Discovery Methods Used in Litigation in California – Part 2 of 2

Discovery methods used in litigation in California are the topic of this blog post.

This blog post will discuss requests for production of documents and special interrogatories in California and is the second in a two part series that discusses the various discovery methods utilized in litigation in California.

The information in this blog post only applies to unlimited civil cases in which the amount demanded is more than $25,000.

Requests for Production of Documents:

Serving a request for production of documents is an excellent tool that allows any party to a lawsuit to obtain all documents that support the claims or defenses of the opposing party or parties so that they can be reviewed.

In addition to requesting production of documents a party can also demand production and inspection of documents and tangible things, as well as entering onto land for inspection and other purposes.

The rules governing requests for production of documents are found in Code of Civil Procedure § 2031.010, et seq.

The law in California states that a defendant may propound a request for production of documents at any time, however a plaintiff may not do so until at least ten (10) days have passed since service of the summons on the defendant, or the general appearance by the defendant, whichever occurs first.  See Code of Civil Procedure § 2031.020.

Requests for production of documents have an important advantage over other discovery methods due to the fact that there is no numerical limit to the number of requests specified in California law. However a party served with excessive requests may seek leave of court to limit the number of requests.

Another advantage of requests for production of documents are that unlike special interrogatories and requests for admission there are no format or content restrictions whatsoever and no restrictions on any preface or instructions that may be included unlike special interrogatories and requests for admission.

The documents request should be limited to any and all documents that might contain relevant information that would assist the requesting party in evaluating the case, preparing for trial, or facilitating a settlement or that might reasonably lead to admissible evidence.

The California courts have ruled that the scope of discovery in California civil litigation is very broad. Any doubts are applied liberally in favor of discovery. And information is considered relevant if it could reasonably assist a party in evaluating case, preparing for trial, or facilitating settlement.

The mere fact that a particular document might not be admissible does not prevent a party from requesting that document on the grounds that information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.

Requests for production and inspection of documents and tangible things are very useful in that they allow a party to review in detail all relevant documents and tangible things that support the opposing party’s claims or defenses.

Special Interrogatories:

Special interrogatories are written questions that are drafted based on a review of a particular case.

Serving special interrogatories is used to require an opposing party to state the facts, witnesses and documents on which their contention or contentions are based so they can be reviewed.  Depending on the responses to the first set of special interrogatories your attorney may draft and serve another set of special interrogatories.

The rules governing special interrogatories are found in Code of Civil Procedure § 2030.010, et seq.

The law in California states that a defendant may propound special interrogatories at any time, however a plaintiff may not do so until at least ten (10) days have passed since service of the summons on the defendant, or the general appearance by the defendant, whichever occurs first. See Code of Civil Procedure § 2030.020.

There is a numerical limit of thirty five (35) on the number of special interrogatories.  However if a supporting declaration stating that any additional interrogatories are warranted due to the complexity of the case and other certain factors is attached, then any party may propound more additional special interrogatories. See Code of Civil Procedure §§ 2030.030 and 2030.050.

There are certain format restrictions on special interrogatories.  No special interrogatory may contain subparts, or a compound, conjunctive or disjunctive question. See Code of Civil Procedure § 2030.060.  This means that a special interrogatory cannot contain part a, b, c, etc., nor can it contain a question with more than one part, and it cannot contain the word “and” which is conjunctive, it also cannot contain the word “or” which is disjunctive. Although many special interrogatories do violate these format rules any party using such a format runs the risk of the opposing party objecting on those grounds.

Retaining an attorney that is experienced in litigation is essential as they will analyze the fact pattern of your particular case and will create special interrogatories designed to obtain information on the facts, witnesses and documents that would assist the requesting party in evaluating the case, preparing for trial, or facilitating a settlement or that might reasonably lead to admissible evidence.

Special interrogatories have an advantage over depositions due to the fact that deposition questions may not ask party deponent to state all facts, list all witnesses and identify all documents that support or pertain to particular contention in that party’s pleadings, although that information is discoverable when sought by written interrogatory.

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

 

 

A corporation cannot represent itself in Court in California

Why a corporation cannot represent itself in Court in California is the topic of this blog post.

There is no actual statutory law in California stating that corporations must be represented by an attorney in Court but the rule that a corporation cannot represent itself in Court is a long-standing common law rule that is very well established in the case law.

A limited liability company (LLC) is also required to be represented by an attorney in the California Courts as well as all other fictitious entities.

An individual is considered a natural person and can of course represent themselves in court.  However a corporation or LLC is considered an artificial person in the eyes of the law.  As this article will clearly show, any corporation or LLC that wants to file a response to a complaint or cross-complaint filed in a limited or unlimited civil proceeding in a California Court must be represented by a licensed attorney.  The individuals that own the corporation or LLC may represent themselves if they are sued individually but they cannot represent any other person, whether that person is an artificial or natural person.

If you are the owner of a corporation or LLC and you have been served with a summons and complaint, or you want the corporation or LLC to sue another person you should contact an experienced attorney as soon as possible.

If a corporation or LLC attempts to file an answer to a complaint, or a complaint the clerk will most likely reject the complaint for filing.  And even if the clerk accepts the answer or complaint for filing the opposing party can file a motion to strike the answer, complaint or pleading on the grounds that it is not filed in accordance with the laws of the State of California.

Many small business owners are not aware of this general rule but the plain fact is that the rule that a corporation or LLC cannot represent itself applies even if the corporation or LLC is owned and operated by only one person.  They must also be represented in order to file a complaint against another party as well as virtually all other legal documents filed with the court except for possibly a notice of appeal from an administrative decision from the Labor Commissioner. See Rogers v. Municipal Court, (1988) 197 Cal. App. 3d 1314, 1319.

Both corporations and LLC’s are entities which must be in good standing in order to participate in litigation in any court. California case law has held that a corporation cannot represent itself in court, either in propria persona or through an officer or agent who is not an attorney. Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal. 3d 724, 729. See also Van Gundy v. Camelot Resorts, Inc. (1983) 152 Cal.App.3d Supp. 29, 32; Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101; citing Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 727, 729 and Paradise v. Nowlin (1948) 86 Cal.App.2d 897, 898.

Corporations cannot appear pro per for three distinct reasons: (1) any representative sent on behalf of the corporation would be engaged in the unauthorized practice of law; (2) the rule ensures that qualified professionals will appear in court, thereby increasing the efficient and proper administration of justice; and (3) the distinction helps to maintain the wall between the corporation as an entity and its individuals shareholders, directors, and officers. See CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 765, 773.

A corporation has the capacity to bring a lawsuit because it has all the powers of a natural person in carrying out its business according to California law. However, under a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. It must be represented by licensed counsel in proceedings before courts of record.

The same common law rule applies in federal courts, notwithstanding the comparable federal statute that permits “parties” to plead and conduct their own cases personally. See Rowland v. California Men’s Colony, Unit II Men’s Advisory Council (1993) 506 U.S. 194, 201-202, 113 S.Ct. 716, 121 L.Ed.2d 656.

The rule exists in most sister states as well, often by statute. Annot., Propriety and Effect of Corporations Appearance Pro Se Through Agent Who is Not Attorney (1992) 8 A.L.R.5th §§ 2, 3, pp. 672, 675.

STATUTORY EXCEPTIONS TO THE RULE

There are two statutory exceptions to the rule that a corporation or LLC must be represented by an attorney in a California court proceeding.

The first exception is found in Code of Civil Procedure section 116.510 et seq., providing that a corporation can appear pro per in a small claims action by sending a corporate representative.

The second exception concerns judgment debtor examinations and is found in Code of Civil Procedure section 708.150(d) which states that, ”A corporation, partnership, association, trust, or other organization, whether or not a party, may appear at an examination through any authorized officer, director, or employee, whether or not the person is an attorney.”

If a corporation or LLC is represented by an attorney and a judge has granted a motion by their attorney of record to withdraw, the corporation or LLC must retain another attorney as soon as possible. Most judges will allow a reasonable period of time such as 20-30 days for the corporation or LLC to retain another attorney once the judge has granted the motion to withdraw as counsel of record.

A corporation or LLC that is not satisfied with their current attorney and wishes to retain another attorney can always substitute their attorney through the filing of a substitution of attorney with the court.  This will avoid any issues that would arise if the corporation or LLC were not represented by an attorney.

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

Discovery Methods Used in Litigation in California – Part 1 of 2

Discovery methods used in litigation in California are the topic of this blog post.

Discovery makes or breaks litigation.  Knowing how discovery tools work enables a litigant to get the most out of their case.  This blog post will discuss requests for admission and depositions in California. This blog post is the first in a two part series that will discuss the various discovery methods utilized in litigation in California. The information in this blog post only applies to unlimited civil cases in which the amount demanded is more than $25,000.

Requests for admission:

Requests for admission are written requests that are served on the opposing party. Requests for admission can request that the opposing party admit or deny certain pertinent facts, and/or admit or deny that certain documents attached to the requests for admission are genuine.

The purpose of requests for admission is to reduce the number of issues that will have to be tried or to establish whether or not certain documents such as a contract are genuine.  For example requests for admission may be served on the opposing party requesting, among other things, that they admit that they signed a specific document on a certain date and that a copy of the document which is attached is a genuine copy of the document that they signed.

The law in California states that a defendant may propound requests for admission at any time, however a plaintiff may not do so until at least ten (10) days have passed since service of the summons on the defendant, or the general appearance by the defendant, whichever occurs first. See Code of Civil Procedure § 2033.020.

The rules governing requests for admission are found in Code of Civil Procedure § 2033.010, et seq.

California law imposes a numerical limit of thirty five (35) on the number of requests for admission as to the truth of facts.  However if a supporting declaration stating that any additional requests for admission are warranted due to the complexity of the case and other certain factors is attached, then any party may propound additional requests for admission.  See Code of Civil Procedure §§ 2033.030 and 2033.040.

There is no numerical limit on requests for admission of the genuineness of documents except as justice requires to protect the responding party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. See Code of Civil Procedure §§ 2033.030 and 2033.050.

California law also imposes certain format restrictions on requests for admission.  No request for admission may contain subparts, or a compound, conjunctive or disjunctive question. See Code of Civil Procedure § 2033.060.  This means that a request for admission cannot contain part a, b, c, etc., nor can it contain a question with more than one part, and it cannot contain the word “and” which is conjunctive, it also cannot contain the word “or” which is disjunctive.

Although many requests for admission do violate these format rules any party using such a format runs the risk of the responding party objecting on those grounds.

Requests for admission have an important advantage in that a party may not amend or withdraw their response to any request for admission without requesting leave of court to amend or withdraw their admission. See Code of Civil Procedure § 2033.300. This is in contrast to responses to interrogatories and requests for production of documents which in most cases may be amended or supplemented without requesting permission from the court.

An experienced litigation attorney can analyze the fact pattern of your particular case and draft requests for admission specifically designed for your case.

Depositions:

The purpose of a deposition is to request that the opposing party or any other individual or company be questioned under oath, typically in an attorney’s office regarding all matters that are relevant to any of the issues involved in that particular lawsuit.   The party being deposed can also be requested to produce specified documents at the deposition as well. During the deposition a certified shorthand reporter creates a verbatim record of everything that is said during the deposition.  The deposition can also be videotaped as well.

When an entity such as a corporation is deposed they are required to designate the person most knowledgeable regarding certain facts that must be specified in the deposition notice.

The law in California states that a defendant may serve a deposition notice without leave of court at any time after that defendant has been served, or has appeared in the action, whichever occurs first. The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. On motion with or without notice, the court, for good cause shown, may grant to a plaintiff leave to serve a deposition notice on an earlier date. See Code of Civil Procedure § 2025.210.

Depending on the situation a deposition may be scheduled fairly early in the case, or may not be scheduled until later in the case, after discovery has been served and responded to. This is particularly true when taking the deposition of the opposing party as they can then be questioned under oath regarding their discovery responses.

A major disadvantage of depositions is the cost.  The party taking the deposition must pay for the services of the certified shorthand reporter, the hourly rate for their attorney and in some cases may have to pay to rent the conference room where the deposition will be held.  However depositions can also be very useful if used correctly.  This is where retaining an experienced litigation attorney will pay dividends as they can determine whether taking depositions would be cost effective in your case.

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

 

Demurer to a complaint in California

Responding to a complaint in California by filing a demurrer is the topic of this blog post.

A demurrer is a response to a pleading that objects to or challenges a pleading filed by an opposing party. The word demur literally means “to object”; a demurrer is the legal document that makes the objection.

There are two types of demurrers in California, a general demurrer, and a special demurrer.  A demurrer can also be filed in response to a cross-complaint.

A general demurrer is usually filed on one of two grounds, failure to state facts sufficient to constitute a cause of action, and the Court lacks subject matter jurisdiction.

A special demurrer can be made on any one of several grounds, including uncertainty and lack of capacity to sue. The grounds for a special demurrer are waived unless they are raised by a special demurrer, or listed as affirmative defenses in the answer.

In most cases a demurrer will be filed instead of filing an answer.  Even if the demurrer is directed to only one cause of action in a complaint or cross-complaint the party that filed the demurrer is not required to answer the remaining causes of action until after the Court has ruled on the demurrer.

A demurrer will extend the period of time to file an answer, but it does not extend the period of time for filing a motion to strike.  In certain cases filing a motion to strike is also appropriate. If that is the case the motion to strike must be concurrently filed and served along with the demurrer, and must be set for hearing on the same day and time with the demurrer.

Code of Civil Procedure § 430.10 states, in pertinent part: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in section 430.30, to the pleading on any one or more of the following grounds…(e) the pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible. (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

Filing a special demurer is not permitted in limited civil cases under the provisions of Code of Civil Procedure § 92(c).

Filing a general demurrer is appropriate in cases where the at least one of the causes of action of the complaint does not state sufficient facts to constitute a cause of action.  The most common situation would be where the plaintiff has failed to allege an essential element of the cause of action.

It should be noted that the California legislature has imposed a meet and confer requirement for demurrers which is found in Code of Civil Procedure section 430.41.  The new requirements were added by statute in 2015 and became effective on January 1, 2016.

California law now imposes a meet and confer requirement before filing most demurrers to a complaint, cross-complaint or answer under the provisions of Code of Civil Procedure section 430.41.

The meet and confer effort must be made at least five days before the responsive pleading is due.

The California legislature enacted this requirement in the hopes that it would reduce the number of demurrers that are filed by imposing a requirement to meet and confer before most demurrers can be filed.

A demurrer is fundamentally different from other motions such as a motion for summary judgment in that there is no extrinsic evidence allowed unless it could be judicially noticed.   Thus for most demurrers the court can only look at the “four corners of the pleading.” However any exhibits that are attached to the complaint can be judicially noticed and if they contradict any of the allegations in the complaint the allegations in the complaint will be disregarded and the court will rule based on the facts stated in the attached exhibits.

Careful analysis and research is essential before making a decision as to whether or not filing a demurrer is an appropriate response as the sole issue raised by a general demurrer for failure to state a cause of action is whether the causes of action being demurred to state sufficient facts to constitute a cause of action.

A common error made by some parties is filing a demurrer and attempting to argue that the plaintiffs have insufficient evidence or are not likely to prevail on their claims. This will not be successful as the law is settled in California that a demurrer for failure to state a cause of action is not concerned with the likelihood that the plaintiffs will prevail, nor even whether they have evidence to support their allegations.

A special demurrer for uncertainty is a disfavored ground for a demurrer. A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond which means that he or she cannot reasonably determine what issues they have to admit or deny, or what counts or claims are directed against them.

An experienced attorney can review a complaint or cross-complaint and determine whether or not filing a demurrer to the complaint or cross-complaint is appropriate. Many complaints are poorly written and the filing of a demurrer in the appropriate situations may result in certain causes of action such as fraud being dismissed for failure to state a cause of action.

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

 

 

 

Answer to a complaint in California

Filing an answer to a complaint in California is the topic of this blog post.

Contacting an experienced litigation attorney as soon as possible once you have been served with a complaint is extremely important as in most cases you will only have 30 calendar days to file your answer with the court.

An experienced litigation attorney will meet with you to discuss your situation as well as review the complaint. They will then decide on the appropriate response to the complaint.  If the complaint is defective in some manner they may decide that the best course of action is to file a demurrer or motion to strike instead of filing an answer.  If the complaint is not defective they will draft and prepare your answer to the complaint.

California law permits unverified complaints unless a specific statute or code provides otherwise, although any complaint may be verified at the option of plaintiff.  Civil complaints in California can be either unverified or verified.

The law in California states that if a complaint is verified the answer to the complaint must be verified. California law also states that any answer to a complaint filed by a governmental entity must be verified. See Code of Civil Procedure § 446.  These rules only apply in unlimited civil cases in which the demand of the complaint exceeds $25,000.00.

Verified answers must admit or deny each and every paragraph of the complaint, and must also contain a verification signed by the defendant or defendants stating that they have read the answer and everything contained therein is true and correct to the best of their knowledge. The verification must be signed under penalty of perjury.  Failing to verify your answer when one is required will subject the answer to a motion to strike on the grounds that it is not verified.

In your answer to a verified complaint you must admit or deny each and every paragraph of the complaint or deny on the basis of lack of information or belief.  Your attorney will go over the complaint with you and tell them what your response is to each and every paragraph.

Your answer must be carefully reviewed as any allegations of a verified complaint that are not specifically denied are deemed admitted.

Answering an unverified complaint in California is much easier as the law in California states that you can answer the complaint with a general denial in which you generally deny all of the allegations of the complaint.

Your attorney will also include what are known as affirmative defenses which they will draft specifically for your answer based on your unique circumstances. An experienced litigation attorney will avoid the use of “boilerplate” affirmative defenses as that type of answer may be objected to on the grounds that the answer fails to state facts sufficient to state any defenses to the complaint.

Common affirmative defenses include:

The statute of limitation which means that the plaintiff has waited too long to file the lawsuit against you.

Failure to state a cause of action which means that the plaintiff has not alleged sufficient facts to constitute a cause of action.

Unclean hands which means that the plaintiff has engaged in conduct that should prevent them from winning their case.

Other affirmative defenses include accord and satisfaction, lack of consideration, waiver, laches, and estoppel.

An experienced attorney will draft an answer for you that will meet all of the specific requirements that California law requires for an answer.  For example your attorney will ensure that your various affirmative defenses are separately stated and that they refer to the causes of action to which they relate in a manner by which they may be intelligently distinguished. These requirements are imposed by Code of Civil Procedure § 431.30(g).

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com