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Information for the Plaintiff and Defendant

This section tells you about things that everyone in the lawsuit needs to know and obey.

What is a Case Management Conference?

A case management conference is when both sides, the lawyers and the judge meet to talk about how to handle the case. There are some things you have to do for this meeting:

What Court Orders can I expect?

  • File a “Case Management Statement”: California Rule of Court 3.725 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 3.724 says you have to talk to the other side before the case management conference about how you want to handle the case, and what 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 you don’t go, you run the risk that the Court will decide against you. You might not be able to change these decisions later on.

  • Limited Civil Cases: (worth up to $25,000)

    The Case Manager Judge will ask if everyone has filed their papers on time, and if you’ve tried to settle the case. You can ask to have an Early Settlement Conference (see the Alternative Dispute Resolution [ADR] Self-Help section of this website)

    if you agree that it can help you solve your problem. Usually, the Court will give you your trial date at your first Case Management Conference appearance.

  • Unlimited Civil Case: (worth more than $25,000)

    The Case Manager Judges will ask if everyone has filed their papers on time, and if you’ve tried to settle the case. For most cases, you’ll have to try an Alternative Dispute Resolution (ADR) to solve the problem without going to court.

    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.

How do I settle my case without a trial?

  • Limited Civil Cases: A limited civil case is a case worth up to $25,000.00. You can ask for an Early Settlement Conference if you and the other side agree that it can help solve the problem.
  • Unlimited: An Unlimited civil case is worth more than $25,000.00. Usually, both sides must try ADR to solve the problem before going to trial. Local Court Civil Rule 1E describes the Court’s rules about trying to settle cases before going to trial.
  • Alternative Dispute Resolution: Try Neutral Evaluation, Mediation or Judicial Arbitration. These are kinds of Alternative Dispute Resolution (ADR). They can help you solve your dispute without going to court. Go to the Court’s Self-Help ADR section of this website for more information.
  • Settlement Conference Statement: To find out more about settlement conferences, go to the Court’s Self-Help ADR section of this website.

Costs & waiver of costs

You will have to pay some costs and expenses. These can be:

You can get a Waiver so you don’t have to pay these costs. But, you must be low-income to qualify. Look at California Rules of Court 3.50 - 3.62 to find out if you qualify. To learn more about cost or fee waivers, refer to our Fee Waiver FAQ, or see California Civil Practice, Procedure, West Group. You can find this in the law library .

  • Filing fees,
  • Process Server's fees,
  • Motion filing fees, and
  • Others (See Civil Filing Fees).

How do I build my case?

  • Discovery
  • Forms of discovery
  • Limited Economic Litigation Act
  • Subpoena: Forms and Availability

Discovery:

To get ready for trial, collect 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 can’t 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 don’t follow them, you may not be able to use your evidence in court.

Learn about these rules in the Santa Clara County Law Library. See:

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

Warning: Formal discovery can be very hard and sometimes expensive. For example, for a deposition, the person who asks for the 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.

Sometimes, the sanctions are 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, 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 will discipline that person.

Make sure you make a real effort to follow the discovery rules.

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's 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 only let you use some kinds of papers, like complaints and answers. And, discovery is more restricted. The 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 8 types of subpoenas. Make sure you get the right one for your case. Look for the subpoena form as stores that sell legal forms or at the State Court site , where there are forms such as this Civil subpoena form .

Fill out the correct form and ask someone you know, a process server, or law enforcement 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.

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 (See 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 the other party, or their lawyer and file a copy of your motion 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. And file and serve your response on the other person.

You can usually serve motions on the other party, or their lawyer, by mail. But you can also use in person 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:

Court Administration and Special Rules of Court: The Law and Motion Department is in the clerk’s office on the first floor of the Downtown Superior Court (DTS) in San Jose. The clerks in the department can answer your questions about how to file your papers properly.

Note: They can’t tell you what to say in your papers, or give you advice about problems in your papers. Their job is to make sure motions get on the calendar and that you meet the minimum requirements.

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 three parts to a formal motion:

  • Notice,
  • Declaration of Facts, and the
  • 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 Court rules about how to file papers with the Court. A private secretary service can help you write your motions. See California Rules of Court , the Local Civil Rules of Court, 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 say every point that one of the parties wants to make. Then, it talks about what’s in the declaration of acts, and how the law supports what you’re trying to say. This can be:

  • Statutes
  • Cases in the appeals court
  • Legal writing

California Points and Authorities is a book at the Law Library that can help you get your papers together. But, no book can give you all the help you need to support your case.

The Memorandum of Points and Authorities ends with a conclusion. If you’re the one who’s 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’ll get a hearing date when you file your papers with the Law and Motion Department of the Clerk’s office.

You have to serve the other person and file all your papers with the Court at least 16 court days before the hearing.

  • If you serve the Court by mail, add five 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 Local Civil Rules of Court, 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 five days before the hearing.

Ex Parte Procedures

An ex parte motion is when one side gets to meet with the judge without the other side there. This can be to ask for an order until, or before the hearing.

For example, if you don’t want to file a motion at least 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 hearing before the 15 days are up.

You can make your ex parte applications every morning between 8:15 and 9:00 AM. You have to tell the other person the date and time you’re going to give the judge your application. This is called informal notice.

You have to try to do it when the other person can be there. If they won’t go, say in a declaration of facts that you gave the other side notice and they didn’t want to come.

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.

Even though you have to ask the judge in writing, Ex-parte motions are different from motions with a formal hearing. You don’t have to file a proof of service. Your declaration of informal notice is usually enough.

Where and how can I file an Ex-parte motion?

If you have all your papers, the law and motion clerk will send you to the right courtroom. You’ll meet with the judge in chambers when he or she is free. The judge won’t let you to talk about anything that’s not in the ex-parte motion.

If the other person goes to oppose what you’re asking for, they don’t have to file papers. But, they can if they want to. Or, they can give their reasons for opposing the motion or suggest something else.

Note: For ex parte motions, you don’t file your papers with the clerk ahead of time. You give them to the court on the day you ask to see the judge. Then, someone takes them to the judge’s clerk.

Your Motions Hearing

Scheduling the date

After you have a hearing date, you have to try to agree to a date when both of you can go before you can set a time to hear the motion with the law and motion clerk. If it’s ok with the Court, you’ll have the hearing when you agreed.

In general, if you have a motion with formal notice, the judge will read each side’s papers one-two days before the hearing. That way he or she will already know about the motion.

Be ready to:

  1. Tell the Court you can give the motion to the Court without seeing the judge in person, or
  2. 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 to find out what days you can set a motion for hearing and to save your date. The phone number is in the civil section of the Court's phone list, under Law and Motion. )When you call the main civil number, list to the recording and pick the option for Law and Motion.)
  • Use a 2-hole file punch to make holes in the TOP of your pleadings.
  • Follow California Rule of Court, Rule 3.1110 . This means you have to put your hearing dates under the caption of every pleading.
  • When you go to confirm letters about continuances and other things that aren’t on the calendar, say the hearing date, case name, and action number.
  • When you aren’t going to use a hearing date, call the Law and Motion Calendar Department (number on the Court's phone list) to take it off the calendar so someone else can use it. This will make some room in the busy calendar. The Court won’t have to call you when your papers aren’t there. You can only get a continuance by ex parte order.
  • 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.
  • Call to let the Court know if you are going to file a joinder or cross-motions. Don’t just send them in the mail. Sometimes the Court doesn’t get the forms in time for the hearing.
  • Write the hearing date on your proofs of service. That way they’ll get to the staff in time for your hearing.
  • Follow the California Rules of Court, Rule 3.1320 . You have to send a Notice of hearing with your demurrer.
  • When you want to change a motion or file a cross-motion, attach a copy of it to the motion. CCP 473 says that you have to do this. After the judge grants the motion, file the original pleading with the Court. The clerk won’t file stamp the copy.
  • 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.
  • When a Judge makes an order on a motion and sends you to the Law and Motion Department, go immediately. You have to finish the process with staff. That way the order will be on the record.
  • If you get or change a hearing date, tell the Calendar staff. They have to know so they can reserve the time on the calendar.
  • Learn these California Rules of Court: CRC 2.100 - 2.119, 3.113, 3.1300. See Pretrial and Trial Rules .

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.

We can’t tell you everything about summary judgment here. So, this page will give you a general idea and tell you where you can go to get more information.

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’s not enough evidence 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 fighting over, even though you think you shouldn’t be.

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

Make sure to check the State and Local Rules of Court for any special steps you may have to take in your case.

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.

More information for the Plaintiff and Defendant: