Alameda County Superior Court
Civil Court Self Help

Information for the Plaintiff and Defendant

This section tells you about things that EVERYONE in the lawsuit needs to know and obey:

1. What is a Case Management Conference?
2. How do I settle my case without a trial?
3. Costs & waiver of costs
4. How do I build my case?
5. How to control your case – Law and Motion
6. Summary Judgments
    

1. What is a Case Management Conference?
   
   A case management conference is when parties, their 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 212(g) 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 212(f) says you have to talk to the other side before the case management conference about how you want to handle the case, and whether 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 the defendants do not go, they run the risk that the court will decide against them. You might not be able to change these decisions later on.

·         What Court Orders can I expect?

For most cases, you will have to try an Alternative Dispute Resolution (ADR) method to solve the problem without going to trial. 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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2. How do I settle my case without a trial? 
    
• Alternative Dispute Resolution:
  Try Neutral Evaluation, Mediation or Judicial Arbitration. These are methods of Alternative Dispute Resolution (ADR). They can help you solve your dispute early in the case before discovery expenses are incurred.  Go to the court’s ADR page for a list of qualified mediators.
   
• Settlement Conference:
  After discovery is complete, a judge will bring parties together one last time in an attempt to settle the case without the uncertainty of going to trial.

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3. Costs & waiver of costs:
   
   You will have to pay some costs and expenses.
   These can be:
    
• Filing fees,
• Process Server's fees,
• Motion filing fees, and
• Other fees.

If you are low-income, you may qualify for a waiver so you don’t have to pay these costs.  Look at California Rules of Court 985 (i) and 985 (j) 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.
 

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4. How do I build my case? 

Discovery:

To get ready for trial, you will have to collect all 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 cannot 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 do not follow them, you may not be able to use your evidence in court.

You can learn about these rules in the Alameda County Law Library. See: 

• California Civil Discovery Practice, CEB in 2 volumes
• California Forms of Pleading and Practice, See Discovery volume
• California Code of Civil Procedure § 1916 and following

Discovery lets the plaintiff and defendant share information, as long as it is not privileged or protected. That way at trial, both parties will know what the evidence is. This helps you present a better case. It also encourages you to settle because you can see the strengths and weaknesses of the other person’s case.

Formal discovery can be difficult and expensive. For example, a person who asks for a 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.

A sanction can 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, you may 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 may discipline that person.

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 is not for small claims cases (See CCP 116.110) or unlawful detainer actions (See CCP 1159 to 1179a).

This law gives you less time for discovery and adds some requirements for limited jurisdiction cases. It allows you to only file certain kinds of documents, and discovery is more restricted.

Both 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 many types of subpoenas. Make sure you get the right one for your case.

Look for the subpoena form at stores that sell legal forms or at the State Court site. Complete the correct form and ask someone you know or a process server 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.

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5. 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?
    
• Pre-trial,
• Trial, and
• Post-Trial Motions.

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

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 copies on the other parties or their lawyers and file the original 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. File and serve your response on the other person.

You can usually serve motions on the other parties or their lawyers by mail. But you can also use in personal 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:  

• California Forms of Pleading and Practice
• California Points and Authorities
• California Civil Practice, Separate sets for different kinds of cases
• Civil Procedure Before Trial (CEB - One Volume)
• California Rules of Court
• Code of Civil Procedure of California
• Link to Local Rules, Alameda County

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
• 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: 

• Proper Form:
  Every part has to be written in the right way. It has to follow the Rule of Court about how to file papers with the court.  See California Rules of Court, the Local Rules, Alameda County, and California Forms of Pleading and Practice.
   
• Penalty of Perjury:
  Any declaration you make about the facts of the case, you make under penalty of perjury. The person who signs the form has to say in the declaration that they personally know the facts are true, and they can testify to that.
   
• Declaration of Facts:
  This form should say all the facts you need, but only the ones you need to support what you’re asking for. This is usually a lot less than what you have to prove at trial.
   
• Legal Authority:
  The form called Memorandum of Points and Authorities has to describe every point that the party wants to make.  Then it has to explain how the law supports each point. This can be by referring to:
   

• Statutes
• Cases
• Legal writings

California Points and Authorities is a book at the Law Library that can help you get your papers together.

• The Memorandum of Points and Authorities ends with a conclusion. If you are the one who is asking the court for something, say what it is you want. If you’re opposing the request, say what decision you think the court should make.
   
• If you ask the court to do something, you will get a hearing date when you file your papers with the Law and Motion Department.
   
• You have to serve the other person and file all your papers with the court at least 21 days before the hearing.
  
  If you serve the court by mail, add 5 more days.
  
  If you serve someone out of the county, add 10 more days.
  
  If you serve someone out of state, add 20 more days.
  
  See Code of Civil Procedure sections 1003 to 1020. Rules for service can change. Check the California Rules of Court, the Link to Local Rules, Alameda County, and other references to be sure you are following the rules.
   
• You have to serve the other person and file your response with the court at least 10 days before the hearing.
   
• If you want to file an answer to a response, you must serve your answer at least 5 days before the hearing.

Ex Parte Procedures:
An ex parte motion is when one side make a request to the court without the other side being present. This can be to ask for an order until, or before the hearing.

For example, if you want to file a motion less than 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 heard in a shorter time period. Check the Alameda County Local Rules for times and locations of ex parte applications.

You have to tell the other side the date and time you will be presenting your application to the judge. This is called informal notice. You have to try to do it when the other person can be there. 

• 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.  

Your Motions Hearing:

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 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 Clerk to find out what days you can set a motion for hearing and to save your date.   
   
• Follow California Rules of Court, Rule 311-391.
     
• 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.
   
• Write the hearing date on your proofs of service. That way they’ll get to the staff in time for your hearing.
   
• 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.    

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5. 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.

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.

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 is not enough of a legal basis 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 disputing.

You can get help from different reference books in the Alameda County Law Library. They can tell you how to prepare or respond to a motion like this. These are some of the books:  

• California Forms of Pleading and Practice
• California Points and Authorities
• Civil Procedure Before Trial (CEB - One Volume)
• California Rules of Court
• Code of Civil Procedure of California
• Local Rules, Alameda County

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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