Week 8: Anatomy of a Transaction & Law & Motion Practice PART I:ANATOMY OF A TRANSACTION Professor Mitch Federer ‘09 PART II:LAW & MOTION PRACTICE Professor

Week 8: Anatomy of a Transaction &Law & Motion Practice

PART I: ANATOMY OF A TRANSACTION Professor Mitch Federer ‘09

PART II: LAW & MOTION PRACTICE

Professor Steve Kester ‘78

PART II: LAW & MOTION– INITIAL PLEADING PHASE & DISPOSITIVE MOTIONS

Professor Steve Kester ’78Archer Norris, PLC

DISPOSITIVE MOTIONS

Motions for Summary Judgment (MSJ)

and Summary Adjudication (MSA)(Code of Civil Procedure § 437c)

• Dispositive motions used to dispose of an entire Action, Cause of Action, Defense or claim for Damages.

• Basis is there is no merit to the Action, Cause of Action, Defense or claim for Damages.

• MSJ is used to dispose of an entire Action.

• MSA is used to dispose of one or more individual Causes of Action within an Action. It can also be used to attack one or more Affirmative Defenses or claims for Damages.

• MSA may be made by itself or as an alternative to a MSJ.



Component parts include:

– Notice of Motion

– Memorandum of Points and Authorities

– Supporting evidence in the nature of declarations, deposition testimony, documents, responses to interrogatories, requests for admissions, etc.

– Separate Statement of Undisputed Material Facts

– [Proposed] Order

– Proof of Service



Timing:

–May be brought any time after 60 days have elapsed after the general appearance.

– Shall be heard more than 30 days before the trial date, unless the court for good cause orders otherwise.

– Requires 75 days notice before the time appointed for the hearing.



Practice Notes:

– Summary Judgment is often difficult to obtain because there is almost always some viable argument that a “triable issue of material fact” exists. For Summary Judgment to be granted, there must be “no triable issue of material fact” as to the entire Action.

– Summary Adjudication is somewhat more manageable/obtainable from a defense perspective because many plaintiff attorneys often overreach in pleading causes of action in the complaint.



– Service by U.S. Mail increases notice time. 5 days for service inside California, 10 days for service inside the USA, but outside California, and 20 days for service outside the USA.

–Many courts set trial dates within 12-18 months of the filing of a complaint. This means that all parties must move fairly expeditiously to complete discovery, if they anticipate bringing a MSJ or MSA. Both motions take time to properly prepare and solid evidence to be successful.



Reversal rate on MSJs is fairly high, perhaps as high as 50%. Appellate court reviews trial court decision de novo. That means the motion is heard all over again by the Court of Appeal.

Motions In Limine• Motion used before a jury trial has started to try to exclude or limit use of certain evidence at trial, usually because of a lack of foundation, the evidence is speculative, or its probative value is outweighed by undue prejudice.

• Based on case law.

• Generally, must be filed on regular notice so as to be heard at the date and time of the Final Status Conference. Check Local and Department Rules.

Motions In Limine• Almost always combined with a request for

Evidence Code §402 hearing outside the presence of the jury for a determination of foundation before any evidence on the matter sought to be excluded or limited is submitted to the jury.

• Component parts include:– Notice of Motion– Memorandum of Points and Authorities– Supporting declarations– Exhibits– Proof of Service

Motions In Limine• Practice Note: Often the judge will make a ruling that is more tentative than final at the hearing before trial. This allows the issue, for better or worse, to be revisited at the time potential introduction of the subject evidence comes into play. The practical effect of this is that the party against whom the ruling is made is not allowed to mention the evidence in opening statement or while questioning witnesses until such time as the judge rules differently.

Documents

Week 8: Anatomy of a Transaction & Law & Motion Practice PART I:ANATOMY OF A TRANSACTION Professor Mitch Federer ‘09 PART II:LAW & MOTION PRACTICE Professor