9 C2d 158, 69 P2d 832. Thus, a demurrer based on the courts lack of jurisdiction is proper if allegations of the complaint show that jurisdiction lies, e.g., in a federal court (see Olcovich v Grand Trunk Ry. (1912) 20 CA 349, 129 P 290), the court of another state (see Getty v Getty (1933) 130 CA 519, 20 P2d 82), or the Workers Compensation Appeals Board (see Buttner v American Bell Tel. Co. (1940) 41 CA2d 581, 107 P2d 439). A demurrer for lack of jurisdiction may be used to gain a hearing on questions such as: x x x x The constitutionality of the statute or ordinance under which the plaintiff proceeds (see Harden v Superior Court (1955) 44 C2d 630, 634, 284 P2d 9); The propriety of a cross-complaint (see Tide Water Assoc. Oil Co. v Superior Court (1955) 43 C2d 815, 820, 279 P2d 35); The statutory immunity of a public entity to the plaintiffs alleged cause of action (see County of Santa Barbara v Superior Court (1971) 15 CA3d 751, 754, 93 CR 406); or The validity of causes of action when plaintiff has not pled compliance with required administrative procedures prior to filing suit (see Caliber Bodyworks, Inc. v Superior Court (2005) 134 CA4th 365, 36 CR3d 31).

If a demurrer for lack of subject matter jurisdiction is sustained, and if there is another California court that has jurisdiction, the plaintiff or the defendant may move to transfer the action to the proper court. See CCP 396399. It is unclear whether the sustaining of the demurrer or the motion to transfer extends the time to answer the complaint as to parties who have appeared in the action by way of the demurrer or otherwise. A defendant in this situation may wish to file an answer with the demurrer or obtain an extension of time to respond to the complaint.
NOTE The objection that the court does not have jurisdiction of the person of the defendant is

raised by a motion to quash service of summons (see chap 19), not by demurrer. 23.30 3. Lack of Legal Capacity to Sue

Plaintiff, _ _[name]_ _, does not have the legal capacity to sue in that _ _[e.g., he is a minor and no guardian has been appointed to represent him]_ _.

This objection may be used when the plaintiff brings the action in some representative capacity, but the complaint fails to show that the plaintiff actually possesses that capacity to sue. See Klopstock v Superior Court (1941) 17 C2d 13, 17, 108 P2d 906; Kreling v Kreling (1897) 118 C 413, 50 P 546. Demurring on this ground is also proper against a complaint that shows on its face that the plaintiff is a nonentity such as an estate. See chap 9. Although a partnership or unincorporated association has the capacity to sue by the name it has assumed (CCP 369.5(a)), failure in the complaint to allege compliance with the filing requirement of Bus & P C 17918 can be raised by demurrer on this ground.

12

NOTE Lack of capacity to sue should not be confused with lack of standing to sue. See Center

for Self-Improvement & Community Dev. v Lennar Corp. (2009) 173 CA4th 1543, 1552, 94 CR3d 74 (corporate incapacity for failure to comply with Rev & Tax C 23305 is a legal disability, not a jurisdictional defect). Lack of capacity to sue is a ground for a special demurrer. Lack of standing to sue, which occurs if plaintiff is not the real party in interest or is not the person in whom the alleged cause of action lies, should be raised by a general demurrer for failure to state facts sufficient to constitute a cause of action. See Parker v Bowron (1953) 40 C2d 344, 351, 254 P2d 6; Friendly Village Community Assn v Silva & Hill Constr. Co. (1973) 31 CA3d 220, 224, 107 CR 123. On the effect on the litigation of the revival of corporate capacity to sue, see Center for SelfImprovement & Community Dev. v Lennar Corp. (2009) 173 CA4th 1543, 1554, 94 CR3d 74 (procedural steps taken on corporations behalf during incapacity for failure to comply with Rev & Tax C 23305 were revived when defect cured). 23.31 4. Another Action Pending

There is another action pending between the parties to this action on the same cause of action as alleged in the _ _[complaint/first cause of action]_ _. That action is No. _ _ _ _ in the _ _ _ _ _ _ Court of _ _ _ _ _ _ County, and defendant asks that the Court take judicial notice of that action under Evidence Code 452(d). A certified copy of the complaint and answer in that action is attached to this demurrer and marked as Exhibit A.

Demurrers on this ground are not favored, but they may be sustained when the parties in the two cases are identical and the causes of action and issues in the two actions are substantially the same. The parties in both actions must also stand in the same relative position as plaintiff and defendant. Lord v Garland (1946) 27 C2d 840, 848, 168 P2d 5; Childs v Eltinge (1973) 29 CA3d 843, 848, 105 CR 864. The test for sustaining a demurrer on the ground that another action is pending is whether the cases are sufficiently similar that a final judgment in the first action could be pleaded as a bar to the second. Colvig v RKO Gen., Inc. (1965) 232 CA2d 56, 73, 42 CR 473.
EXAMPLE A pending dissolution action did not preclude a wife from bringing a second, sepa-

rate action against her husband and his business partners in Beehler v Beehler (1979) 100 CA3d 376, 161 CR 30. The wife claimed that her interest in certain real property had not been declared, that she had been deprived of funds lawfully due her, and that gifts had been made of community property without her consent. Her husband and his partners as defendants successfully demurred, and a judgment of dismissal was entered. The appellate court reversed the judgment on the ground that the parties and issues in the civil suit were not the same as those in the dissolution. Although the wife could have joined the business associates in the dissolution, she was not required to do so. A demurrer on the ground that another action is pending is appropriate only if the other action is pending in California; if the action is pending in another state, a stay should be sought by a motion under CCP 430.10 (for inconvenient forum; see chap 21) so that factual matter outside the pleadings can be submitted. Lord v Garland, supra; Leadford v Leadford (1992) 6 CA4th 571, 8 CR2d 9. A defendant may bring the existence of the pending action and the names of the parties and issues in that action to the attention of the court by requesting that judicial notice be taken of the records of that court. See 23.18. The proper order for the judge to make on sustaining a demurrer on the ground of another action pending is not dismissal, but an order abating further proceedings in the present action until

13

termination of the prior action. Beehler v Beehler, supra; Franchise Tax Bd. v Firestone Tire & Rubber Co. (1978) 87 CA3d 878, 151 CR 460. See also Childs v Eltinge, supra. If the parties in the first action remain the same and if a judgment on the merits is rendered in that action, the demurring party should be granted leave to amend to plead the res judicata effect of that judgment as a bar to the present action. Lord v Garland (1946) 27 C2d 840, 851, 168 P2d 5. If the demurring defendant is dismissed from the prior action or if the prior action is not determined on the merits, the trial court should hear and decide the rights of the parties in accordance with the issues presented by the pleadings in the second action. 27 C2d at 851. See Karp v Dunn (1964) 229 CA2d 192, 195, 40 CR 96.
NOTE Counsel should check local rules for requirements to report related cases to the court and

other parties.

14

24
Motions to Strike
I. INTRODUCTION A. Scope of Chapter 24.1 B. Governing Law 24.2 II. DESCRIPTION AND USE A. Function; Motion to Strike Compared With Demurrer 24.3 B. Grounds 1. In Unlimited Civil Cases 24.4 2. In Limited Civil Cases 24.5 3. Examples of Grounds for Motion to Strike 24.6 III. MOVING PARTYS PROCEDURES A. Timing 1. When to File Against Complaint or Cross-Complaint 24.7 2. When to File Against Answer 24.8 3. Extensions by Stipulation or Court Order 24.9 4. Effect of Trial Court Delay Reduction Act 24.10 5. Motion to Strike Must Be Filed and Heard at Same Time as Demurrer 24.11 6. Setting Time of Hearing; Service 24.12 B. Drafting Motion 24.13 1. Notice of Motion 24.14 2. Judicial Notice 24.15 C. Moving Partys Reply to Opposition Papers; Timing 24.16 IV. OPPOSING THE MOTION 24.17

I. INTRODUCTION 24.1 A. Scope of Chapter This chapter covers motions to strike in civil actions under CCP 435437. It discusses description and use (see 24.324.6), the moving partys procedures (see 24.724.16), the opposition (see 24.17), hearing and ruling (see 24.1824.19), and procedures after ruling (see 24.2024.23). It also contains diagnostic questions (see 24.24), a procedural checklist (see 24.25), forms of notice of motion to strike (see 24.26), and an order granting the motion to strike (see 24.27). A party may file both a motion to strike and a demurrer at the same time. See 24.11. On demurrers generally, see chap 23. [Note: Some sections of this chapter have been intentionally omitted from this reprint.]

Reprinted from California Civil Procedure Before Trial (4th ed Cal CEB 2004), with June 2011 update. To order this book, call 1-800-232-3444, or visit CEBs website at ceb.com.

15

NOTE Except to the extent that general motion to strike rules apply, this chapter does not cover

the special motion to strike under CCP 425.16 that may be addressed to a cause of action brought primarily to chill a persons constitutional right of petition or free speech in connection with a public issue (i.e., a SLAPP, or Strategic Lawsuit Against Public Participation). On SLAPP lawsuits, see Bader & Goldowitz, Californias Powerful Anti-SLAPP Statute: Litigating After Briggs v Eden Council for Hope & Opportunity, 21 CEB Civ Litigation Rep 82 (May 1999). 24.2 B. Governing Law

Motions to strike in civil actions are governed by CCP 435437. A motion to strike is a general appearance in a civil action. See CCP 1014. II. DESCRIPTION AND USE 24.3 A. Function; Motion to Strike Compared With Demurrer A motion to strike is used to challenge pleading defects not vulnerable to challenge by demurrer. For example, a motion to strike can be used to reach procedural defects (see 24.4) or to eliminate part of a cause of action or count (e.g., a claim for punitive damages) even though the rest of the cause of action would stand against a general demurrer. Unlike a demurrer, a motion to strike can also be used to sanction a party for misuse of the discovery process (CCP 2023.030(d)(1)) or a party who fails to comply with local court rules, unless the failure to comply is the fault of counsel and not of the party. CCP 575.2 (court on its own motion or motion of party may strike all or any part of pleading). A motion to strike may be directed against a whole pleading or any part of it. CCP 435(b)(1). Even an objectionable word or phrase may be stricken. A pleading is defined in the code as a demurrer, answer, complaint, or cross-complaint. See CCP 435(a)(2). A motion to strike can eliminate: x x x Irrelevant and redundant matter (see American Aeronautics Corp. v Grand Central Aircraft Co. (1957) 155 CA2d 69, 84, 317 P2d 694); Statements that are conclusions of law (Simpson v Richmond (1957) 154 CA2d 27, 315 P2d 435) or evidentiary matter (Fisher v Larsen (1982) 138 CA3d 627, 646, 188 CR 216); and Such inflammatory terms as illegally and maliciously (unless supported by punitive damages claim) (see Bartling v Glendale Adventist Med. Ctr. (1986) 184 CA3d 961, 970, 229 CR 360). Like a demurrer, a motion to strike: x x x x Attacks matters that appear on the face of the pleading or that can be judicially noticed; Constitutes a general appearance in the action (CCP 1014); Precludes entry of default (CCP 435(c), 585586); and Extends the time to answer the complaint or cross-complaint but not the time within which a demurrer must be filed (CCP 435(c)(d)).

In contrast to a demurrer, a motion to strike is usually the appropriate procedure for eliminating improper punitive damages allegations. Grieves v Superior Court (1984) 157 CA3d 159, 164, 203 CR 556. The objections raised by a motion to strike cannot be raised by demurrer under CCP 430.10430.20. Conversely, an objection that is grounds for a demurrer is usually not a proper ground for a motion to strike. Warren v Atchison, Topeka & Santa Fe Ry. (1971) 19 CA3d 24, 41,

16

96 CR 317; Allerton v King (1929) 96 CA 230, 233, 274 P 90. See generally 5 Witkin, California Procedure, Pleading 10081043 (5th ed 2008). B. Grounds 24.4 x x x x 1. In Unlimited Civil Cases Under CCP 437(a), grounds for a motion to strike must be based on: Matters appearing on the face of the challenged pleading; or Matters of which the court is required to take judicial notice. The challenged pleading contains irrelevant, false, or improper matter); or All or part of the pleading is not drafted or filed in conformity with state law, a local rule, or a court order.

Grounds for a motion to strike are that (CCP 436):

The court may also entertain a motion to strike a pleading filed in disregard of established procedural requirements or that otherwise would violate orderly judicial administration. Neal v Bank of America (1949) 93 CA2d 678, 682, 209 P2d 825. See examples in 24.6. The court can deny a motion to strike on the ground that the defect should have been raised by demurrer. See Warren v Atchison, Topeka & Santa Fe Ry. (1971) 19 CA3d 24, 41, 96 CR 317 (ground asserted in motion merely another way of saying that count did not state facts sufficient to constitute cause of action); Allerton v King (1929) 96 CA 230, 233, 274 P 90 (uncertainty should have been asserted by special demurrer, not motion to strike). But see Neal v Bank of America, supra. For comparison of motions to strike with demurrers, see 24.3.
PRACTICE TIP When the grounds for objection to a pleading do not appear on its face or from

matter that must or may be judicially noticed, the appropriate way to object is by a motion for summary judgment (in which evidentiary matters may be raised) rather than by a motion to strike. Deyo v Kilbourne (1978) 84 CA3d 771, 779 n2, 149 CR 499. On summary judgment, see chap 36. 24.5 2. In Limited Civil Cases

In actions subject to CCP 90100 (economic litigation procedures for limited civil cases) (see chap 6), motions to strike are allowed only on the ground that the damages or relief sought are not supported by the allegations of the complaint. CCP 92(d). 24.6 x 3. Examples of Grounds for Motion to Strike

Grounds for a motion to strike include the following: The pleading is false, i.e., untrue. The word sham, deleted when former CCP 453 was repealed in 1982, was replaced by the word false in the current CCP 436(a). A legislative intent to change the law is presumed when one statute is repealed and another statute with different wording is enacted on the same subject. Garcia v Sterling (1985) 176 CA3d 17, 21, 221 CR 349. Thus, cases decided under former CCP 453, in which sham was defined as untrue, are still good law on this point (see Allen v Stellar (1930) 106 CA 67, 288 P 855), but there is some question about the applicability of cases in which sham was defined as not filed in good faith. Many of the latter cases, however, probably fall within the scope of CCP 436(b), which allows a court to strike any pleading not drawn or filed in conformity with the laws of this state. See, e.g., Tostevin v Douglas (1958) 160 CA2d 321, 330, 325 P2d

17

130 (amended complaint contained numerous unexplained inconsistencies, mistaken statements, contradictions, ambiguities, conflicts, and uncertainties when compared with previous pleadings; court has right to strike this kind of pleading from its files to preserve orderly judicial administration); Neal v Bank of America (1949) 93 CA2d 678, 209 P2d 825 (amended complaint no better than original demurrable complaint; court may strike pleading filed in disregard of established procedural requirements or otherwise violative of orderly judicial administration). x The pleading is filed without the required leave of court. See Stafford v Ballinger (1962) 199 CA2d 289, 297, 18 CR 568 (amended complaint); Gilbert v Sherrod (1925) 75 CA 437, 243 P 30 (cross-complaint). The form of pleading is in violation of a court order. See Morales v Camello (1970) 12 CA3d 370, 90 CR 718 (amended complaint incorporated prior allegations by reference from three prior pleadings despite courts request for complete pleading). The pleading is filed late. See Buck v Morrossis (1952) 114 CA2d 461, 464, 250 P2d 270 (demurrer filed 11 days late); Lincoln Holding Corp. v Union Indem. Co. (1933) 129 CA 399, 18 P2d 744 (amended complaint filed after time granted by court); Collins v Bicknell (1919) 41 CA 291, 182 P 763 (answer and cross-complaint filed after time granted by court). But see Tuck v Thuesen (1970) 10 CA3d 193, 196, 88 CR 759 (no abuse of discretion in denying motion to strike late demurrer when late filing was mere irregularity and moving party not prejudiced by delay), overruled on other grounds in Neel v Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 C3d 176, 98 CR 837. The pleading is barred by the statute of limitations. This ground occurs when an amended complaint or cross-complaint, filed after a limitations statute has run, pleads an entirely different set of facts from those originally pleaded. See Pagett v Indemnity Ins. Co. (1942) 54 CA2d 646, 649, 129 P2d 700; 5 Witkin, California Procedure, Pleading 1217, 12341235 (5th ed 2008). The pleading must be verified. This ground occurs when a pleading is either not verified or improperly verified. See Perlman v Municipal Court (1979) 99 CA3d 568, 574, 160 CR 567 (petition for writ of prohibition); Johnson v Dixon Farms Co. (1915) 29 CA 52, 55, 155 P 134 (answer). The pleading or matter is irrelevant. It does not present or raise a material issue. See Green v Palmer (1860) 15 C 411 (narrative portion of complaint stricken). See also Title Guar. & Trust Co. v Fraternal Fin. Co. (1934) 220 C 362, 30 P2d 515 (answer that pleaded extension of time to pay principal no defense to foreclosure based on failure to pay interest). But see Allerton v King (1929) 96 CA 230, 274 P 90 (error to strike allegations as irrelevant if pleading left defective). The matter is redundant. The matter to be stricken restates matter alleged elsewhere in the pleading. See Wilson v Shea (1924) 194 C 653, 229 P 945 (amended complaint constituted repetition of preceding amended complaint in all essential elements). The pleading is filed by someone who is not a proper party to the action. Dabney v Shippey (1974) 40 CA3d 990, 115 CR 526 (cross-complainants were not indispensable parties who were entitled to appear by cross-complaint). But see CLD Constr. v City of San Ramon (2004) 120 CA4th 1141, 1149, 16 CR3d 555 (even though corporation cannot represent itself in court, filing of complaint by corporation in propria persona is curable defect and dismissal without leave to amend is not mandated).

18

NOTE A motion to strike may also be used to attack the sufficiency of similar documents (e.g.,

a petition for a writ of prohibition) not filed in conformity with the law. See Perlman v Municipal Court, supra. III. MOVING PARTYS PROCEDURES A. Timing 24.7 1. When to File Against Complaint or Cross-Complaint A defendants or cross-defendants notice of motion to strike must be served and filed within the time allowed to respond to a complaint or cross-complaint. CCP 435(b)(1). That time is normally 30 days after the date of service of the summons and complaint (CCP 412.20(a)(3)), cross-complaint (CCP 432.10), amended complaint (CCP 471.5(a)), or amended crosscomplaint (CCP 586). This time requirement does not apply to a motion to strike made as part of a motion under CCP 438(i)(1)(A) after the granting of a motion for judgment on the pleadings. CCP 435(b)(1), (e). For time to respond following remand from federal court, see 22.96. After an answer has been filed, a motion to strike the answered pleading will not ordinarily be heard. See Adohr Milk Farms, Inc. v Love (1967) 255 CA2d 366, 371, 63 CR 123.
PRACTICE TIP Filing a motion to strike can gain an early ruling on the relevance of question-

able allegations. A successful motion to strike eliminates all or part of the other partys claims or defenses and narrows the issues or theories that must be proved. However, striking irrelevant or redundant matter is not normally a sufficient objective to justify the time and expense of a motion to strike unless the matter will materially affect the outcome of the litigation. Even in these instances, it is often better to ignore surplusage in a pleading. If, however, the opponent requests that the pleading be read to the jury during trial of the action, an objection can be raised at that time. See Evid C 350, 352. When the motion can strike a significant claim (e.g., punitive damages barred by statute of limitations), reduce discovery or other pretrial costs, or lead to a more favorable settlement, the motion should be made. When a demurrer will be filed, a motion to strike should be made at the same time. CCP 435436; Cal Rules of Ct 3.1322. 24.8 2. When to File Against Answer

Although the Code of Civil Procedure does not set the time within which a motion to strike an answer must be served and filed, it appears that a motion to strike all or part of an answer must be filed within 10 days after service of the answer because: x x x A notice of motion to strike must be given within the time allowed to plead (Cal Rules of Ct 3.1322); The term pleading means a demurrer, answer, complaint, or cross-complaint (CCP 435(a)(2)); and The only pleading that is appropriately filed to an answer is a demurrer, and demurrers to answers must normally be filed within 10 days after service of the answer (CCP 430.40(b)). 3. Extensions by Stipulation or Court Order

24.9

A stipulation or an order extending the time to answer or otherwise respond may be obtained from the opposing party or from the court, and it can specify whether the time to move to strike is extended or not. See Cal Rules of Ct 2.20, 1.10(c); CCP 473.

19

24.10

4. Effect of Trial Court Delay Reduction Act

The ability to stipulate to extend deadlines for filing responsive pleadings to a complaint may be curtailed by local rules adopted under to the Trial Court Delay Reduction Act (Govt C 6860068620).
NOTE Counsel should examine local rules before seeking or agreeing to extensions of time

within which the parties can file pleadings. For further discussion, see chap 40. 24.11 5. Motion to Strike Must Be Filed and Heard at Same Time as Demurrer

A party may both move to strike and demur to a pleading. If both a motion to strike and a demurrer are filed, they must be filed and heard concurrently. Cal Rules of Ct 3.1322. The court, however, rarely rules on both a motion to strike and a demurrer. See B.F.G. Builders v Weisner & Coover Co. (1962) 206 CA2d 752, 757, 23 CR 815.
NOTE If the demurrer is sustained with leave to amend, the amended pleading may make the

motion to strike superfluous; conversely, if the motion to strike is granted and the pleading is stricken, there is no reason to object by demurrer. For comparison of demurrers and motions to strike, see 24.3. On demurrers generally, see chap 23. 24.12 6. Setting Time of Hearing; Service

A notice of motion to strike, like other law and motion matters, must specify a hearing date at least 16 court days after the notice is served and filed, in addition to the time required for service by methods other than personal delivery, unless the judge orders a shorter time. CCP 1005(b); Cal Rules of Ct 3.1300(b). Proof of service of any moving papers must be filed no later than 5 calendar days before the hearing. Cal Rules of Ct 3.1300(c). For further discussion, see chap 12 (noticed motions). Counsel should become familiar with local rules and practices for the times and places of hearings on law and motion matters. See, e.g., Los Angeles Ct R 9.0(c). In many counties, counsel may consult the court clerk or a judge for instructions on setting the hearing date. 24.13 B. Drafting Motion

In preparing the moving papers, counsel should draft a notice of motion (see 24.14) and if appropriate a request for judicial notice (see 24.15). A memorandum in support of the motion must accompany the notice of motion. Cal Rules of Ct 3.1112(a), 3.1113. On format of court papers generally, see chap 11. On motions generally, see chap 12. 24.14 1. Notice of Motion

If the motion is to strike an entire paragraph, cause of action, count, or defense of the pleading, the notice may refer to the part to be stricken by its number. Otherwise, the notice of motion must quote the portions to be stricken in full. Each item to be stricken must be numbered consecutively in the notice. Cal Rules of Ct 3.1322. It is good practice to include the page and line numbers of each portion of the pleading that the motion challenges. The motion may be denied in its entirety if the matter to be stricken is so broad that it includes matters properly pleaded. See Hill v Wrather (1958) 158 CA2d 818, 823, 323 P2d 567. A motion that is not directed to particular allegations may be considered a motion to strike the entire plead-

20

ing or an entire count and may be denied if any part of the pleading is sufficient. See Triodyne, Inc. v Superior Court (1966) 240 CA2d 536, 542, 49 CR 717. Procedural requirements for noticed motions are discussed in chap 12. On format of court papers generally (including supporting memorandum), see chap 11. See form of notice of motion to strike in 24.26. 24.15 2. Judicial Notice

The grounds for a motion to strike must appear on the face of the challenged pleading or be based on any matter of which the court (see CCP 437(a)): x x Is required to take judicial notice (see Evid C 451 (mandatory judicial notice)); or May take judicial notice (see Evid C 452453 (permissive judicial notice)).

When the motion is based on a matter of which the court may, but is not required to, take judicial notice, that matter must be specified in the notice of motion or in the supporting memorandum unless the court permits otherwise. CCP 437(b). A party requesting judicial notice in the permissive category must provide the court and each party with a copy of the material to be noticed. If the material is part of a court file, the party must specify the part of the file to be judicially noticed and make arrangements with the clerk to have the file in the courtroom at the hearing. Cal Rules of Ct 3.1306(c). For further discussion, see California Trial Practice: Civil Procedure During Trial, chap 14 (3d ed Cal CEB 1995); Jeffersons California Evidence Benchbook, chap 49 (4th ed CJA-CEB 2009).
NOTE Although a court can take judicial notice of the existence of documents in a court file

(Evid C 452(d)), it may take judicial notice only of the truth of facts asserted in those documents that evidence the courts findings, e.g., orders, statements of decision, judgments. Garcia v Sterling (1985) 176 CA3d 17, 21, 221 CR 349; Day v Sharp (1975) 50 CA3d 904, 914, 123 CR 918. 24.16 C. Moving Partys Reply to Opposition Papers; Timing

After being served with opposition papers (see 24.17), the moving party may respond by drafting a memorandum. The reply must be served and filed at least 5 court days before the hearing. CCP 1005(b); Cal Rules of Ct 3.1300(a). The reply must be served electronically or by personal delivery, fax, express mail, or other method reasonably calculated to ensure delivery by the close of the next business day after the papers are filed. CCP 1005(c), 1010.6(a)(2), 1013(g). On the prerequisites for electronic service, see CCP 1010.6, 1013(g); Cal Rules of Ct 2.250 2.259; 18.16A18.16K. On the requirements for fax service, see CCP 1013(e)(f); Cal Rules of Ct 2.3002.306; 18.1118.16. 24.17 IV. OPPOSING THE MOTION

A party opposing a motion to strike should file a supporting memorandum in opposition to the motion. See Cal Rules of Ct 3.1113(a). Like a supporting memorandum, this document should contain a statement of facts drafted by the opposing partys counsel; a concise statement of the law and the arguments relied on; and a discussion of the statutes, cases, and textbooks cited to support the position advanced. See Cal Rules of Ct 3.1113(b). For discussion of procedures for opposing motions generally, see chap 12. All opposition papers must be served and filed at least 9 court days before the hearing date. CCP 1005(b); Cal Rules of Ct 3.1300(a). The opposing papers must be served electronically or by personal delivery, fax, express mail, or other method reasonably calculated to ensure delivery

21

by the close of the next business day after the papers are filed. CCP 1005(c), 1010.6(a)(2), 1013(g). On service generally, see chap 18. On the prerequisites for electronic service, see CCP 1010.6, 1013(g); Cal Rules of Ct 2.2502.259; 18.16A18.16K. On the requirements for fax service, see CCP 1013(e)(f); Cal Rules of Ct 2.3002.306; 18.1118.16.

22

13
Ex Parte Motions and Orders to Show Cause
I. INTRODUCTION A. Scope of Chapter 13.1 B. Governing Law 13.2 II. APPLICATION FOR EX PARTE ORDER A. Nature 13.3 B. When Available 13.4 C. Required Documents 13.5 1. Contents of Application 13.6 2. Declaration Stating Basis for Relief 13.7 3. Declaration Regarding Notice 13.8 4. Contents of Notice and Declaration Regarding Notice 13.9 D. Time of Notice 13.10 E. Filing of Ex Parte Application 13.11 F. Service of Papers 13.12 G. Personal Appearance Requirements 13.13

I. INTRODUCTION 13.1 A. Scope of Chapter This chapter covers the procedures and forms for obtaining a court order without serving a notice of motion on adverse parties, called an ex parte order. It discusses applications (see 13.313.14) and contains forms (see 13.1813.19). This chapter also highlights the procedures for obtaining an order to show cause, which requires another party to attend a hearing and show cause why a specified order should not issue. See 13.1513.17, 13.20. The OSC procedure is typically used for contempt proceedings, family law disputes, preliminary injunctions, and other provisional remedies. Particular ex parte applications and orders are discussed in the other chapters of this book that cover the procedures in which they are used. For example, an ex parte application for an order shortening the time within which a hearing may be held on a noticed motion is covered in 12.6312.64. [Note: Some sections of this chapter have been intentionally omitted from this reprint.]

Reprinted from California Civil Procedure Before Trial (4th ed Cal CEB 2004), with June 2011 update. To order this book, call 1-800-232-3444, or visit CEBs website at ceb.com.

23

13.2

B. Governing Law

Procedures for applying for an ex parte order are set forth in Cal Rules of Ct 3.12003.1207. The Judicial Council has preempted local rules relating to ex parte applications in civil cases under the courts general jurisdiction, unless such rules are otherwise permitted or required by a statute or a rule in the California Rules of Court. Cal Rules of Ct 3.20(a). Nevertheless, some local courts still have rules regarding ex parte motions, and it is suggested that these rules be followed, even though they are arguably preempted. See, e.g., Contra Costa Ct R 7(G); Los Angeles Ct R 7.12(j)(2)(3).
NOTE Local rules continue to apply to ex parte applications in, e.g., family court and probate

court, because Cal Rules of Ct 3.20 does not preempt local rules in these areas (Cal Rules of Ct 3.20(b)). See, e.g., Los Angeles Ct R 10.3710.38 (probate); Los Angeles Ct R 14.3 (family). II. APPLICATION FOR EX PARTE ORDER 13.3 A. Nature The ex parte procedure is used in situations in which a judge may issue an order on the request of one party without the need to give other parties time to prepare and present either papers in opposition or oral argument against the order. A judge asked to sign an ex parte order often wants to be assured that opposing parties have been notified that the moving party is requesting the particular order and has been given an opportunity to informally voice any objections they have to its issuance. See Cal Rules of Ct 3.12003.1207.
NOTE Attorneys use ex parte as an adjective to denote the request (e.g., an ex parte applica-

tion) or the result (e.g., an ex parte order) when the noticed motion procedure specified in chap 12 is not used. 13.4 B. When Available

A motion may be made and granted ex parte when the order issued would affect only the moving party or would not affect a substantial right of any adverse party. McDonald v Severy (1936) 6 C2d 629, 631, 59 P2d 98. Although certain orders may be obtained through ex parte application, a statute silent on the question should not be interpreted as authorizing an ex parte application for an order. St. Paul Fire & Marine Ins. Co. v Superior Court (1984) 156 CA3d 82, 85, 202 CR 571. Some statutes expressly provide that a party may apply ex parte for a particular order. When a statute provides that an order may be obtained on notice, however, the notice of motion procedure in chap 12 must be followed. See McDonald v Severy, supra. Additionally, the use of the term motion rather than ex parte application in a statute imposes the notice and hearing requirements generally applicable to motions. St. Paul Fire & Marine Ins. Co. v Superior Court, supra.
NOTE Some attorneys and judges believe that an order may be issued ex parte, unless a statute

or rule specifically requires a noticed motion and hearing. Other judges believe that orders should be granted ex parte only when it is clear that requiring notice or a hearing would be impracticable, or detrimental to the moving partys rights or to the purpose of order. See generally 6 Witkin, California Procedure, Proceedings Without Trial 5861 (5th ed 2008).

24

13.5

C. Required Documents

An ex parte application must be in writing and include all of the following (Cal Rules of Ct 3.1201): x x x x An application containing the case caption and stating the relief requested (see 13.6, 13.18); A declaration in support of the application making the factual showing required under Cal Rules of Ct 3.1202(c) (see 13.7, 13.18); A competent declaration based on personal knowledge of the notice given under Cal Rules of Ct 3.1204(b) (see 13.813.9, 13.18); A supporting memorandum (see 13.18); and ally applied for ex parte. The authorizing statute can be cited, and any comment needed made under an Argument heading following the declarants signature. The statute may also be cited in the caption and the opening paragraph. x A proposed order (see 13.19). 1. Contents of Application

PRACTICE TIP An extensive memorandum is seldom needed to support the routine orders usu-

13.6

Like other court papers, the application for an ex parte order should comply with form and format requirements prescribed by Cal Rules of Ct 2.1002.119. See chap 12 for discussion. The nature of the paper may be, e.g., Ex Parte Application for Order _ _ _ _ _ _, or Declaration for Ex Parte Order for _ _ _ _ _ _. An ex parte application for an order must state the name, address, and telephone number of any attorney known to the applicant to be an attorney for any party or, if no such attorney is known, the name, address, and telephone number of such party if known to the applicant. Cal Rules of Ct 3.1202(a). If an ex parte application for an order has been made to the court and has been refused in whole or in part, any subsequent application of the same character or for the same relief, although made on an allegedly different state of facts, must include a full disclosure of any previous applications and the courts actions. Cal Rules of Ct 3.1202(b). For form of application, see 13.18. 13.7 2. Declaration Stating Basis for Relief

An applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte. Cal Rules of Ct 3.1202(c). For form of declaration, see 13.18. 13.8 3. Declaration Regarding Notice

An ex parte application for an order must be accompanied by an affidavit or a declaration showing one of the following (Cal Rules of Ct 3.1204(b)): x x That, within the applicable time period under Cal Rules of Ct 3.1203(a) (see 13.10), the applicant informed the opposing party when and where the application would be made; That the applicant in good faith attempted to inform the opposing party but was unable to do so, specifying the efforts made to inform the opposing party; or

25

That, for reasons specified, the applicant should not be required to inform the opposing party. For form, see 13.18.

13.9

4. Contents of Notice and Declaration Regarding Notice

When notice of an ex parte application is given, the person giving notice must state with specificity the nature of the relief to be requested and the date, time, and place for the presentation of the application, and must attempt to determine whether the opposing party will appear to oppose the application. Cal Rules of Ct 3.1204(a). Every ex parte application must be accompanied by a declaration regarding notice that states (Cal Rules of Ct 3.1204(b)): x x The notice given, including the date, time, manner, and name of the party informed, the relief sought, any response, and whether opposition is expected; or Why notice should not be required.

If notice was provided later than 10 a.m. the court day before the ex parte appearance, the declaration regarding notice must explain (Cal Rules of Ct 3.1204(c)): x x The exceptional circumstances that justify the shorter notice, or In unlawful detainer proceedings, why the notice given is reasonable. D. Time of Notice

13.10

A party seeking an ex parte order must notify all parties no later than 10 a.m. the court day before the ex parte appearance, absent a showing of exceptional circumstances that justify a shorter time for notice. A party seeking an ex parte order in an unlawful detainer proceeding may provide shorter notice as long as the notice given is reasonable. Cal Rules of Ct 3.1203(b).
PRACTICE TIP Notification may be given by telephoning the attorneys for other parties or by

delivering or mailing a copy of the application with an indication of the department or judge and of the date and time of submission for issuance of the order. If notice is given by telephone message, include details regarding the time and contents of the message in counsels declaration supporting the ex parte application. See Datig v Dove Books, Inc. (1999) 73 CA4th 964, 87 CR2d 719 (decided under former Cal Rules of Ct 379(b); see now Cal Rules of Ct 3.1203; defense attorney failed to give plaintiff appropriate notice of ex parte application to dismiss and attorneys declaration stated that he had telephoned plaintiffs counsel, but did not state contents of messages or time he left messages). 13.11 E. Filing of Ex Parte Application

The clerk must not reject an ex parte application for filing and must promptly present the application to the appropriate judicial officer for consideration, despite the applicants failure to comply with the notification requirements in Cal Rules of Ct 3.1203(a) (see 13.10). Cal Rules of Ct 3.1205. 13.12 F. Service of Papers

Parties appearing at the ex parte hearing must serve the ex parte application or any written opposition on all other appearing parties at the first reasonable opportunity. Absent exceptional circumstances, no hearing may be conducted unless such service has been made. Cal Rules of Ct 3.1206.

26

PRACTICE TIP Usually, service at the hearing is sufficient. However, courts will deny a motion

if the moving party prepared the application a significant time before the hearing, but failed to serve the papers until the hearing. 13.13 G. Personal Appearance Requirements

A personal appearance is not required on an ex parte application to (1) file a memorandum that exceeds the page limit or (2) set hearing dates on alternative writs and orders to show cause. An appearance is also not required on stipulations by the parties or other orders of the court. Cal Rules of Ct 3.1207.
NOTE Although Rule 3.1207 does not require an appearance on an ex parte application to file

an oversize brief or to set hearing dates on alternative writs and orders to show cause, as a practical matter, courts are often less inclined to grant relief if the attorney does not appear to argue.

27

42
Trial Preference and Continuance Motions
I. INTRODUCTION A. Scope of Chapter 42.1 B. Governing Law 42.2 II. MOTIONS TO ADVANCE, SPECIALLY SET, OR RESET A. Grounds for Motion for Trial Preference 1. Avoiding 5-Year Dismissal 42.3 2. Party Over Age 70 42.4 3. Party Under Age 14 in Wrongful Death or Personal Injury Action 42.5 4. Illness or Medical Condition 42.6 5. Party Seeking Damages Related to Commission of Felony 42.7 6. Other Grounds 42.8 B. Motions to Reset 42.9 C. Procedure 1. Noticed Motion or Ex Parte Application 42.10 2. Showing Required 42.11 3. Service 42.12 4. Setting Matter for Trial 42.13 5. To Whom Motion Is Made 42.14 D. Courts Discretion 42.15 III. MOTIONS FOR CONTINUANCE A. Courts Reluctance to Grant Continuances 42.16 B. Grounds 42.17 1. Basic Requirement of Good Cause 42.18 2. Examples of Good Cause 42.19 3. Other Factors to Consider 42.20 4. Local Variations 42.21 5. Statutory Grounds 42.22 6. Inherent Power of Court to Continue 42.23 C. Court Discretion; Factors Considered 42.24

I. INTRODUCTION 42.1 A. Scope of Chapter This chapter discusses motions for preference and for continuance. Motions for preference include motions to advance, specially set, or reset and are discussed in 42.342.15. Motions for continuance are discussed in 42.1642.28. Sample forms are provided in 42.2942.32. [Note: Some sections of this chapter have been intentionally omitted from this reprint.]

Reprinted from California Civil Procedure Before Trial (4th ed Cal CEB 2004), with June 2011 update. To order this book, call 1-800-232-3444, or visit CEBs website at ceb.com.

29

42.2

B. Governing Law

Motions to advance, specially set, or reset the trial are authorized by Cal Rules of Ct 3.1335. Motions for preference in civil actions are governed by CCP 36. An attorney might move to advance the trial date when a mandatory dismissal under CCP 583.360 (failure to bring case to trial within 5 years) is imminent or to obtain a preferential setting, e.g., when a client is elderly or in poor health. See CCP 36. Many statutes grant preference, such as those on declaratory relief actions (CCP 1062.3(a)) and unlawful detainer actions (CCP 1170.5). Motions or applications for continuances are governed by Cal Rules of Ct 3.1332. Continuances may be granted on many statutory grounds, which are noted in 42.22. II. MOTIONS TO ADVANCE, SPECIALLY SET, OR RESET A. Grounds for Motion for Trial Preference 42.3 1. Avoiding 5-Year Dismissal Motions to advance and specially set are most often used to avoid mandatory dismissal under CCP 583.360. These motions are typically brought under CCP 36(e) (courts discretion on any ground; see 42.8). A motion to specially set to avoid the bar of the 5-year statute raises the same issues as a motion for discretionary dismissal based on delay in prosecution. Biondi, Flemming & Gonzales v Braham (1990) 218 CA3d 842, 847, 267 CR 365. The court should consider the factors listed in Cal Rules of Ct 3.1342(e) when deciding a motion to specially set under CCP 36(e). Salinas v Atchison, Topeka & Santa Fe Ry. (1992) 5 CA4th 1, 10, 6 CR2d 446. Although the approach of the 5-year limit is a critical consideration, it is not exclusive; the court may also consider the plaintiffs lack of diligence, congestion of court calendar, prejudice to the defendant of accelerated trial date, and the likelihood of a mandatory dismissal if an early trial date is denied. Salas v Sears, Roebuck & Co. (1986) 42 C3d 342, 346, 228 CR 504. The plaintiff must make some showing of excusable delay. 42 CR2d at 349; see Parlen v Golden State Sanwa Bank (1987) 194 CA3d 906, 911, 240 CR 73. See chap 39 on involuntary dismissal.
NOTE Counsel should adhere to the courts normal scheduling practice whenever possible and

seek special treatment only in unusual cases (e.g., an unavoidable scheduling conflict) that will incline the court sympathetically toward the motion. Regardless of what the motion requests, the court may set the case directly for trial if circumstances warrant (e.g., when expiration of the 5-year period for bringing the case to trial under CCP 583.310 is imminent). However, the trial court has no duty to compute the last day for trial and to set the case for trial before that date. It is the plaintiffs responsibility to use reasonable diligence to calculate the 583.310 mandatory dismissal date and to request a trial date that is before the expiration of the 5-year period. Lee v Park (1996) 43 CA4th 305, 309, 50 CR2d 511. A motion to advance, specially set, or reset does not affect the courts discretion to dismiss the case under CCP 583.410(a) for failure to prosecute if not brought to trial within 2 years after filing (see CCP 583.420(a)(2)(B); Cal Rules of Ct 3.1340). Parlen v Golden State Sanwa Bank, supra. Indeed, a court may dismiss sua sponte under CCP 583.410(a) in response to a motion to advance, specially set, or reset to avoid mandatory dismissal under CCP 583.360. Salas v Sears, Roebuck & Co., supra. 42.4 2. Party Over Age 70

A party to a civil action who is over age 70 may petition the court for a preference, which the court shall grant if the court makes all of the following findings (CCP 36(a)):

30

x x

The party has a substantial interest in the action as a whole. The health of the party is such that a preference is necessary to prevent prejudicing the partys interest in the litigation.

Before 1991, CCP 36(a) was mandatory, and thus a litigant who qualified under its terms had to be given preferential trial setting irrespective of the circumstances leading to the motion for preference. Rice v Superior Court (1982) 136 CA3d 81, 84, 185 CR 853. On and after January 1, 1991, 36(a) was amended, eliminating the automatic preference for litigants over age 70 and conditioning the grant of preference on the trial courts finding that the health of the party over age 70 is such that a preference is necessary to prevent prejudicing the partys interest in the litigation. Kline v Superior Court (1991) 227 CA3d 512, 514, 277 CR 851. It may even be malpractice if an attorney fails to move for a preferential trial date if counsel is aware that the client is over 70 and in poor health, fails to move for a preferential trial date for over 9 months, and the client dies pending trial. See Granquist v Sandberg (1990) 219 CA3d 181, 268 CR 109. An affidavit submitted in support of a motion for preference under CCP 36(a) (party over age 70) may be signed by the attorney for the party seeking preference based on information and belief as to the medical diagnosis and prognosis of any party. The affidavit is inadmissible for any purpose other than a motion for preference under 36(a). CCP 36.5. 42.5 3. Party Under Age 14 in Wrongful Death or Personal Injury Action

A civil action to recover damages for wrongful death or personal injury shall be entitled to preference on the motion of any party to the action who is under age 14 unless the court finds that the party does not have a substantial interest in the case as a whole. A civil action subject to CCP 36(a) (party over age 70) shall be given preference over a case subject to this subdivision. CCP 36(d). Code of Civil Procedure 36(b) is mandatory. To construe 36(b) as directory or discretionary would, in light of the all encompassing discretion conferred by 36(e), deprive it of meaning and function. Peters v Superior Court (1989) 212 CA3d 218, 224, 260 CR 426. Section 36(b) does not violate the separation of powers doctrine; no case has held that the legislature is absolutely precluded from enacting statutes regulating court procedure. To the contrary, Cal Const art VI, 6 directly empowers the Judicial Council to formulate rules for court administration, practice, and procedure that are not inconsistent with any statute. 212 CA3d at 225. Likewise, CCP 36(b) does not violate equal protection. Ensuring timely court access to children under 14 who have suffered personal injury or parental death is a legitimate legislative purpose, and there is a rational relationship between this purpose and 36(b). 212 CA3d at 226. 42.6 4. Illness or Medical Condition

In its discretion, the court may also grant a motion for preference accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition that raises substantial medical doubt of survival of that party beyond 6 months and that satisfies the court that the interests of justice will be served by granting the preference. CCP 36(d); see Heda v Superior Court (1990) 225 CA3d 525, 527, 275 CR 136. A plaintiff may move for trial preference based on a defendants medical condition. Heda v Superior Court, supra. Although 36(d) addresses calendar preference for trial setting, the statutes rationale for granting calendar preference to certain litigants may equally apply to appellate proceedings. Thus, one

31

court of appeal found that a litigant, who might not survive the delay of an appellate court backlog, was entitled to appellate preference. The court urged the Judicial Council to adopt appropriate rules to make explicit that which is currently implicit, i.e., to provide expressly for appellate calendar preference for ailing or elderly litigants. Warren v Schecter (1997) 57 CA4th 1189, 1198, 67 CR2d 573. 42.7 5. Party Seeking Damages Related to Commission of Felony

A civil action shall be entitled to preference if the action is one in which the plaintiff is seeking damages that were alleged to have been caused by the defendant during the commission of a felony for which the defendant has been criminally convicted. CCP 37(a). The court shall endeavor to try the action within 120 days after the grant of preference. CCP 37(b). 42.8 6. Other Grounds

Despite any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference. CCP 36(e). Other statutes also grant preference, as do those for declaratory relief actions (CCP 1062.3(a)) and unlawful detainer actions (CCP 1170.5). On declaratory relief, see chap 35. 42.9 B. Motions to Reset

Motions to reset are ordinarily made when a case previously set for trial was ordered off calendar. See, e.g., Levine v Pollack (1995) 37 CA4th 129, 43 CR2d 491.
PRACTICE TIP The court will usually deny the motion unless the circumstances that resulted in

the cases being dropped have changed. If the case was dropped without fault of the party seeking to reset (e.g., because of a reasonable but mistaken belief that a settlement had been reached), the court will usually grant the motion and assign an early date for trial. If the party seeking to reset was at fault, however, the court may (1) deny the motion and require the party to file a new, at-issue memorandum, (2) grant the motion but set the case for trial later than the date requested, or (3) take other remedial action. C. Procedure 42.10 1. Noticed Motion or Ex Parte Application Under Cal Rules of Ct 3.1335, a party seeking to advance, specially set, or reset a case for trial must make this request by noticed motion or ex parte application under Cal Rules of Ct 3.1200 3.1207. Cal Rules of Ct 3.1335(a). 42.11 2. Showing Required

The request may be granted only on the moving partys affirmative showing of good cause based on a declaration served and filed with the motion or application. Cal Rules of Ct 3.1335(b). See 42.4 on affidavits when the party is over age 70. See 42.6 for showing required based on partys illness.

32

42.12

3. Service

Unless the court orders otherwise, a party may file and serve a motion for preference, supported by a declaration that all essential parties have appeared or been served with process. CCP 36(c)(1). A party who reaches age 70 may serve a motion for preference at any time. CCP 36(c)(2). 42.13 4. Setting Matter for Trial

After granting a motion for preference, the court must set the matter for trial within 120 days and there shall be no continuance beyond 120 days except for physical disability of a party or a partys attorney, or on a showing of good cause stated in the record. The continuance shall be for no more than 15 days, and no more than one continuance for physical disability may be granted to any party. CCP 36(f). On the granting of a motion for preference under CCP 36(b) (wrongful death or personal injury action with party under age 14), a party in an action based on a health providers alleged professional negligence, as defined in CCP 364, shall receive a trial date no sooner than 6 months and no later than 9 months after the date the motion is granted. CCP 36(g). 42.14 5. To Whom Motion Is Made

Motions to advance, specially set, or reset a case for trial must be made on notice to all parties and, unless the case was previously assigned for all purposes to a specific judge or department, must be presented to the judge supervising the master calendar or, when there is no master calendar, to the judge in whose department the case is pending. If the case has been assigned for all purposes to a specific judge or department, the motion must be made to that judge or department. Local rules should be consulted. 42.15 D. Courts Discretion

Motions to advance, specially set, or reset a trial date are subject to the courts discretion. See CCP 36. The courts ruling will not be reversed on appeal unless an abuse of discretion is shown. Parlen v Golden State Sanwa Bank (1987) 194 CA3d 906, 240 CR 73. III. MOTIONS FOR CONTINUANCE 42.16 A. Courts Reluctance to Grant Continuances Even before the advent of the Trial Court Delay Reduction Act (Govt C 6860068620), many California courts, especially those in metropolitan counties, had adopted firm nocontinuance policies to aid in attacking ever-increasing backlogs of untried civil cases. The Trial Court Delay Reduction Act now expressly directs trial court judges to [a]dopt and utilize a firm, consistent policy against continuances, to the maximum extent possible and reasonable, in all stages of the litigation. Govt C 68607(g). In addition, Cal Rules of Ct 3.1332(a) requires that the date set for trial be firm and certain. A continuance cannot be granted without an affirmative showing of good cause. Cal Rules of Ct 3.1332(c). See County of San Bernardino v Doria Mining & Engg Corp. (1977) 72 CA3d 776, 779, 140 CR 383. On the delay reduction rules, see chap 40.

33

42.17

B. Grounds

There is no comprehensive statutory scheme relating to trial continuances. The circumstances that may indicate good cause for granting continuances are set out in Cal Rules of Ct 3.1332(c) (see 42.19), local rules or policy (see 42.21), and, in a few situations, by statute (see 42.22). In some instances, a court may exercise its inherent powers to continue a case on its own motion. See 42.24. 42.18 1. Basic Requirement of Good Cause

The basic requirement for allowing a continuance of a civil case is set forth in Cal Rules of Ct 3.1332(c), which provides that no continuance may be granted except on an affirmative showing of good cause. Although continuances of trials are disfavored, each continuance request must be considered on its own merits. Cal Rules of Ct 3.1332(c). 42.19 x 2. Examples of Good Cause

Circumstances that may indicate good cause include: The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances. Cal Rules of Ct 3.1332(c)(1); Arntz Contracting Co. v St. Paul Fire & Marine Ins. Co. (1996) 47 CA4th 464, 488, 54 CR2d 888 (continuance denied when expert witness suffered stroke shortly before trial, but his deposition testimony was available, another witness testified competently on the subject, and the court forbade plaintiff from commenting on experts absence). The unavailability of a party because of death, illness, or other excusable circumstances. Cal Rules of Ct 3.1332(c)(2); Lewis v Neptune Socy (1987) 195 CA3d 427, 657, 240 CR 656 (illness no basis for grant of continuance if party can attend trial); Young v Redman (1976) 55 CA3d 827, 831, 128 CR 86 (no ground for continuance when party has notice of trial but fails to adjust personal plans to attend). The unavailability of trial counsel because of death, illness, or other excusable circumstances. Cal Rules of Ct 3.1332(c)(3); see Hernandez v Superior Court (2004) 115 CA4th 1242, 9 CR3d 821 (serious illness and death of plaintiffs trial counsel was good cause for granting further continuance of trial date and reopening discovery); Oliveros v County of Los Angeles (2004) 120 CA4th 1389, 16 CR3d 638 (trial court erred in denying defendants prompt request for continuance due to attorneys unexpected engagement in another trial); Mahoney v Southland Mental Health Assocs. Med. Group (1990) 223 CA3d 167, 272 CR 602 (plaintiffs counsel failed to promptly request continuance, even if one counsel departed and another became ill before hearing date); Vann v Shilleh (1975) 54 CA3d 192, 194, 126 CR 401 (insufficient time to find substitute counsel). The substitution of trial counsel, but only when an affirmative showing is made that the substitution is required in the interests of justice. Vann v Shilleh (1975) 54 CA3d 192, 126 CR 401 (abuse of discretion to deny partys motion for continuance, even though made on day of trial, when partys attorney withdrew from case too close to trial, and party lacked sufficient advance warning). Cal Rules of Ct 3.1332(c)(4). representing him- or herself. Nelson v Gaunt (1981) 125 CA3d 623, 178 CR 167. In Nelson, the trial courts refusal to grant a continuance was upheld when the defendant stated on the day of trial that he lacked funds for an attorney but made no showing of penury and did not explain why he waited until then to declare his predicament.

NOTE A court need not be more liberal than usual in granting continuances when a litigant is

34

The addition of a new party if (Cal Rules of Ct 3.1332(c)(5)): x x The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new partys involvement in the case.

x x

A partys excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts. Cal Rules of Ct 3.1332(c)(6). A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. Cal Rules of Ct 3.1332(c)(7). 3. Other Factors to Consider

42.20

In ruling on a motion or an application for continuance, the court must consider all facts and circumstances that are relevant to the outcome. These may include: x x x x x x x x The proximity of the trial date. Cal Rules of Ct 3.1332(d)(1). Whether there was any previous continuance, extension of time, or delay of trial due to any party. Cal Rules of Ct 3.1332(d)(2). The length of the continuance requested. Cal Rules of Ct 3.1332(d)(3). The availability of alternative means to address the problem that gave rise to the motion or application for a continuance. Cal Rules of Ct 3.1332(d)(4). The prejudice that parties or witnesses will suffer because of the continuance. Cal Rules of Ct 3.1332(d)(5). If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay. Cal Rules of Ct 3.1332(d)(6). The courts calendar and the impact of granting a continuance on other pending trials. Cal Rules of Ct 3.1332(d)(7). Whether trial counsel is engaged in another trial. Cal Rules of Ct 3.1332(d)(8). See Oliveros v County of Los Angeles (2004) 120 CA4th 1389, 16 CR3d 638 (trial court erred in denying defendants prompt request for continuance due to attorneys engagement in another trial). Whether all parties have stipulated to a continuance. Cal Rules of Ct 3.1332(d)(9). Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance. Cal Rules of Ct 3.1332(d)(10). Any other fact or circumstance relevant to the fair determination of the motion or application. Cal Rules of Ct 3.1332(d)(11). 4. Local Variations

x x x

42.21

In reality, there are local variations in the degree to which the policy on continuances set forth in Cal Rules of Ct 3.1332 is followed. Consequently, counsel must determine the specifics of court policy in a particular county. In smaller counties, where court business is less voluminous and is handled more informally, courts may adopt more liberal approaches to continuances. 42.22 5. Statutory Grounds

The more common statutory grounds for granting trial continuances are:

35

Amendment of pleadings. A court may, on its own motion, grant a continuance when an amendment to the pleadings, or the allowance of time to make an amendment or to plead, makes the continuance necessary. CCP 473, 594a. Membership in legislature. Any trial must be postponed when any party, attorney, or principal witness is a member of the California legislature and the legislature is in session or in a recess not exceeding 40 days. CCP 595. The language of 595 has been construed as directory and not mandatory, however. See Thurmond v Superior Court (1967) 66 C2d 836, 59 CR 273. In response to Thurmond, the legislature added the second paragraph of 595, specifying certain instances in which the section is not mandatory. It is unclear whether a court might find the section merely directory in instances beyond those specified. Party in armed forces. The Servicemembers Civil Relief Act of 2005 (50 USC App 501 548, 560591) provides that, in any action or proceeding in which a plaintiff or defendant (not a witness) is in military service, the court may, on its own motion, and must on the motion of the party, grant a continuance, unless the partys ability to prosecute or defend the action is not materially affected by the military service. Court conflict. The court may, on its own motion, order a continuance when it is engaged in another trial. CCP 594a. Stipulation. The court must postpone a trial for up to 30 days when all attorneys of record for parties who have appeared agree in writing to the postponement. CCP 595.2. However, it has been held that, despite its mandatory language, 595.2 is only directory. Pham v Nguyen (1997) 54 CA4th 11, 62 CR2d 422. Some courts have adopted rules or policies that directly contradict the literal language of 595.2. See, e.g., Santa Clara Ct R 7(D) (affirmative showing of good cause necessary for continuance). Absence of evidence. A trial may be postponed on the ground of absence of evidence on a showing by affidavit (or declaration; see CCP 2015.5) that the expected evidence is material and that due diligence has been used to procure it. CCP 595.4. When the motion is due to the absence of a material witness, however, the court may require the moving party to state by affidavit (or declaration) what the expected testimony will be. If the adverse party then agrees that the evidence may be considered as having actually been given at the trial or offered and overruled as improper, the trial may not be postponed. CCP 595.4. Summary judgment motion. If it appears from the affidavits submitted in opposition to a motion for summary judgment that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. CCP 437c(h); Oldcastle Precast, Inc. v Lumbermens Mut. Cas. Co. (2009) 170 CA4th 554, 576, 88 CR3d 363; Bahl v Bank of America (2001) 89 CA4th 389, 395, 107 CR2d 270. On summary judgment, see chap 36. 6. Inherent Power of Court to Continue

x x

42.23

In addition to the grounds for trial continuances discussed above, a court may exercise its inherent powers to continue a case on its own motion as long as neither party is prejudiced by the continuance. See, e.g., People v Hernon (1951) 106 CA2d 638, 645, 235 P2d 614 (court may order continuance to hear testimony from material witness although neither party so requests). See also Santandrea v Siltec Corp. (1976) 56 CA3d 525, 529, 128 CR 629, disapproved on other grounds in Bauguess v Paine (1978) 22 C3d 626, 150 CR 461 (every court has inherent power to regulate proceedings of matters before it and to effect orderly disposition of issues presented).

36

42.24

C. Court Discretion; Factors Considered

The court has broad discretion to determine whether good cause exists for granting a motion for a trial continuance; its decision will be reversed on appeal only when there is a clear abuse of discretion resulting in prejudice. Forthmann v Boyer (2002) 97 CA4th 977, 118 CR2d 715; Eastwood v Froehlich (1976) 60 CA3d 523, 529, 131 CR 577. See Hernandez v Superior Court (2004) 115 CA4th 1242, 1247, 9 CR3d 821 (trial courts failure to consider illness and death of trial counsel in setting trial date was abuse of discretion); Oliveros v County of Los Angeles (2004) 120 CA4th 1389, 16 CR3d 638 (trial courts failure to balance all competing interests in ruling on motion to continue trial date due to unavailability of counsel was abuse of discretion).

37

About The Panelists

James E. Hart
Mr. Hart represents and counsels public and private sector employers in a wide range of employment and labor matters and across diverse industries. He has represented companies in wrongful termination, wage and hour and in employment discrimination, harassment and retaliation matters. He has experience in all facets of the litigation process, from initial investigation and filing through trial and appeal. Mr. Hart has extensive experience representing companies in complex wage and hour class action in both state and federal court. Mr. Hart has defended the interests of companies in audits and administrative proceedings brought by or to such governmental agencies as the U.S. Department of Labor and the California Division of the Labor Standards Enforcement. He has also assisted in internal human resources investigations of employees, audits of company policies and in other ongoing employee matters, such as workplace violence restraining orders. Mr. Hart conducts trainings on harassment, termination procedures, wage and hour and other issues. Mr. Hart is a frequent writer on employment related topics. Prior to joining Littler, Mr. Hart practiced criminal law as a Deputy Attorney General in the California Attorney General's Office. While at the Attorney General's Office, Mr. Hart prosecuted felonies and misdemeanors and defended criminal convictions on appeal and in habeas corpus proceedings. Mr. Hart also participated in an exchange program with the Los Angeles City Attorney's Office while at the Attorney General's Office. Mr. Hart also has served as an extern to the Honorable Federal District Court Judge Consuelo B. Marshall of the Central District Court of California. Mr. Hart received his law degree, with honors, from Pepperdine University School of Law in 1997. A comprehensive biography for Mr. Hart is available at: www.littler.com.

39

Peter S. Selvin
Peter Selvin is a trial lawyer whose practice is focused on complex commercial, financial and corporate disputes; insurance coverage and bad faith litigation; and international litigation and arbitration. He is listed in The Best Lawyers in America for Commercial Litigation and Insurance Law. Representative commercial litigation matters have included a three-month jury trial involving the defense of German media giant Bertelsmann in a "bet the company" case; the representation of such Fortune 500 companies as AIG, City National Bank and Travelers Insurance Company in high stakes litigation; and the ongoing representation of media personality Tony Robbins and his affiliated companies in civil litigation, insurance coverage and labor matters. In the insurance arena, Mr. Selvin has handled insurance coverage, bad faith and broker's malpractice cases. He has obtained significant insurance recoveries on behalf of policyholders. In the area of international litigation, Mr. Selvin has handled cases involving foreign parties; the coordination of parallel proceedings in different jurisdictions; sovereign immunity; and discovery proceedings abroad. Mr. Selvin is also a noted author and speaker on matters involving international litigation and arbitration. He periodically speaks at The Directors Roundtable, Risk and Insurance Management Society (RIMS) and the American Association of Corporate Counsel (ACCA). Mr. Selvin received his law degree from the University of California at Los Angeles School of Law in 1980. Additional information about Mr. Selvin and his firm, Raines Feldman LLP, can be found at www.raineslaw.com.

40

Surjit Paul Singh Soni

Mr. Soni is the founding member of The Soni Law Firm in Pasadena specializing in intellectual property rights, patents, trademark & trade dress, copyrights, trade secrets, unfair competition litigation, complex business litigation, insurance coverage litigation, international trade law, franchise law and business affairs. He is a former partner in charge of the litigation group at Sheldon & Mak. Mr. Soni has served on numerous committees including the Patent, Trademark & Copyright Committee, the International Trade Commission Subcommittee, and the Product Simulation and Functionality Subcommittee of the American Bar Association; the Los Angeles County Bar Associations Litigation Section Executive Committee; and the State Bar of Californias Intellectual Property Section Executive Committee. He has served as the Director of the Indian Lawyers Association, the Los Angeles Chapter of the Federal Bar Association, and the Pasadena Bar Association. Recognized for his expertise in his practice areas, Mr. Soni has been widely published by Continuing Education of the Bar, Matthew Bender, The Los Angeles Daily Journal, the State Bar of the State of California, The Legal Intelligencer, Bests Review, Trademark World and Bancroft Whitney. Mr. Soni is a frequent lecturer and educator. His speaking engagements include topics such as : Rights of Publicity for the New York Bar Association; Malpractice Issues re: Intellectual Property in International Business Transactions and Avoiding Trade Dress and Product Configuration Infringement for the State Bar of California; Trademark, Copyright, State Claims & Litigation for Southwestern University School of Law; Trade Dress, Packaging and Labeling and Emulation Without Infringing: The American Experience for the European Studies Conference. Mr. Soni received his law degree from the University of Miami School of Law in 1984. Additional information about Mr. Soni and his firm can be found at www.sonilaw.com

41