anti-SLAPP: Court Has Jurisdiction to Strike and Award Attorney Fees

  The California Supreme Court, in Barry v. The State Bar, holds that a court lacking subject matter jurisdiction over a claim may nonetheless grant a special motion to strike the claim under section Code of Civil Procedure section 425.16, and thus may award attorney’s fees and costs to the prevailing defendant.

Appeal of Final Judgment: Successful Party Entitled to 2nd Peremptory Challenge

  Code of Civil Procedure 170.6 provides the statutory basis to disqualify a judge from hearing a proceeding. A peremptory challenge is usually made by filing an affidavit or declaration under penalty of perjury that the judge is prejudiced against a party or attorney for a party using a locally approved form.

  If the affidavit is duly presented (timely), no further act or proof is required and a new judge must be assigned, except that no party or attorney shall be permitted to make more than one such motion in any action or proceeding, and if there are multiple plaintiffs or defendants, only one motion for each side may be made.

  What about the circumstance where an appeal is taken from a judgment or interim order? In that circumstance, section 170.6 provides that a successful party on appeal may exercise a second peremptory challenge provided the appeal is from a final judgment, but not if the appeal is from an interim order.

  The case is McNair v. Superior Court (National Collegiate Athletic Assn.): “…[W]e hold that Code of Civil Procedure section 170.6, subdivision (a)(2)  allows a party to exercise a second peremptory challenge only after prevailing in an appeal from a final judgment, but not following reversal of an interim decision.”

Hospital’s Failure to Maintain Equipment May Constitute Professional Negligence

  The California Supreme Court holds that where a plaintiff’s injury results from alleged negligence in the use and maintenance of equipment needed to implement a physician’s order concerning plaintiff’s medical treatment, the claim sounds in professional, rather than ordinary, negligence. The special statute of limitations period “for injury or death against a health care provider based upon such person’s alleged professional negligence” is applicable.

  Generally, a personal injury action generally must be filed within two years of the date on which the challenged act or omission occurred. [Code Civ. Proc., § 335.1.] However, unlike most personal injury actions, professional negligence actions against health care providers must be brought within “three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” [Code Civ. Proc., § 340.5.]

  The facts of any particular case for personal injury against a health care provider will determine whether the statute of limitations is lengthened, or shortened, by this holding. The case is Flores v. Presbyterian Intercommunity Hospital.

Mandatory Relief from Default: Attorney-Fault; C.C.P. 473(b)

  Code of Civil Procedure section 473, subdivision (b), contains the attorney-fault provision for relief from default which provides “…the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any . . . resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”

  Relief under the statute is mandatory if the conditions are fulfilled. The motion is timely if filed within six months of the entry of default judgment or dismissal. Due diligence is not required. Nor is it necessary for the attorney attesting to mistake, inadvertence, surprise or neglect be attorney of record for the party requesting relief. The statute only requires the affidavit be executed by an attorney who represents the client and whose mistake, inadvertence, surprise or neglect in fact caused the client’s default or dismissal. Continue reading

Notice of Damages: Required for Entry of Default in Action for Accounting?

  It is a fundamental concept of due process that a judgment against a defendant cannot be entered unless he was given proper notice and an opportunity to defend. Code of Civil Procedure section 580 therefore provides the relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint or in a statement of damages as required by section 425.11. Section 425.11 refers to the required statement which must be served prior to entry of default in an action for personal injury or wrongful death. In those actions, the complaint must not allege a specific dollar amount of damages.The purpose of sections 580 and 425.11 is to guarantee defaulting parties adequate notice of the maximum judgment that may be assessed against them. Continue reading

Promissory Note Statute of Limitations: 6 Years

  What is the statute of limitations on a promissory note? The statute of limitations for an action upon any contract, obligation or liability founded upon an instrument in writing is four years from breach per Code of Civil Procedure section 337. However, Commercial Code section 3118(a) provides a six-year statute of limitations for “an action to enforce the obligation of a party to pay a note payable at a definite time.” The period runs from “the due date or dates stated in the note.” Continue reading

Renewed Motions for Mandatory Relief from Default Must Comply with C.C.P. 1008

   The California Supreme Court holds that Code of Civil Procedure section 1008, which imposes special requirements on renewed applications for orders a court has previously refused, governs renewed applications for mandatory relief under Code of Civil Procedure section 473, subdivision (b), for relief from default based on an attorney’s “sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”

   Section 1008 requires a party filing a renewed application to submit an affidavit showing what “new or different facts, circumstances, or law are claimed” to justify the renewed application, and show diligence with a satisfactory explanation for not presenting the new or different information earlier. [See, Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC.]


  Mr. Daymude consults with clients and accepts cases involving relief from default and default judgments, including those based upon an attorney’s mistake, inadvertence, surprise, or neglect. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael Daymude at 818-971-9409.

C.C.P 473(b) Provides Relief From Terminating Sanction

  The Fifth Appellate District opines in Rodriguez v. Brill that relief from a judgment of dismissal under the mandatory provisions of Code of Civil Procedure section 473(b), for inexcusable failures of plaintiff’s attorney, is available following the granting of a terminating sanction. Continue reading

Medical Malpractice Statute of Limitations Tolled by Insurance Code Section 11583

  Determining when the statute of limitations expires is not always easy. This is particularly true in medical malpractice cases which are governed by two Code of Civil Procedure sections: 340.5 and 364. Additionally, other statutes may act to toll the applicable statute of limitations. One such statute is Insurance Code section 11583. It provides that the applicable statute of limitations is tolled when advance or partial payment is made to an injured and unrepresented person without notifying him of the applicable limitations period. Continue reading

Expert Witness Exchange: Service by Mail A Trap for Unwary

   The statutes governing expert witness discovery are part of the Civil Discovery Act at Code of Civil Procedure section 2016.010 et seq. The purposes of the discovery statutes are to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against surprise.

  Under the Act, so that the parties can prepare their cases for trial, a party may demand an exchange of expert witnesses. The exchange of expert witness information is governed by Code of Civil Procedure sections 2034.210-2034.310. An expert witness exchange is triggered by a timely written demand made by any party after the initial trial date is set pursuant to section 2034.220. Continue reading