As the prevailing party, or sometimes even if not, it is counsel’s responsibility to prepare a proposed order following a hearing on a motion.

 After the date of the hearing, whether or not there has been argument, the tentative ruling will be taken down. Usually, in the absence of an order prepared by counsel, the court’s register of actions will state only “motion granted” or “motion denied” – without identifying who brought the motion or the issue decided. This can be especially problematic if several motions in the same case were heard on the same date.

 Without your order identifying the motion and stating the grounds for, and the language of, the ruling, the ruling will be to all intents and purposes without legal effect (i.e. res judicata or collateral estoppel).

 

The lawsuit arose out of a minor impact motor vehicle accident. There were no serious injuries, the parties exchanged information, the police were not called and no police report was prepared. The injured passenger in the car that was struck sued the driver of the other car for his medical expenses and lost wages.

 The person named in the complaint and served by counsel for plaintiff met with her attorney. She advised the attorney that she was the driver of the car involved in the subject accident, and had caused the accident. The named defendant answered written discovery, under oath. As the parties and their respective attorneys were walking into the defendant’s deposition, plaintiff’s attorney was made aware by his client that the “defendant” was not, in fact, the person who was driving the car involved in the accident. Nevertheless, the deposition went forward and the defendant testified that she was the person driving the vehicle that struck the car in which the plaintiff was a passenger.

 Several months later, the client admitted to her attorney that her daughter had been driving and had given her mother’s name to the plaintiff, who had neglected to ask for a driver’s license.

It is elementary that when an amended complaint is filed the original complaint ceases to be the complaint in the action. It is entirely superseded by the amended complaint.  (W. H. Marston Co. v. Kochritz (1926) 80 Cal. App. 352, 361).

However, facts once alleged cannot be withdrawn from consideration by merely filing an amended pleading omitting them without explanation. Accordingly, the court may be fully justified in examining and considering the original complaint! (Neal v. Bank of America (1949) 93 Cal.App.2d 678, 682).  As the court explained in Silica Brick Co. v. Winsor a party should not be permitted to allege as ultimate facts [in an amended pleading] matters at variance with facts to which he had previously sworn.

To be enforceable a settlement agreement must be signed by the party. Plaintiff’s attorney represented to defense counsel his clients had agreed to the settlement and defense counsel, relying on the representation, neglected to post jury fees. At the pre-trial conference the plaintiff advised the court he had changed his mind, there was no settlement and he wanted to go to trial – a court trial. The judge ruled that since the plaintiff had not signed a settlement agreement there was no enforceable settlement, and further that the defense had waived the right to a jury trial by failing to post jury fees, the reason for the failure being immaterial.

 But the defense motion to set aside the jury waiver was granted and the matter was set for jury trial When the plaintiff was again faced with a jury trial, the case settled on the terms as originally agreed!

As Matthew McConaughey advised on the “Tonight Show with Steven Colbert” on 08/24/17.

A client prepared and executed a two page general power of attorney. The client’s attorney asked to review it and then advised the client it was not adequate; the Durable Power of Attorney drafted by the attorney was 42 pages long and described in exacting detail each and every one of the “powers” of the attorney in fact. But the POA drafted by the attorney did not specifically state the attorney in fact could close the bank account of the client’s deceased spouse (which was originally the intended purpose of the POA), and the bank’s legal department was unable to determine whether that could be inferred from any of the “powers” enumerated. The two page POA saved the day.

In the 21st century we show video recorded depositions to the jury and use power point presentations to illustrate our arguments at trial… but counsel should nevertheless remember that “when the Court have delivered their opinion, counsel should sit down and not dispute it any further” as Chief Justice Jefferies advised counsel in the Case of Titus Gates (1685). In 1688, Sir Robert Wright, Chief Justice of the King's Bench at the Trial of the Seven Bishops admonished counsel to “First settle what the case is, before it be either proved or argued.” The Chief Justice further admonished counsel to “Produce that which is evidence, and not spend our time on that which is not.” And finally warned, “If you do say anything more, pray let me advise you one thing: don't say the same thing over and over again, for after so much time spent, it is irksome to all company as well as to me.”

Be sure you know the rules of engagement…

Don’t put yourself in the position of having to defend the form of your pleading to the court, rather than the substance, and have your motion or request denied or rejected because you used a traditional pleading instead of a Judicial Council Form. Determine if the court prefers, or requires, a Judicial Council form: the court might still accept a traditional pleading for an acknowledgement of satisfaction of judgment; however, a petition for the court’s approval of a minor’s compromise must be submitted on a Judicial Council form (perhaps because it is heard in the Probate Court).

 In the event the case takes a detour over to the Workers Compensation Appeals Board or Bankruptcy Court, they have their own peculiar forms... and rules of engagement.

Judges don’t like to make decisions.

An attorney once advised your editor that judges don’t like to make decisions. It might be because one party is local and other from out of town; or because the issue should be decided one way based on a strict interpretation of the law and another on grounds of what would be morally right. Sometimes it is a matter of a failure to provide the judge with sufficient authority such that he can be fairly confident he will not be overruled on appeal. 

Sometimes the judge’s reluctance to rule can be used to your advantage… a few years ago your editor was involved in a case in which the tentative ruling on a summary judgment motion went against the client. At oral argument, the judge wanted to find for plaintiff, but the facts and the law clearly supported the defendant’s position, so the judge took the ruling under advisement. The judge never issued a decision; but that meant that he didn’t affirm the tentative ruling either! The judge’s failure to issue a decision was effectively used to negotiate a better settlement for the defendant.

Shall” does not always mean “shall”...

When bringing a motion beware of relying on the term “shall” in a statute; it is not always interpreted by the court as a directive that the court “must” do something, as your editor discovered to her chagrin when she relied on the provisions of the statute that the court “shall” postpone a trial … for a period not to exceed 30 days, when all attorneys of record of parties who have appeared in the action agree in writing to such postponement. At argument on the motion directed by the court, the judge denied the continuance, on the grounds he had the discretion to do so.

It’s not quite an episode of “American Greed”

(American Greed is a “dissection of the dark side of the American Dream… involving credit card scams, identity theft, counterfeiting and Ponzi schemes.”)

 A homeowner hired a contractor to build a custom designed home, then sued the contractor for “defective work”, because she didn’t like the finished product (your editor was advised that the house really was “ugly”).  Another homeowner (with a Jaguar in the garage) paid several million dollars cash for a home in a new development, then sued the contractor; the homeowner was overheard admitting that he made the claim to get money to remodel the house. An employee claimed to have been injured in a motor vehicle accident while on the job; workers’ compensation awarded him chiropractic care for life.  He then sued the driver of the other car involved; the driver was determined to have not caused the claimed accident-related injury. Workers’ compensation advised that the finding meant that plaintiff would no longer receive any chiropractic care for the “disability” on the grounds it was not a “work-related” injury.

The attorney really should be aware of the nuances of context.

Is the transaction between savvy businessmen or an insurer and individual insured?  What were the trespassing kids doing on the property, skateboarding?  Was the plaintiff contributorily negligent, or did he assume the risk inherent in the activity?

Your editor was in court a few years ago, listening to the law and motion calendar when a few lines from a Kenny Rogers song called “The Gambler” came to mind. “You’ve got to know when to hold ‘em/Know when to fold ‘em..”.

In the tentative ruling the judge had granted the moving party’s summary judgment motion, but the prevailing party’s attorney made argument after argument, despite the judge’s becoming visibly increasingly impatient … finally the judge “ruled”, reversing the tentative ruling on the grounds that the attorney had convinced him that his motion should not have been granted.