Litigation

Increasingly, we have found greater resistance from insurance companies and/or defense counsel when seeking to settle cases for fair compensation without filing a lawsuit. The trend in recent years is clearly toward plaintiffs having to file suit before insurance companies or defense counsel will give serious consideration toward settlement.

In part, since CCP 999-999.5 went into effect, insurance companies have more legal cover for employing lengthy delays in evaluating cases and making any offers. There are many considerations that should go into whether to litigate, including time and monetary costs to plaintiffs, strength of a plaintiff’s case, likelihood of securing a substantial or simply adequate settlement, and the chances of winning the matter if litigated.

In our experience insurance companies will nearly always put more money on the table after we file litigation – assuming that damages are high enough and liability is clear enough. On the other hand, we must also consider the willingness and ability of a client to engage in the often lengthy and arduous litigation process, the loss of privacy and the significant stress for a client that litigation can cause.

The litigation process, unfortunately, can be lengthy and complicated. Below is a non-comprehensive list of potential steps in litigation important to plaintiffs in particular:

INITIATING THE LAWSUIT

Serving defendant after complaint is filed

60 days after filing (Cal. Rules of Court § 3.110(b).)

Serving additional defendants after complaint is amended to add defendants

30 days after filing of the amended complaint  (Cal. Rules of Court § 3.110(b).)

DISCOVERY PHASE OF THE LAWSUIT

Move to compel additional answers

45 days after receipt of the verified discovery responses. (Code Civ. Proc., § 2030.300, subd. (c).)

Deposition Notice

Defendant may serve any time after defendant has been served. Plaintiff must wait 20 days after service of Summons and Complaint to serve (Code Civ. Proc., § 2025.210, subds. (a)–(b).)

Depositions that include records requests

For parties to the lawsuit, no subpoena is necessary, and the party can be compelled to produce “personal records” with only 10 days’ notice (Cal. Code Civ. Proc., § 2025.270.)

Add five calendar days if the notice is mailed and  the place of mailing and the place of address is within California) (Cal. Code Civ. Proc., § 1013).

Add 10 calendar days if notice is mailed and either the place of mailing or the place of address is outside the State of California but within the United States (Cal. Code Civ. Proc., § 1013).

Noticed motions

Must be served and filed 16 court days before the hearing date (plus 5 more calendar days if served by mail) (and 2 more if served by fax, express mail, or overnight delivery) (Cal. Code Civ. Proc., § 1005(b)).

Note: Cal. Code Civ. Proc., § 1013 does not apply.

Opposition to noticed motion

Must be filed and served nine court days before hearing (Cal. Code Civ. Proc., § 1005(b)).

Reply to noticed motion

Five court days before hearing (Cal. Code Civ. Proc., § 1005(b)).

Ex Parte Motions

Opposing party must be notified by 10:00 A.M. the day before the hearing, absent “exceptional circumstances.” (Cal. Rules of Court § 3.1203(a).)

Local rules may be more strict.

Motions for Summary Judgment

Notice of motion and supporting papers must be at least 75 days before the hearing date. (Cal. Code Civ. Proc., §437c(a).)

Opposition must be filed 14 days before the hearing (Cal. Code Civ. Proc., §437c(b)(2).)

Reply must be filed no less than 5 days before hearing. (Cal. Code Civ. Proc., §437c(b)(3).)

Motion must be heard 30 days before trial date, unless good cause is foound by court to extend this time limit. (Cal. Code Civ. Proc., §437c(a).)

Expert Witnesses

Must be demanded 70 days before trial, or 10 days after trial setting, whichever is closer to trial date (Cal. Code Civ. Proc., 2034.220.)

Must be disclosed 50 days before trial or 20 days after service of demand, whichever is closer to trial date  (Cal. Code Civ. Proc., 2034.230.)

Supplemental disclosures must be disclosed within 20 days of the exchange of expert witnesses. (Supplemental witnesses are restricted to witnesses who will express an opinion on a subject to be covered by an expert designated by an adverse party in the exchange, if the party supplementing does not already have an expert retained to give opinions on that subject)  (Cal. Code Civ. Proc., 2034.280.)

Expert discovery cutoff is 15 days before trial (Cal. Code Civ. Proc., 2024.030.)

Last day for motions related to experts is 10 days before trial (Cal. Code Civ. Proc., 2034.230.)

TRIAL AND SETTLEMENT

998 Offers to Compromise

Can be made until 10 days prior to the start of trial or arbitration.  (Cal. Code Civ. Proc., § 998.)

Notice to Appear at Trial (to party) [No documents]

10 days before trial, send notice with time and place to attorney. (Cal. Code Civ. Proc., § 1987(b).)

Notice to Appear at Trial (to party) [With documents]

20 days before trial, send notice with time and place to attorney. (Cal. Code Civ. Proc., § 1987(c).)