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 Civil Court
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Defendant: Answering a UD Action
Plaintiff and Defendant: Settling
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Information for the
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This section tells you about things that EVERYONE in the lawsuit needs to
know and obey:
-
 What is a Case Management Conference?
- How do I settle my case without a trial?
- Costs & waiver of costs
- How do I build my case?
- How to control your case – Law and Motion
- Summary Judgments
- What is a Case Management Conference?
A
case management conference is when both sides, the lawyers and the
judge meet to talk about how to handle the case.
There are some things you have to do for this meeting:
- File a “Case Management Statement”:
California Rule of Court 3.725
says every
party has to
file this form at least 15 days before the first Case Management
Conference.
- Meet and Talk:
California Rule of Court 3.724 says you have to talk to the other side
before the case management conference about how you want to handle the
case, and what you want to settle the case before
trial.
- Go to the Conference:
Both sides have go to the Case Management Conferences (CMCs). Or, your
lawyer can go for you.
If a
Plaintiff doesn’t go to the meeting, the
Court can put the case on
a
dismissal calendar. The Plaintiff has to explain why they didn’t go.
If you don’t go, you run the risk that the Court will decide against
you. You might not be able to change these decisions later on.
What Court Orders can I expect?
- Limited Civil Cases: (worth up to $25,000)
The Case Manager Judge will ask if everyone has filed their papers on
time, and if you’ve tried to settle the case.
You can ask to have an Early Settlement Conference
(see the Alternative Dispute
Resolution
[ADR] section of this website) if you agree
that it can help you solve your problem.
Usually, the court will give you your trial date at your first Case
Management Conference
appearance.
- Unlimited Civil Case: (worth more than $25,000)
The Case Manager Judges will ask if everyone has filed their papers on
time, and if you’ve tried to settle the case.
For most cases, you’ll have to try an Alternative Dispute Resolution (ADR)
to solve the problem without going to court. The court will not give you
a trial date at your first Case Management Conference. You have to use
ADR to try to settle your case before you can get a trial date.
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- How do I settle my case without a trial?
- Limited Civil Cases:
A limited civil case is a case worth up to $25,000.00. You can ask for
an Early Settlement Conference if you and the other side agree that it
can help solve the problem.
- Unlimited:
An Unlimited civil case is worth more than $25,000.00. Usually, both
sides must try ADR to solve the problem before going to trial.
Local
Court Civil Rule 1E describes the Court’s rules about trying to
settle cases before going to trial.
- Alternative Dispute Resolution:
Try Neutral Evaluation, Mediation or Judicial Arbitration. These are
kinds of Alternative Dispute Resolution (ADR). They can help you solve
your dispute without going to court.
Go to the Court’s
ADR page.
- Settlement Conference
Statement:
To find out more about settlement conferences, go to the Court’s
ADR page.
- Costs & waiver of costs:
You will have to pay some costs and expenses.
These can be:
You can get a
Waiver so you don’t have to pay these costs. But, you
must be low-income to qualify.
Look at
California
Rules of Court 3.50 - 3.62 to find out if you qualify.
To learn more about cost or fee waivers, see California Civil Practice,
Procedure, West Group. You can find this in the law library.
- How do I build my case?
Discovery:
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To get ready for trial, collect the information you want to give the
Court to help prove your case or disprove the other person’s case. You
can collect information yourself or hire a private investigator.
You can also get a lot of information for free or low-cost. Government
agencies can also give you information. For example:
- The county assessor’s office has information about real estate,
- The public library has annual statements and information about the
officers and directors of a company.
- Weather bureaus have weather records to show the weather at a certain
place and time
You can investigate your case in many ways:
- You can take pictures of an accident scene, or damaged property like a
car.
- You can interview witnesses
and write down or tape record their statements (if they give you
permission).
- You can also take measurements of things and distances at the scene.
When you can’t get information some other way, you have to work with the
other person to give each other the information you want.
For example, you can ask the other party to give you copies of things
like letters or company records. Or, you can ask them to answer
questions in writing. These questions are called "interrogatories."
You can also make an appointment to ask and answer questions in person.
This is called a "deposition". You can make other people, like
witnesses, answer questions and give you papers and records.
All of these things are different kinds of evidence. The process of
gathering evidence is called "discovery".
The rules for discovery are in the Civil Discovery Act of 1986, in the
Code of Civil Procedure starting at
section §2016.
Forms of discovery
The main kinds of discovery are:
- Oral Depositions
- Depositions by written questions
- Interrogatories
- Demands to look at papers, things or places
- Physical or mental examinations of a person
- Requests for Admission of fact, or opinion, or application of law to
fact, or Authenticity of Document
- Sharing information about expert witnesses, and the expected
testimony
There are other kinds of discovery, too. For example, there is
something called a "demand for a bill of particulars". You use this to
find out about a claim that asks for damages because of a contract.
Note: The Code of Civil Procedure also lets you ask for
something called a “Request for Statement of
Damages”. If someone has asked for damages without saying how much
money they’re asking for, this makes them say exactly how much they want.
Discovery has very strict rules. If you don’t follow them, you may not be
able to use your evidence in court.
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Learn about these rules in the Santa Clara County Law Library. See:
Discovery lets the plaintiff and
defendant share information, as long as it is not “privileged” or
protected. That way, when you go to trial, you’ll know what the
evidence is. This helps you present you case better. It also
encourages you to settle because you can see the strengths and weaknesses
of the other person’s case.
Warning: Formal discovery can be very hard and sometimes expensive.
For example, for a deposition, the person who asks for the deposition has
to:
- Pay to have a certified shorthand reporter write down what
everyone says,
- Give proper
notice to the person being questioned or "deposed",
- Arrange for a place to have the deposition, and
- Be ready to ask the person (called the “deponent”)
questions, or hire a lawyer to do these things.
If someone doesn’t follow the discovery rules, by not responding to
what the other person asks for in the right way, or by trying to take
improper discovery, the Court may discipline or "sanction"
them.
Sometimes, the
sanctions are serious. It can be a fine, or an order that forces you to
hand over a document or admit to something on the record. Only use
discovery procedures when you really need to. And only when you really
understand and can follow all the rules.
If you think the other party broke a rule of discovery,
file a "motion" with the Court to let them know.
For example, if you object to a deposition notice or
subpoena, you can ask the Court for an
order to cancel or "quash" it. This will automatically stop the
deposition until the Court hears the motion.
Good Faith Showing:
For all motions that ask the court to enforce discovery rules, both sides
have to show they made a reasonable and "good faith" effort to settle the
discovery problem. If the Court decides that someone made the motion
without really trying to settle (in "bad faith"), it will discipline that
person. Make sure you make a real effort to follow the discovery rules.
Limited Economic Litigation Act:
This law is in the
California Code of Civil
Procedure (or "CCP") section 90 to 100. It applies to
limited
jurisdiction cases. It’s not for small claims cases (See
CCP 116.110)
or unlawful detainer
actions (See
CCP
1159 to 1179a). top of page
↑
This law gives you less time for discovery and adds some requirements for
limited jurisdiction cases. It only let you use some kinds of papers, like
complaints and answers. And, discovery is more restricted.
The sides have to tell each other who their witnesses are and what
evidence they want to bring to trial. If they don’t tell each other ahead
of time, they won’t be allowed to call that witness or bring that evidence
to the judge or jury. There are some exceptions, but it applies to most
witnesses and evidence.
See
CCP section 90 to 100 to learn more.
Subpoenas, forms and availability:
A Subpoena is a written notice from one person involved in a lawsuit
that says what a witness has to do. The subpoena can ask the witness to go
to a deposition or to court to testify.
There are 8 types of subpoenas. Make sure you get the right one for your
case.
Look for the subpoena form as stores that sell legal forms or at the
State
Court site, where there are forms such as this
Civil subpoena form. Fill out the correct
form and ask someone you know, a process server, or law enforcement to
personally “serve” a copy of the subpoena on the person. You cannot serve
the subpoena yourself. Bring the original subpoena and proof of service
with you on the date of the court hearing.
- How to control your case -- Law and Motion:
What is a "Motion"?
Motions are written documents that ask the Court to make orders. Motions
can come before and after the trial. .
What types of motions are there?
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For example:
Pretrial Motions:
- Demurrer to the
pleadings
- Motion to quash
summons
- Motion to strike pleadings
- Motion to transfer case to another Court
- Motion for a restraining order
or injunction
- Motion for Writ of Attachment
- Motion to continue (postpone) trial
- Motion to compel discovery
- Motion for summary
judgment (See Summary judgment)
Trial Motions: See the Hearing of Motions section,
below.
Post-trial Motions: These are motions made after
the trial is over, like:
- Motion for new trial
- Motion to tax costs
- Motion to amend judgment
How do I file a motion?
In general, you must serve the other party, or their lawyer and file a
copy of your motion with the court clerk.
The California Rules of Court say how you must write your motions and what
they must say.
Motions ask the court for orders that can change the case in very
important ways. So, if you get served with a motion, answer quickly and
properly. And file and serve your
response on the other person.
You can usually serve motions on the other party, or their lawyer, by
mail. But you can also use in person service to the other person’s lawyer,
or to the other party’s house if they don’t have a lawyer.
When you are served by mail or in person, you get a copy of the motion.
The original motion is filed with the Court with a proof of service form.
Where can I get motion forms?
Look for information and forms for motions at the
Law Library in these
publications:
Court Administration and Special Rules:
The Law and Motion Department is in the clerk’s office on the first floor
of the
Superior Court Building in downtown San Jose.
The clerks in the department can answer your questions about how to file
your papers properly. top of page
↑
Note: They can’t tell you what to say in your papers, or give
you advice about problems in your papers. Their job is to make sure
motions get on the calendar and that you meet the minimum requirements.
Motions can be formal, where you have to serve the other person and it
gets put on the calendar. Or they can be informal, like an informal
meeting with the judge. This is called an ex parte
motion.
Formal Motion:
There are 3 parts to a formal motion:
- Notice,
- Declaration of Facts, and the
- Memorandum of Points and Authorities.
You can find samples of these papers in California Forms of Pleading and
Practice, at the Law Library. This book can help you fill out the right
forms to file or respond to a motion.
A response to a motion has 2 parts:
- Declaration of Facts, and
- Memorandum of Points and Authorities.
Remember: You have to attach a proof of service form to the motion and the
response to a motion. This shows that the paper was mailed or delivered to
the other person on time.
There are special things to remember about formal motions and responses:
Ex Parte Procedures:
An ex parte motion is when 1 side gets to meet with the judge without the
other side there. This can be to ask for an order until, or before the
hearing.
For example, if you don’t want to file a motion at least 15 days before
trial, you can ask the court for an Order Shortening Time For Service of
Notice of Motion. This means you can have your motion hearing before the
15 days are up.
You can make your ex parte applications every morning between 8:15 and
9:00 AM.
You have to tell the other person the date and time you’re going to give
the judge your application. This is called informal notice. You have to
try to do it when the other person can be there. If they won’t go, say in
a declaration of facts that you gave the other side notice and they didn’t
want to come.
- Kinds of ex parte motions:
Here are some examples of ex parte applications:
- Application for a temporary restraining order: This is a court order
that stops someone from doing something
- Motion to "quash" a subpoena: This cancels a subpoena.
- Motion for order shortening time to serve a motion: This is a court
order that gives you more time to serve the other person.
- Motion for extension of time to file responsive pleading: This gives you
more time to file your response.
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↑ Even though you have to ask the judge in writing, Ex-parte motions are
different from motions with a formal hearing. You don’t have to file a
proof of service. Your declaration of informal notice is usually enough.
- Where and how can I file an Ex-parte motion?
If you have all your papers, the law and motion clerk will send you to the
right courtroom. You’ll meet with the judge in chambers when he or she is
free. The judge won’t let you to talk about anything that’s not in the ex-parte
motion.
If the other person goes to oppose what you’re asking for, they don’t have
to file papers. But, they can if they want to. Or, they can give their
reasons for opposing the motion or suggest something else.
Note: For ex parte motions, you don’t file your papers with the clerk
ahead of time. You give them to the court on the day you ask to see the
judge. Then, someone takes them to the judge’s clerk.
Your Motions Hearing:
Scheduling the date:
After you have a hearing date, you have to try to agree to a date when
both of you can go before you can set a time to hear the motion with the
law and motion clerk. If it’s ok with the court, you’ll have the hearing
when you agreed.
In general, if you have a motion with formal notice, the judge will read
each side’s papers 1-2 days before the hearing. That way he or she will
already know about the motion. Be ready to:
(1) Tell the Court you can give the motion to the court without seeing the
judge in person, or
(2) Tell the judge your side. If the Judge has questions, answer politely.
Note: The Judge will be polite to you. He or she expects you to be polite.
Always act in a business-like way in the courtroom. The Judge knows you
have strong feelings. But, be respectful.
Law and Motion Hints:
- Call Law and Motion to find out what days you can set a
motion for hearing and to save your date. The phone number is in the
civil section of the court's phone list, under Law and
Motion. )When you call the main civil number, list to the
recording and pick the option for Law and Motion.):
- Use a 2-hole file punch to make holes in the TOP of your pleadings.
- Follow
California Rule of Court, Rule 3.1110. This means you have to put
your hearing dates under the caption of every pleading.
- When you go to confirm letters about continuances and other things that
aren’t on the calendar, say the hearing date, case name, and action
number.
- When you aren’t going to use a hearing date, call the
Law and Motion Calendar
Department (number on the
court's phone list) to take it off the calendar so someone else can use it. This
will make some room in the busy calendar. The court won’t have to call you
when your papers aren’t there. You can only get a continuance by ex parte
order.
- Make sure you write the right case number on your papers. If you write
the wrong case numbers, you confuse the staff and the other person’s
lawyer. Your papers can be put in the wrong file.
- Call to let the court know if you are going to file a joinder or
cross-motions. Don’t just send them in the mail. Sometimes the court
doesn’t get the forms in time for the hearing.
- Write the hearing date on your proofs of service. That way they’ll get
to the staff in time for your hearing.
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- Follow the
California Rules of Court, Rule 3.1320. You have to send a
Notice of hearing with your demurrer.
- When you want to change a motion or file a cross-motion, attach a copy
of it to the motion.
CCP 473 says that you have to do this. After the
judge grants the motion, file the original pleading with the Court. The
clerk won’t file stamp the copy.
- Don’t set a date for one motion and then try to get the judge to hear
others on the same date. Tell the staff first that you’re adding motions.
That way they can schedule that time in the computer. If you don’t tell
the staff about the extra motions, they may not have enough time to hear
the other motions that day.
- If you decide not to file your pleadings after you set a date, tell the
staff. This will keep them from wasting time looking for pleadings that
aren’t there.
- File pleadings on time. If you can’t, you’ll need an ex parte order to
file them late.
- When a Judge makes an order on a motion and sends you to the Law and
Motion Department, go immediately. You have to finish the process with
staff. That way the order will be on the record.
- If you get or change a hearing date, tell the Calendar staff. They have
to know so they can reserve the time on the calendar.
- Learn these California Rules of Court: CRC 2.100
- 2.119, 3.113, 3.1300.
See
Pretrial and Trial Rules.
- Summary Judgments:
Summary judgment motions are not like other motions because:
- If the judge grants your summary judgment motion, the
case is over.
- If the judge grants a summary adjudication, it ends some
claims or defenses.
- Summary judgment motions are usually more complicated
and technical than other motions.
We can’t tell you everything about summary judgment here. So, this page
will give you a general idea and tell you where you can go to get more
information.
What is a summary judgment motion?
This is a very complicated motion you give to the court in writing BEFORE
TRIAL. If you file a summary judgment motion, you ask the judge to enter a
judgment and end the case without a trial. You ask the judge to make a
decision based on the papers. And, to end the case because the case has no
merit or there is no
defense.
If you meet all of the legal requirements for this motion, and you prove
everything you have to, the judge will grant your motion. Your case will
be over. The person who lost will have to pay the costs. top of page
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What is a motion for summary adjudication?
This motion is like a summary judgment motion. But instead of asking the
court to end the whole case, you ask the court to drop some parts of the
case without a trial. These can be claims or defenses.
You can make this motion with a motion for summary judgment. If you don’t
get the full summary judgment, at least part of the case will be over. Or,
it can be a whole separate motion. Even if the judge grants your motion
for summary adjudication, your case won’t be over.
These motions can end someone’s chances of being heard at trial. So, there
are very strict technical rules. There’s also a special standard that the
court uses before it can grant a summary judgment or summary adjudication.
The rules and special standards are in
Code of Civil Procedure § 437c.
To get a summary judgment, you have to show that "that there is no triable
issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." That means that there’s not enough evidence
to have a trial.
You and the other side both have to use affidavits or declarations from
people with personal knowledge of the facts. Here are the main parts that
you have to include:
- The Notice and Motion or Opposition
- Table of Contents and Table of Authorities Cited
- Separate Statement of Undisputed Facts
- Memorandum of Points and Authorities (legal points)
- Supporting Declaration or Declarations (factual support)
TIP: The Separate Statement of Undisputed Facts is a very
important. Everyone in the case has to file one. The judge will look at
the different statements to decide what issues should go to trial. In your
“Separate Statement of Undisputed Facts”, include:
(1) The facts that the other person agrees are true, and
(2) The facts you are fighting over, even though you think you shouldn’t
be.
You can get help from different reference books in the
County Law Library.
They can tell you how to prepare or respond to a motion like this. These
are some of the books:
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Make sure to check the State and local rules of court
for any special steps you may have to take in your case.
TIP: If you are not a lawyer, it will be very hard for you to make
or defend a summary judgment motion. Try to get help from an experienced
trial lawyer.
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