Summary of Mandatory e-Filing in California Superior Courts

Court Files

The California counties which, as of December 2015, mandate some type of e-Filing include:

Contra Costa. E-Filing is now mandatory on most Complex Litigation cases.

Orange. As of January 1, 2013, Orange County Superior Court mandates e-Filing for all documents filed in limited, unlimited and complex civil actions. (See CCP § 1010.6 and Local Rule 352.) On September 3, 2013, Orange County Superior Court mandated that all documents (with some exceptions) for Probate and Mental Health must be e-Filed. (See Local Rule 601.01.)

San Diego. San Diego County Superior Court mandates e-Filing for Provisionally Complex cases, such as Antitrust, Construction Defect, Mass Tort, Environmental/Toxic Tort and Securities Litigation Cases, class actions, and consolidated and coordinated actions where all cases involved are imaged cases. For mandated e-Filing cases, San Diego Superior Court has designated One Legal as the court-approved e-Filing vendor.

San Francisco. On December 8, 2014, San Francisco Superior Court made e-Filing mandatory for all General Civil case types, Asbestos, and Complex Litigation except Limited Unlawful Detainer and Small Claims cases. On November 2, 2015, San Francisco Superior Court extended mandatory e-Filing to all Probate Trust cases. E-Filing rules are contained in San Francisco Superior Court Local Rule 2.10. E-Filing Probate rules may be found in local rule 14.100. Under Local Rule 14.100 (e), mandatory E-Service does not apply to Probate filings. Case initiating documents (complaints) must still be physically filed in the San Francisco Court Clerk’s Office.

San Luis Obispo. Effective January 1, 2016, e-Filing will be mandatory in San Luis Obispo Superior Court for all limited civil and all probate case types. (See also Local Rules 31.01-31.05.)

Santa Clara. E-Filing is mandatory for all actions provisionally designated as complex pursuant to CRC 3.400(c), and all actions classified by the Complex Litigation Judge as Complex Litigation. See Local Civil Rule 16.

Note that in all California superior courts, self-represented litigants are exempt from mandatory e-FilingCalifornia Rule of Court, Rule 2.253 subd. (b)(2). Furthermore, parties facing undue hardship or significant prejudice may apply for an exemption from any mandatory e-Filing. California Rule of Court, Rule 2.253 subd. (b)(4). California Rules of Court 2.250 through 2.261 address e-filing and e-service.

Note that this blog post did not address permissive e-Filing, as many Superior Courts permit, but do not necessarily mandate e-Filing.

Caution: The e-Filing landscape is rapidly changing, as many Superior Courts in California are planning to accept or mandate e-Filing. You should always research the most current rules. An experienced freelance attorney can help you with the latest e-Filing requirements.

Failing to screen complaints for SLAPPable matter: an expensive mistake

SLAPP!

In the excitement to “tell their story” in a complaint, pro se litigants and even attorneys often fail to screen for SLAPPable matter in a complaint, which can lead to very expensive mandatory attorneys’ fees and costs if a defendant prevails on an anti-SLAPP motion aka special motion to strike under Code of Civil Procedure § 425.16.

CCP § 425.16, subd. (b)(1) provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”

Once an anti-SLAPP motion is filed, the complaint cannot be amended (Simmons v. Allstate (2001) 92 Cal.App.4th 1068, 1073-1074), nor can the action be dismissed and re-filed. (Liu v. Moore (1999) 69 Cal.App.4th 745, 749-752.) Once a complaint is filed and served, Plaintiff is stuck with it for anti-SLAPP purposes. Defendants prevailing on a SLAPP motion (including any subsequent SLAPP appeal) are entitled to a mandatory award of reasonable attorney’s fees and costs. But a plaintiff who successfully opposes an anti-SLAPP motion is not entitled to any attorney’s fees or costs, unless it can show that the motion was frivolous.

To illustrate, consider a hypothetical situation involving online/cyber defamation:

A breach of contract dispute arose between two companies specializing in online marketing. Defendant company’s president failed to file a timely responsive pleading. Plaintiff took the president’s default, which was never vacated because the case was stayed and transferred to a different state under a forum selection clause. Plaintiff then created multiple web pages showing the case docket and highlighting the entry of default against the Defendant company’s president. Plaintiff even registered domain names bearing Defendant company’s name in order to further direct the public to information about the parties’ lawsuit. Plaintiff also used its SEO and online marketing skills to ensure that anyone searching online for Defendant company or its president would find the web pages created by Plaintiff showcasing the lawsuit and the president’s default. Clearly, Plaintiff is trying to deter anyone from hiring or contracting with Defendant company.

Defendant wants to file a lawsuit to force Plaintiff to remove the web pages. But the webpages essentially draw public attention to the lawsuit’s docket, which is a public record. The complaint filed to force the removal of the websites is a potential minefield of SLAPPable matter.

In Collier v. Harris (August 5, 2015) _ Cal.App.4th _ , 2015 WL 5121082, a case with similar facts, Defendant registered plaintiff’s name, and the name of an advocacy group she formed as domain names, and then redirected all Internet users who visited those Web sites to the Web sites for the school board candidates defendant supported. Plaintiff sued, alleging defendant registered the domain names and illegally used them to mislead the public into thinking plaintiff supported defendant’s candidates. The Court of Appeal found that registering the domain names of a school board candidate and redirecting Internet users to the other Web sites assisted defendant in exercising his free speech rights because those acts provided him with additional forums to reach the public with information about the school board candidates. See also the unpublished case of Ocean’s Eleven Casino v. Anders, 2014 WL 1864487 (Cal. Ct. App. May 9, 2014), in which the Court of Appeal held that a gripe website qualified as a public forum. So even when conduct seems clearly “wrong”, such as registering domain names in your company’s name, there still exists a great risk of including SLAPPable matter in a complaint.

Here is a list of common causes of action that often indicate the presence of potentially SLAPPable matter:

  • Defamation
  • False light
  • Invasion of privacy
  • Malicious prosecution or abuse of process
  • Intentional or negligent infliction of emotional distress regarding statements made to the plaintiff (e.g., verbal abuse)
  • Interference with economic advantage

However, even a simple breach of contract or declaratory relief action may be a SLAPP suit. (See, e.g., Navellier v. Sletten (2002) 29 Cal.4th 82; Equilon Enterprises LLP v. Consumer Cause, Inc. (2002) 29 Cal.4th 53.)

Therefore it is critical that plaintiffs identify any and all anti-SLAPP issues prior to filing the complaint. To avoid malpractice suits, Plaintiffs’ attorneys should inform their clients of all potential SLAPPable matter in the complaint, advise the client of the risks and expenses associated with anti-SLAPP motions, and advise that supporting evidence needs to be produced up front.

If a defendant does file an anti-SLAPP motion, plaintiff must take it extremely seriously and be prepared to conduct discovery in order to marshal evidence that: (1) the claims do not arise from protected activity; (2) plaintiff has a probability of prevailing on its claims; (3) at minimum, that plaintiff can raise a triable issue of fact as to each of its claims. (See CCP § 425.16, subd. (g).)

An experienced freelance attorney can help you draft or screen your complaint for SLAPPable matter. Losing an anti-SLAPP motion subjects the plaintiff to mandatory attorney fees and costs and exposes plaintiff’s attorney to a potential malpractice suit.

Federal Court: Does Twombly/Iqbal apply to affirmative defenses?

Federal Courtroom

A court may strike affirmative defenses under Federal Rule of Civil Procedure 12(f) if they present an “insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter.” The question is: can the Iqbal/Twombly pleading standards be applied to strike affirmative defenses in California district courts?

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007) the Supreme Court raised the bar for federal court plaintiffs by clarifying the standard for deciding motions to dismiss for failure to state a claim. Previously, a claim would be dismissed only if it appeared “beyond doubt that the plaintiff [could] prove no set of facts in support of his claim which would entitle him to relief.” Id. at 1968. Twombly rejected this standard in favor of a rule requiring a complaint to state “enough facts to state a claim to relief that is plausible”—not merely “conceivable.” Id. at 1974. A “plausible” claim under Twombly requires stating “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence [of the alleged wrongdoing].” Id. at 1965-66. In Ashcroft v. Iqbal, 556 U.S. 662, 684, 129 S. Ct. 1937, 1953 (2009), the Supreme Court clarified that Twombly applied to all civil complaints, and not just antitrust suits.

The Ninth Circuit has not squarely ruled on the issue of whether Twombly/Iqbal applies to affirmative defenses and district courts in the Ninth Circuit are split on the issue. Compare, e.g., Barnes v. AT&T Pension Benefit Plan-Nonbargained Program, 718 F.Supp.2d 1167, 1172 (N.D. Cal. 2010)(holding the heightened pleading standard Twombly/Iqbal applies to affirmative defenses); Kohler v. Island Rests., LP, 280 F.R.D. 560 (S.D. Cal. Feb. 16, 2012)(declining to extend Twombly/Iqbal pleading standards to affirmative defenses); Garber v. Mohammadi, No. CV 10–7144–DDP (RNB), 2011 WL 2076341 (C.D. Cal. Jan. 19, 2011) (Twombly/Iqbal not applied); Burton v. Nationstar Mortg., LLC, No. CV-F-13-0307-LJO-GSA, 2013 WL 4736838 (E.D. Cal. Sept. 3, 2013)(Twombly/Iqbal not applied).

When California District Courts have applied Twombly/Iqbal to affirmative defenses, they have said that “[w]hile a defense need not include extensive factual allegations in order to give fair notice, bare statements reciting mere legal conclusions may not be sufficient.” Perez v. Gordon & Wong Law Grp., P.C., No. 11-3323, 2012 WL 1029425, at *8 (N.D. Cal. Mar. 26, 2012)(internal quotation marks omitted)). A defendant’s pleading of affirmative defenses must put a plaintiff on notice of the underlying factual bases of the defense. Perez, supra, 2012 WL 1029425, at *8 (internal quotation marks omitted).

However, even if your court does not apply Twombly/Iqbal to them, the affirmative defenses must still meet California’s traditional “fair notice” standard.

Plaintiff’s Lawyers Using Freelance Attorneys

Many plaintiffs’ lawyers shy away from or simply aren’t accustomed to using freelance attorneys because ultimate recovery is uncertain. Because freelance attorneys, typically compensated by the hour, must be paid regardless of ultimate recovery, contingency fee lawyers may see only risk. But there are many situations where hiring a freelance attorney makes sense and even creates advantages for the plaintiff’s attorney. 

Maybe you are a solo practitioner thinking of expanding into a new practice area, but you don’t have the time or full-time staff to evaluate the merits of a prospective new case. A specialized freelance attorney can give you a cost effective, concise evaluation of whether you should take the case on a contingency fee basis. This evaluation can include, in addition to applicable law, jury verdict research and opposing party and counsel research. By avoiding a fruitless case early on, you can save money and increase your knowledge of how to evaluate similarly situated prospective clients and cases in the future.

Or perhaps you need to build a library of form pleadings, motions, and briefs to use in the future. An experienced freelance attorney can create time-saving templates for complaints, motions to remand, and oppositions to demurrers that anticipate the most commonly used defense arguments. For example, if you’re getting into wrongful foreclosures, you’ll be facing removals to federal court at every turn. A freelance attorney can create a template motion to remand that takes into account the familiar arguments, which you can conveniently revise as needed.

Because plaintiffs’ bar attorneys are frequently opposite large defense firms with seemingly limitless resources, the contingency fee attorney is already at a disadvantage. You have a big case and know you’re going to get hit with countless discovery and pre-trial motions. You could work your one associate (and yourself) to death, or you can take a long-term view of management and bring on a freelance attorney to assist during busy periods to give you a much-needed temporary boost. In exchange for a high volume of work, you may be able to negotiate a reduced rate.

Major motions often present difficult issues for the smaller firm, especially if you are already spread too thin. If you receive an anti-SLAPP motion, motion for summary judgment or demurrer, possibly with no less than 30 cases cited, what are your options if you already have 5 depositions and two mediations scheduled between now and the opposition filing date? There are simply not enough hours in the day to give an important motion the attention it requires. You can hire a freelance attorney to give you a polished opposition ready for filing, or you can have your staff pull the major cases cited in the brief, create a first draft, and let an experienced freelance attorney revise and polish it. If it helps you defeat the motion and avoid settling for a nuisance sum, isn’t it worth it?

Many times small firms and solo practitioners must focus on a high-value case, but cannot neglect the professional duty to prosecute the smaller cases. Instead of letting them collect dust – an omission which might affect your professional reputation and create unhappy clients – you might consider spending a few hundred dollars to keep your cases moving.  In the long run, it might be less expensive than losing clients and/or your reputation.

Finally, nearly every lawyer encounters a possible appellate issue.  But should you file a writ? Or should you appeal the judgment? These are specialized questions with many considerations, including costs, burdens, relative merits and likelihood of success. You can handle it yourself and hope for the best, can co-counsel with another firm at a high hourly rate to handle the appeal, or you can bring in a much more budget-friendly freelance appellate attorney to help you weight the merits and handle the drafting.  This may be a worthwhile investment if it means you get another shot at settlement or trial.

There are many instances where bringing in outside help may seem costly and risky at first glance, but there are also significant risks in not doing so where there really is a need.  Freelance lawyers provide flexibility and cost-effective assistance to contingency lawyers so that you can get the best recovery for your clients.

The Statute of Limitations for Medical Malpractice Cases Can Be Tolled

The statute of limitations requires that a professional negligence claim against a healthcare provider (aka medical malpractice) be brought within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury. (Code Civ. Proc. § 340.5.) However, Code of Civil Procedure § 364, subd. (a) also provides that “[n]o action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.” Thus, it is critical to serve this Notice of Intent to Sue prior to filing suit.

A common situation occurs when the plaintiff serves the CCP § 364 notice of intent to sue within 90 days of the expiration of the one-year statute of limitations on a medical malpractice claim. What happens then? Well, CCP § 364, subd. (d) provides:

If the notice is served within 90 days of
the expiration of the applicable statute of
limitations, the time for the commencement
of the action shall be extended 90 days
from the service of the notice.

The California Supreme Court has held that the legislative purpose of section 364, subd. (d), is “best effectuated by construing section 364(d) as tolling the one-year statute of limitations when section 364 (a)’s ninety-day notice of intent to sue is served during, but not before, the last ninety days of the one-year limitations period. Because the statute of limitations is tolled for 90 days and not merely extended by 90 days from the date of service of the notice, this construction results in period of 1 year and 90 days in which to file the lawsuit.” (Woods v. Young (1991) 53 Cal.3d 315, 325.)

Thus, if a plaintiff serves her CCP § 364 Notice of Intent to Sue during the last 90 days before the expiration of the one-year statute of limitations, the plaintiff will have 1 year and 90 days from the date the statute of limitations begins to accrue to file her medical malpractice suit.

To illustrate, assume that the medical malpractice claim accrued on August 1, 2014. The one-year statute of limitations would ordinarily expire on August 1, 2015. On July 1, 2014, which is within the 90-day period prior to the one-year expiration of the SOL, plaintiff serves her CCP § 364 Notice of Intent to Sue on the healthcare provider defendant(s). Because plaintiff has served the Notice, she now has a total of 1 year and 90 days from the date the claim accrued on August 1, 2014, to file her lawsuit. Since one year and 90 days from August 1, 2014 is October 30, 2015, plaintiff must file her lawsuit on or before October 30, 2015.

Disclaimer: Note that laws are subject to change. Furthermore, the individual details of your case may affect your statute of limitations. The date that a claim “accrued” is often disputed, as well. It is best to have an experienced lawyer analyze your case. This blog post does not constitute legal advice.

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