Orange county superior court trial rules

An Orange County Superior Court judge ruled Thursday that there is enough evidence for a man accused of setting the Holy fire to stand trial on arson charges. Judge Gregg L. Prickett dismissed two felony counts of resisting arrest that had been filed against Forrest Gordon Clark, 51, at the request….

View all posts by krystalelmer. You are commenting using your WordPress. You are commenting using your Google account. Every time you went to court, you ended up with a different judge who knew nothing about your case from all the prior visits. It was a phenomenally bad system that only the government could come up with. Now you are assigned to a single judge. When the complaint is filed with the clerk at the courthouse, they actually spin a bingo ball kind of contraption with the judges names on the balls, and pull out a name, and stamp that name on the front of the complaint, right below the case number.

This makes sure the assignment is completely random. Every unrepresented defendant that has ever gone to court is absolutely convinced that the other side some how managed to get his friend the judge assigned to the case, but it doesn't happen.

So, look at the complaint and see which judge is assigned to the case. We are blessed with a very good panel of judges at Orange County Superior Court as compared to other counties, but that doesn't mean there are not some clinkers. Attorneys that practice at that court know who the clinkers are, so you should call one and ask about your assigned judge. If you got one that is not so great, you can file a simple form that rejects that judge called "papering the judge".

You only have ten days to file the form. You can do so only once, so you always run the risk that you will just be assigned to another not so great judge. Unless the judge has a really bad reputation, it is best not to waste your one challenge. If your case ever goes to trial, the odds are that you will not be in front of the judge that has had your case from the beginning. The courts intentionally overbook the trial dates, because so many cases settle on the eve of trial trial is a real motivator.

When your case is assigned a trial date, there will typically be six or more other cases assigned to the same judge on the same day. Of those seven cases, four will be settled or continued. That leaves three cases ready to go to trial. The court clerk will call Master Calendar and ask for a courtroom. You and the other parties will then wait in the hall, sometimes for days, waiting for a courtroom.

When you are finally assigned to a new judge, if you haven't used your challenge, you can still use it. This rule requires the parties to meet and confer at least ten day prior to trial in order to reach agreement on certain items if possible such as he statement of the case and the stipulated facts.

Rule also requires the parties to exchange trial exhibits prior to trial. Some judges are very strict on this rule, and we have been successful in excluding all of the opposition's trial exhibits based on their failure to exchange them prior to trial. I was served with a summons and complaint, and the summons says that I need to file an answer within 30 days.

What does an answer look like? You can get a form answer at the Orange County Superior Court, fill it out and file it, but that's usually not a good idea. Here's how pleading works.

The plaintiff is supposed to serve and file a complaint that sets forth sufficient facts so that you know what you are being sued for. The complaint sets the parameters for the action. If the complaint says you owe plaintiff money because you borrowed money and didn't pay it back, he can't spring on you at trial that you also stole money from him.

The plaintiff is bound by the complaint. And so it is with the answer. You must set forth the defenses you will rely on in defending against the complaint.

If it's not in your answer, you may be barred from using that defense at trial. Wouldn't it be ashamed if you ended up paying money you did not owe, just because you left some magic words out of your answer?

I know that I am required to answer the complaint. Can I just send a letter to the judge explaining what happened? An answer is a specific type of document, and a letter does not qualify. A judge is not permitted to read any letter that you send, because that would be what is called an ex parte communication.

A judge is never supposed to talk to one side without the other side being present. A possible exception is Small Claims Court. Since that is designed to be layperson friendly, a judge will read the letter to see if you are asking for an extension.

What do I say in the answer? Is that where I tell my side of the story? Can I just use the "check-the-box" form I found on line? Here is the way it is supposed to work. The plaintiff files a complaint which is supposed to contain enough facts so that the defendant can properly know of what he or she is being accused.

If a complaint just said, "defendant injured me," that would not be sufficient. The defendant would not know whether he is being accused of assaulting the plaintiff, or perhaps was involved in an auto accident with the plaintiff. The complaint needs more facts. Similarly, an answer is supposed to contain sufficient facts so that the plaintiff will know the basis upon which the defendant is denying the allegations of the complaint.

But for some reason no one does it that way. Most defendants will simply file what is called a "general denial," claiming that all the allegations of the complaint are false. This is a legal fiction, because even the defendant will admit that some of the allegations are true, such as the county where he resides.

If a plaintiff really wants to force the defendant to file a more meaningful answer, he can file a verified complaint. With a verified complaint, the plaintiff states under penalty of perjury that all of the allegations are true. The defendant, under most circumstances, must then file a verified answer, either admitting or denying each of the allegations in the complaint. Generally it is considered a bad idea to file a verified complaint unless a particular cause of action requires it, because as you conduct discovery in a case, your understanding of the facts might change.

As to the check-the-box answer you can get from the court, utilizing that form can be a really bad idea. The answer must also contain any "affirmative defenses" upon which the defendant intends to rely.

A general denial puts in dispute any allegations that are specifically refuted by that denial. But any defense that goes beyond a direct denial requires an affirmative defense. This is sometimes called the "yes, but" test. In other words, if in response to an allegation in the complaint, your response is, "yes, that allegation is true, but.

There are many affirmative defenses that must be set forth in the answer or they are waived although the court might give you permission to amend the answer to add a defense. In other words, you could go to trial and lose because you can't rely on a defense that would have defeated the claim. One of the best examples of this is the statute of limitations. Take an oral contract. Under the statute of limitations, an action on an oral contract must be brought within two years of the breach.

Defendant sues you three years after the breach, and you file an answer with no affirmative defense for the statute of limitations. If you had alleged that affirmative defense, you could have won the case by simply proving that the breach occurred more than two years before the complaint was filed.

Without that defense, the judge will not permit you to rely on that defense because you did not put plaintiff on notice that was your intention , and you will need to find some other reason that you are not responsible for the debt. I want to include a claim for punitive damages in my complaint. How much should I ask for? Sometimes it would even generate press coverage. In response, the California Legislature passed a law making it improper to allege an amount of punitive damages.

You must still ask fo r punitive damages in your complaint i f there is a basis for recovery, but you may not set forth an amount. By the way, you cannot recover punitive damages in a breach of contract action.

Should I sue everyone that might be responsible for my damages? Can't I just dismiss if I'm wrong? Another common mistake made by people representing themselves, as well as amateur attorneys, is to sue everyone they can think of, and throw in every conceivable cause of action.

The thought is that even if someone is named as a defendant that shouldn't have been, the action can always be dismissed as to that defendant. Unscrupulous attorneys will try to settle with the improperly named defendants, offering to dismiss the action for, say, five or ten thousand dollars.

This is common in construction defect cases, where the plaintiff's attorney will name every subcontractor. Even if the claimed defect is soil subsidence, they'll name the guy that installed the air conditioning. Naming too many defendants and "over-pleading" listing too many claims are both bad strategies if the attorney on the other side knows what he or she is doing.

For example, let's assume my client is a construction corporation that bought some building materials from you, but due to a downturn in the housing market is unable to pay you when due.

You go to an attorney who properly sues the corporation, but then thinking it will apply a little more pressure, he also sues my client as in individual, even though it was the corporation that bought the materials. For even more pressure, the attorney also sues for fraud, not just breach of contract.

By suing for fraud, you could recover punitive damages, so that make the action much scarier for my client, or so your attorney thinks. Big, big mistake. I will immediately bring a motion to dispose of the action. Once filed, any dismissal will be viewed as a response to my motion, meaning that my client has prevailed on the merits. Even if I allow the case to go to trial, assuming there is no defense to the money owed, you will prevail only on the breach of contract action against the corporation.

My individual client, on the other hand, will prevail on the breach of contract cause of action, and he and the corporation will both prevail on the fraud cause of action. To prove fraud, you must show that the defendants had no intention to perform. Failing to pay because of a downturn in the market does not evidence an intent to defraud, only an inability to pay. Even though you won on one cause of action, my clients prevailed on three.

That makes them the prevailing parties. They will recover all attorney fees and costs, assuming there was a basis for attorney fees, and that total may well exceed the amount you recover for breach of contract. If there is no basis to recover attorney fees directly, no problem, we then just sue for malicious prosecution and recover them that way.

All because your attorney named too many defendants and causes of action. It's a balancing act when you draft a complaint, because you do want to allege all appropriate causes of action in case one gets thrown out, against all the appropriate defendants, but as you can see it can be perilous to over-plead. Be sure to consult a competent attorney. What is the difference between mediation and arbitration? Mediation - A process in which a neutral third person meets with the parties to a dispute in order to assist them in formulating a voluntary solution to the dispute.

Arbitration - Using a neutral third person to resolve a dispute instead of going to court. The parties can agree whether the arbitration will be binding or non-binding. As you see from the definition of mediation, the mediator assists the parties in formulating a voluntary solution to the dispute.

We sometimes see agreements drafted by attorneys that call for "binding mediation. The mediator doesn't make a decision; he only tries to get the parties to agree to a resolution. You could, theoretically, agree that a third party will have the absolute right to decide how the parties will resolve the case, but that is not mediation. Mediation is sometimes required by an agreement, but that just means that the parties must get together and try to work out their differences. In many standard real estate agreements, the parties are required to mediate the dispute before going to court.

Sadly, we have seen a number of cases where the attorney ran to court and filed a complaint without reviewing the agreement closely enough to see the mediation requirement. By the terms of the agreement, that waives the recovery of all attorney fees.

Even if a party is certain that mediation will be unsuccessful, it is far better to spend an hour or two going through the process to preserve the right to recover attorney fees.

Arbitration is not mediation, although sometimes even arbitrators lose sight of this fact. An arbitration is an informal trial, and should follow the same rules of evidence. Many courts will order you to non-binding arbitration, hoping that will resolve the dispute.

But what is to keep the loser from simply rejecting the arbitrator's decision if the arbitration is non-binding? Nothing, but who won and lost is not always so clear. The plaintiff employee might reject because he got far less than what he asked for, but he could also be educated by the process and realize that his case wasn't the slam-dunk he thought it was. I seldom reject the option to mediate a case. It provides an independent view of the case by an impartial third party.

You either reach an agreement or you don't, and there is no downside. I've seen good mediators settle cases I never thought would settle. On the other hand, I seldom agree to non-binding arbitration unless the court orders me to go. If the case requires expert witnesses, you must pay them twice -- once for the arbitration and again at trial. Similarly, you must inconvenience your witnesses twice if the matter doesn't settle although you can under certain circumstances use declarations or deposition transcripts in lieu of live testimony.

Cancel Print. Advanced Search. Local Rules. Alameda County Eff. January 1, Alpine County Eff. July 1, Amador County Eff.

January 1, Butte County Eff. January 1, Calaveras County Eff. January 1, Colusa County Eff. July 1, Contra Costa County Eff. January, 1 Del Norte County Eff. January 1, El Dorado County Eff. January, 1 Fresno County Eff. January, 1 Glenn County Eff. January, 1 Humboldt County Eff. January, 1 Imperial County Eff. January, 1 Inyo County Eff. July 1, Kern County Eff. January, 1 Kings County Eff. July 1, Lake County Eff. January, 1 Lassen County Eff.

July 1, Los Angeles County Eff. January, 1 Madera County Eff. January, 1 Marin County Eff. January 1, Mariposa County Eff. January 1, Mendocino County Eff. January, 1 Merced County Eff. January, 1 Modoc County Eff. In the event that your county does not offer such a settlement judge, it may be advantageous and cost-effective to hire a retired judge to conduct a private mediation session, especially if you and your attorney feel that the involvement of a proactive settlement-orientated judge would help resolve many or all of the issues in your case.

Your attorney will prepare your MSC Brief telling your side of the case, which will be presented to the judge and the opposing party. The attorneys are expected to conference with each other and involve the judge only when it will help get through a problem area.

Have no fear about being shortchanged; judges traditionally stay as long as it takes if it will help settle a case. Be ready to give and take. Menu Skip to primary navigation Skip to main content Skip to primary sidebar Skip to footer. Strategic Divorce Consultation: