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Pre-Trial Law and Motion: What is it Good For?. Presented by: Michael W. Pott and Carl L. Fessenden, Porter Scott Moderator: Brian Kelley , Bickmore Risk Services. Goals of the Presentation. What is the purpose behind filing certain motions.

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Pre-Trial Law and Motion: What is it Good For?

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Pre-Trial Law and Motion: What is it Good For?

Presented by: Michael W. Pott and Carl L. Fessenden, Porter Scott

Moderator: Brian Kelley , Bickmore Risk Services

Goals of the Presentation

  • What is the purpose behind filing certain motions.

  • What pre-trial motions make sense to file in a case.

  • What are the costs and benefits of filing pre-trial motions.

Three Phases of Motions

  • Pre-Answer Motions

    • Demurrers/Motions to Dismiss, Anti-SLAPP Motions, Motion to Strike

  • Post-Answer Motions

    • Motion for Judgment on the Pleadings, Discovery Motions, Motion for Summary Judgment

  • Other Motions

    • Motion to Seal, Motion for Reconsideration, Motions for Sanctions, Pitchess Motions for discovery of peace officer personnel records


  • What is it?

    • Challenges the legal sufficiency of a complaint or answer.

  • When do you file it?

    • Before an answer is filed.

  • What does the court consider in ruling on the motion?

    • The court takes all facts plead as being true.

    • Cannot consider extrinsic evidence, but can consider exhibits attached to the Complaint.

    • Can consider judicially noticed documents


  • Reasons to file a demurrer

    • There is no legal authority for a claim.

    • Plaintiff has failed to plead certain facts and you do not believe such facts can be alleged.

    • To clean up vague or ambiguous pleadings if you plan to file a motion for summary judgment.

    • Where a statute of limitations argument appears obvious from the allegations in the complaint.

    • When you can eliminate a cause of action that would change the scope of discovery, eliminate potentially damaging evidence or allegations, or result in a defendant being dismissed from the case.


  • Things to consider when deciding whether to file a Demurrer

    • The court will likely grant leave to amend.

    • You may educate opposing counsel to rethink the case and come up with a stronger cause of action or satisfy statute of limitations.

    • How long will the case be delayed?

    • What is the cost for filing and what is my best case result if the demurrer is granted?

Hypothetical #1

  • An accident happens on January 1, 2012.

  • Lawsuit filed against the public entity on May 1, 2012

  • Plaintiff did not file a government claim before filing suit.

    Q1: Should you file a demurrer?

    Q2: What if lawsuit was instead filed on July 5, 2012? Should you file a demurrer?

Hypothetical #2

  • Employee Edna files a lawsuit claiming she was harassed because of her race and sues her employer and her supervisor, Joe.

  • There are no allegations in the Complaint that Joe ever said anything that could be construed as harassing based on Edna’s race.

  • Instead, Edna’s chief complaint is Joe was questioning her work performance and constantly writing her up.

  • Q: Should you file a demurrer?

Motion to Dismiss

  • It is the federal court equivalent to a demurrer.

  • Same considerations should be given to filing a motion to dismiss as would be given to filing a demurrer.

  • Even if may lose on certain claims, it can still be helpful to educate the Court since you will have the same judge throughout the case.

Anti-SLAPP Motions

  • What is it?

    • A broader motion to strike authorized against SLAPP suits (Strategic Litigation Against Public Participation)

    • SLAPP suits are lawsuits that can be characterized as being brought to chill the valid exercise of constitutional rights of freedom of speech.

    • The Anti-SLAPP statute states persons have a right not to be sued for exercising their constitutional rights

    • Anti-SLAPP statute allows defendants an opportunity to dispose of certain lawsuits at the pleading stage and avoid incurring costs of litigation.

Anti-SLAPP Motions

  • Four categories of suits to which the anti-SLAPP statute applies:

    • Statements or writings made before a legislative, executive, judicial, or other official proceeding;

    • Statements or writings made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or other legally authorized official proceeding;

    • Statements or writings made in a place open to the public or in a public forum, in connection with an issue of public interest;

    • Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with an issue of public interest.

Anti-SLAPP Motions

  • Examples of occasions when the Anti-SLAPP statute has been found to be applicable.

    • Written communications between a police officer and the District Attorney;

    • Statements made during investigation of possible criminal activity;

    • Reports to the police;

    • Gathering information to be used in a television broadcast;

    • Statements published in a newspaper regarding the reasons for terminating a school’s football coach;

Anti-SLAPP Motions

  • Causes of action that can be stricken

    • The critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.

    • Look at the principal thrust or gravaman of the claim.

      • Defamation

      • Interference with prospective economic advantage

      • Nuisance

      • Intentional and negligent infliction of emotional distress

      • Invasion of privacy

Anti-SLAPP Motions

  • When do you file it?

    • Must be filed within 60 days after service of the Complaint or Amended Complaint or as permitted in the court’s discretion.

    • Court clerk is required to schedule a hearing on the motion within 30 days of service of the motion unless docket conditions require a later hearing.

Anti-SLAPP Motions

  • Procedure for motion

    • Defendant must show that plaintiff’s lawsuit or a cause of action contained therein arises from defendant’s exercise of free speech or the right to petition as defined in the statute.

    • Defendant can do this by submitting declarations and offering other evidence.

    • If defendant makes a prima facie showing, then the burden shifts to plaintiff to establish a probability of prevailing on the claim being attacked.

Anti-SLAPP Motions

  • Benefits to filing motion

    • Limits costs of defending against a lawsuit by imposing a short timeframe for filing such motions and staying all discovery (unless the discovery is authorized by the court).

    • Forces the plaintiff to establish a “probability” of prevailing on the merits of the claim – i.e. free discovery.

    • Exposes the plaintiff to an attorney’s fees award if the motion is granted.

    • Immediate right to appeal decision.

Hypothetical #3

  • Employee Joe has a position with the county that is not a civil service position. He serves at the pleasure of the County Executive Officer.

  • After various employees complain for over one year about Joe’s handling of situations at work and about his overbearing nature, the CEO decides to terminate him.

  • Joe is served with a Notice of Intent to terminate and is given an opportunity to provide a response.

  • Joe hires an attorney who sends a letter to the CEO with Joe’s response. The letter discusses in vague terms some recent medical problems Joe has had. In the letter, the attorney also makes a settlement demand.

  • A local newspaper reporter hears about the termination and letter and asks for a copy of the letter. The CEO provides a copy of the letter and the reporter summarizes certain portions of it in a newspaper article.

  • Joe sues the County for invasion of privacy.

    Q: Should you file an anti-SLAPP motion?

Motion to Strike

  • Purpose: To strike various allegations in a Complaint or the pleading itself.

    • Must be filed at same time as a demurrer.

    • Used to challenge pleadings filed in violation of a deadline or court order.

    • Can be used to carve out irrelevant, false or improper matter.

    • Can strike improper damage claims such as claims for punitive damages asserted against a public entity.

Motion for Judgment on the Pleadings

  • Purpose: Has the same function as a demurrer, except filed after an answer has been filed.

    • Statutory (CCP Section 438) and non-statutory motions

    • Could use this motion to challenge the statute of limitations issues in the prior hypotheticals.

    • Cannot raise issue previously raised in a demurrer unless there has been a material change in applicable law or statute.

Discovery Motions

  • Motion to Compel

    • When plaintiff has failed or refused to respond to written discovery or deposition questions.

    • When plaintiff has failed to completely respond to the questions propounded.

    • Monetary or issue sanctions – what do the courts think about these topics?

  • Motion to Have Requests for Admission Deemed Admitted

    • When plaintiff has failed to respond.

    • If responses served before hearing, then requests will not be deemed admitted.

Discovery Motions

  • Motion to Quash

    • In response to an issued subpoena

  • Motion for Protective Order

    • To prevent misuse of information provided

    • To excuse production to protect against oppression or undue burden

    • To extend the time for production

  • Motion for Mental Examination

    • Necessary if plaintiff will not stipulate to the examination

Hypothetical #4

  • Defendant asks Plaintiff to produce all documents, photographs and video recordings that support Plaintiff’s claim there was a dangerous condition of public property.

  • Plaintiff objects to the request claiming the information is protected by the work product privilege.

    Q: Should you move to compel production?

Motion for Summary Judgment

  • What is it?

    • Enables the court to determine the opposing party’s pleadings lack legal or factual support and to terminate or limit the action accordingly.

    • Can challenge entire case (motion for summary judgment) or causes of action (motion for summary adjudication)

  • Avoiding a “triable issue of fact”

    • The Judge does not weigh the evidence or assess the credibility of witnesses.

    • If a “triable issue of fact” is found, the motion is denied.

Motion for Summary Judgment

  • Benefits:

    • If win the motion, then get an immediate judgment in favor of defendant; thus, avoiding the expense associated with trial.

    • If part of motion is denied, can still have some claims dismissed which could eliminate defendants, narrow the scope of relevant evidence and shorten the trial.

    • If the judge who hears the motion is the trial judge, the motion can educate the judge about the weaknesses of the plaintiff’s case.

Motion for Summary Judgment

  • Costs

    • Can be very costly. Even straight forward motions can cost up to $10,000. More complex motions can cost in excess of $20,000.

  • Judicial attitude

    • Judge may not have enough resources to deal with the motion substantively and instead try to find a technicality upon which to deny the motion.

  • Effect on settlement

Motion to Seal Records

  • Unless confidentiality is required by law for certain information, court records are presumed open to the public.

  • A stipulation by the parties to seal records is not sufficient.

    • Cannot move to seal records after the fact.

  • Court must find an overriding interest exists that overcomes the right of public access to the record, a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed, and no less restrictive means exist to achieve the overriding interest.

Motion for Reconsideration

  • Can be brought under CCP 1008(a)

  • Must be made to same judge who made the original ruling

  • Must be made within 10 days after service of the notice at issue

  • Must be based on new or different facts, circumstances or law

    • Cannot simply reargue points that have already been argued.

Motion for Sanctions

  • C.C.P. Sections128.5 and 128.7

  • Rule 11 of the Federal Rules of Civil Procedure

Pitchess Motion

  • California Evidence Code Section 1043

    • Requests production of peace officer personnel records

    • Usually defending against requests for these records

  • Differences between applicability in Federal Court cases and Superior Court cases.

Motion in Limine

  • What is it?

    • A motion to have certain evidence barred from trial.

    • Not intended for use as a last minute motion for summary judgment at trial or in moving to dismiss claims at trial.

    • Only deals with evidentiary issues.

  • Reasons for filing

    • Have prejudicial or irrelevant evidence excluded from trial.

    • Educate the judge on certain evidentiary or legal issues.


Contact Us…

  • Michael Pott and Carl Fessenden, Porter Scott Attorneys


    • (916) 929-1481

  • Brian Kelley, Bickmore Risk Services


    • (916) 244-1127

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