Wagstaffe / CA CIV PRO / Fall 2015
1. _Prelawsuit Notice
i. Some cases require giving notice as a pre-req to filing (usually due to policy)
1. Most cases don’t require
2. Need to plead in complaint that you satisfied notice requirement
i. Cases where the legislature doesn’t want litigation to be the first step
ii. Give D time to remedy
iii. Tort reform
iv. Deter frivolous lawsuits
c. Types of Cases Required:
i. Claims Against the Government (GC 912.4, 945.4)
1. Suing the government
2. Tort claim statute:
a. Time limit from the accrual of the claim (6 months to file a claim in writing)
b. Once you file the claim the government has a right to deny the claim
c. This is designed to put the government on notice of a claim
d. 6 months after denial of claim you can file lawsuit
3. Add City of Stockton v. Superior Court (2007):
ii. Claims Against an Estate (PC 9002)
1. Need to file a claim with the estate first
2. 4 months after letters issued to executor you have to give pre-lawsuit notice to the estate of your intent to bring a claim against the estate, if rejected you have 3 months to bring a claim to the probate court
iii. Medical Malpractice (MICRA) (CCP 364)
1. In advance of suing doctors (or health care professionals) must give 90 days notice of intent to sue
2. Give copy to CA Med Board
3. Failure to do this voids the claim
4. File Certificate of Merit:
a. Certifies that you talked to a pro and pro said there is basis to claim
b. Certificate also required in cases vs architects and engineers (CCP 411.35)
iv. CLRA – Consumer Legal Remedies Act
1. 30 days notice to seller of their unfair/deceptive practice (CC 1750, 1782)
2. You have to give notice to seller/∆ of the supposed defect at least 30 days prior to sue. This gives opportunity to cure the defect. If they don’t cure you have the right to sue.
v. Slander/Libel (CC 48a)
1. “retraction/correction statute” that applies to:
a. libel v newspapers (libel = must be false and defamatory)
b. slander v radio/television broadcast
a. Written demand to publisher/broadcaster 20 days post-publication
i. Law presumes you know about it if it’s available to the public
b. Opportunity for full & fair correction in a substantially as conspicuous location as the alleged defamatory material w/in 21 days
3. If no demand made OR there is a demand and correction made:
a. No general damages
b. No punitive damages
c. Special damages survive (economic loss)
4. How do you tell if something’s a newspaper?
a. It has to be republishes w/in 21 day time period or else a valid retraction could never be published
b. Ambiguous à look to purpose:
i. Newspapers have to publish w/in quick deadlines v magazines so the legislature wants to protect them more
ii. National Enquirer is not a newspaper under this statute
vi. Construction Defect
1. Only IF brought by homeowner’s association against contractor
2. 180 days notice (CCP 1375)
3. Must go through ADR first
vii. CC&R's – Covenants & Restrictions (CCP 1369.510)
1. Against Homeowner’s Association
2. Must go through ADR first
viii. Mandatory Fee Arbitration (BP 6200)
1. Right to go through non-binding arbitration (through bar assoc.) whether or not its in the fee agreement
2. If client wants to go to court, he can waive the arbitration rights
2. _Prior Court Order Required
a. Some cases require getting a prior court order before filing
i. Prior Court Order – you first show court you have reasonable probability of success
i. Barriers protect public policy, prevent frivolous claims
c. Type of Cases Required:
i. Punitive damages against health care providers or religious institutions (CCP 425.13 & .14)
1. If you want to sue a health care provider for punitive damages you must first get a court order after making a prima facie showing that you have a valid claim
2. NOTE: you do not need to show that you would win, but that a reasonable jury would rule in your favor
ii. Punitive Damages v. Religious Orgs (CCP 425.14)
1. Need court order to bring punitive damages against religious org
2. Make motion in court and show substantial probability that can make prima facie case
iii. Claims against attorneys for conspiracy (CC 1714.10)
1. Claims that attorney conspired w/ their client to commit act
2. Why protect this?
a. This can create a conflict of interest between an opposing client and their opposing attorney – may be used as a tactic
iv. Negligence claims against voluntary directors/officers of nonprofit (CCP 425.15)
1. Must show court prima facie case for individual negligence (applies to volunteer or director of nonprofit too)
2. Rationale: want to encourage people to work for non-profits
v. Childhood sexual abuse (CCP 340.1)
1. File suit against a Doe
2. You must have a certificate of merit saying you have a recovered memory
3. Go to court in camera w/ certificate of merit and then Doe is changed to D's name
vi. Vexatious litigants (CCP 391)
1. Someone keeps filing over and over again, can be declared vexatious
2. Then need permission in advance (prima facie case to judge) to file another claim
a. General damages – emotional distress, loss of reputation
b. Special damages – lost actual wages, out of pocket expenses, past, present, future.
c. Punitive damages/exemplary damages – higher level of damages, punish the defendant, make and example of someone for having engaged in such atrocious behavior.
4. _Libel Statute (CCC 48a)
a. Libel in newspaper, slander by radio broadcast/TV, not really pre-lawsuit notice, more like prerequisite for certain kinds of damages
i. Can defame someone by implication
b. Who: Libel/slander, newspapers, TV/radio
c. What: Written demand sent to publisher/broadcaster IDing stments claimed to be libelous and demanding that they be corrected
d. When: Demand—20 days after becoming aware of libel; correct—3 weeks
i. If publication comes out every month, definitely NOT a newspaper & 48(a) does not apply
e. Where/how: Same location; full and fair; damage limits (eliminates most defamation suits – if P doesn’t do this prior to suing, not going to get much damages for defamation) otherwise can have general, special, and exemplary (punitive) damages
f. Rationale: Give them chance to fix/correct libel; want to protect news bc people need it in a timely manner; better than lawsuit
g. Case: Field Research Corp v. Superior Court (1969): not TV or radio defamation, but was done in paper by someone who wrote a letter
a. Forum state
c. Cause of action
a. Step #1 – Can we show PJ over the D?
i. Long arm statute?
ii. Traditional basis?
iii. General Jdxn?
iv. Minimum contacts?
1. (1) General
2. (2) Specific/limited
b. Step #2 – Application to specific types of suits
i. Intentional torts, product liability, etc.
c. Step #3 – Procedure
i. General appearance = personal jurisdiction
ii. Preserving jurisdictional attack (motion to quash)
b. Step #1- Can we show personal jurisdiction over D? (Baseball analogy)
i. First Base = Long Arm Statute
1. Does the LAS have a limiting principle?
a. CCP 410.10 – “A court of this state may exercise jdxn on any basis not inconsistent with the Constitution of this state or of the United states.”
i. When, if ever, can state reach out-of-state to sue out-of-state D?
ii. Never going to have problem with basis if in-state jdxn.
b. Limiting Principle à Constitution sets outer bounds, some states elect to have more narrow access to courts.
i. In CA, whatever doesn’t violate the Constitution is ok
ii. IN CA, WE’LL ALWAYS ROUND FIRST BASE AND HEAD TO SECOND BASE.
iii. Other states place limits that are less than the Constitution might allow
1. i.e. in NY, tort must be committed in NY in order for NY to have jdxn
ii. Second Base = Traditional Basis of Jdxn – Can-Do-People
1. If K is enforceable, then consent to jdxn is enforceable
2. Examples: Choice of Law Provision, Venue/Forum Selection Clause, Consent to Jdxn Clause
3. Can attack contract using regular contract principles