MOTIONS OUTLINE - CIVIL PROCEDURE
Professor Hogan - UC Davis 1998
Prepared by Keith G. Wagner USE AT YOUR OWN RISK
MOTIONS
I. MOTIONS - SOME BASICS A. DISPOSITIVE MOTIONS (Essentially all saying the same thing: "SO WHAT!") 1. PLEADINGS (Attacking Facts as PLEAD) a) CA: General Demurrer b) FEDERAL: Motion to Dismiss for Failure to State a Claim 2. POST PLEADING / PRE DISCOVERY MOTIONS (Attacking Facts as PLEAD) a) CA: Motion for Judgment on the Pleadings b) FEDERAL: Same 3. POST DISCOVERY / PRE-TRIAL MOTIONS (Attacking the EVIDENCE) a) CA: Motion for Summary Judgment b) FEDERAL: Same 4. AFTER PRESENTATION of 's CASE (ATTACKING the EVIDENCE) a) CA: Motion for Non-Suit b) FEDERAL: Motion for Judgment as a Matter of Law 5. AFTER PRESENTATION of ALL EVIDENCE (ATTACKING the EVIDENCE) a) CA: Motion for Directed Verdict b) FEDERAL: Motion for Judgment as a Matter of Law 6. AFTER THE JURY VERDICT (ATTACKING the EVIDENCE) a) CA: Motion for Judgment Notwithstanding the Verdict (JNOV) b) FEDERAL: "Post trial renewal" of Motion for Judgment as a Matter of Law B. MOTION for DIRECTED VERDICT 1. Moving party says "Assume all the other party's facts are true. I still win as a matter of law." a) If the facts as presented are insufficient to prove all elements of a prima facie cause of action, moving party will win. (1) Consider the "Automobile Guest Statute" hypo from the pleadings workbook. In that case, one of the complaints alleged that the driver "suddenly and unexpectedly fell asleep." Even if this is proved at trial, this does not show "willful and wanton" conduct, and so 's prima facie case is not complete. b) The Motion for Directed Verdict is essentially a "demurrer" after all of the evidence is presented.
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Where Evidence is INSUFFICIENT for Jury to draw an inference, Motion for Directed Verdict can be granted a) An inference can be made on a PROBABILITY of fact, but not on a mere POSSIBILITY. (1) See Hypo 2, p. 2. Here, there is enough of a probability that the Hospital was responsible (and not the special nurse) that a directed verdict for the hospital would not be appropriate. b) INFERENCE DEFINED: Evid Code § 600 (1) An INFERENCE is a DEDUCTION of FACT that may logically and reasonably be drawn from ANOTHER fact or GROUP of FACTS FOUND in the action. LAW to FACT application may be made by either the court OR the jury depending on the type of case and the weight of the evidence. a) In NEGLIGENCE cases the JURY is asked to decide CLOSE QUESTIONS of LAW (1) See Hypo 3, p. 3. (Turntable Injury Case). Jury will be asked to decide whether 's decision to leave the turntable as they did was negligent. Although the court will call this a question of fact, it is really a question of law. b) Also, when deciding if an employee is "in the scope" of employment is hard, the JURY will make the call. (1) See the Loper case, p. 4. c) But if the question is REALLY EASY either way, the court will take it away from the jury (1) For instance, if the turntable had Sesame Street characters painted all over it, the court would probably simply say the was negligent. d) This "system" of "decision-making" also keeps close calls from becoming "precedent" because they are decided as "factual" issues rather than as law. e) But, some decisions will ALWAYS be reserved to the court no matter how close. (1) Such as a Minimum Contacts analysis for Jx. The POINT of this discussion? a) If the decision is in an area where close calls are given to a JURY, the atty moving for summary judgment must argue that the choice is CLEAR b) BUT, if the decision is in an area exclusively reserved to the COURT, the atty moving for summary judgment can ADMIT that its a "close call." The court should NOT grant a Motion for Directed Verdict (or nonsuit) if there is ANY QUESTION in the judges mind. a) This is because a JNOV can be granted later, and the jury's decision recorded for later reinstatement by the appellate court if the T. Court messes up.
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If a Motion for Non-Suit or for Directed Verdict is granted and the judge was WRONG, the whole trial will have to be done over. (2) Besides, the jury might agree with the judge anyway, in which case the whole question becomes moot. MOTION NOTWITHSTANDING the VERDICT (Non Obstante Veredicto) 1. CANNOT be granted in FEDERAL COURT a) Is a VIOLATION of the 7th Amendment b) Instead, the court entertains a "renewal of the motion for judgment as a matter of law" once the verdict comes in. c) IF the fails to make a motion for judgment as a matter of law, the motion cannot be "renewed." d) But, the Appellate Court will likely remand for a new trial if such a motion should have been granted. 2. CA RULE: Motion for JNOV can be granted, even if motion for directed verdict was not made. MOTION for SUMMARY JUDGMENT 1. Attacks the Evidence BEFORE trial 2. Party moving for SUMMARY JUDGMENT files an AFFIDAVIT alleging that there is NO TRIABLE ISSUE a) Then, other party must respond as to why there IS a triable issue which would prevent the court from entering summary judgment. 3. The court cannot grant a Motion for Summary Judgment as long as there remains a dispute as to any material fact. 4. ONLY items which could be offered as EVIDENCE can be put into an AFFIDAVIT supporting a motion for Summary Judgment a) Statements from Witnesses with First Hand Knowledge can be put into Affidavit b) If information from 's deposition is included, the court must assume the 's statements were true. 5. IF a party cannot fully PROVE those issues which are ALLOCATED to them, the other party may successfully move for Summary Judgment a) If one party can PROVE that the other CANNOT meet its burden of proof, then they can move for Summary Judgment. (1) See the Celotex case, p. 20 ( shows that is unable to prove that her husband ever came in to contact with 's products, thus 's motion for summary judgment is granted). 6. BUT, before entering summary judgment on an ability to bear the burden of proof, the court will make sure enough TIME for discovery has passed. 7. Motion for Judgment on the Pleadings OR Motion to Dismiss for Failure to State a Claim which "speaks" can be CONVERTED into a Motion for Summary Judgment at the court's discretion Motion for New Trial
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Losing party claims the judge has made an ERROR of LAW a) Some sort of mistake in RUNNING the TRIAL 2. New Trial may be granted where the court finds an "INSUFFICIENCY of the EVIDENCE" a) In reality, what the judge is saying is that the VERDICT is CONTRARY to the WEIGHT of the EVIDENCE. (1) In other words, no jury could have reached the decision this jury reached, given the facts they were given. 3. If motion for new trial is GRANTED, the court MUST explain the FACT supporting its decision a) Merely stating conclusions of LAW are NOT enough. (1) See examples on p. 30, Scala v. Jerry Witt. (2) For example of GOOD statement, see Herman v. Shandor statement, p. 34. Standard of Review A. Motion for JNOV 1. Court must review the evidence, including any reasonable inferences, which support the jury's verdict (). B. Motion for New Trial 1. Court must review T. Courts REASONS for granting new trial, and decide whether the evidence WAS insufficient. a) If T. Court fails to SPECIFY adequately, the granted motion for new trial will be REVERSED. C. Motion for Summary Judgment 1. Reviewed de novo ADJUSTING the VERDICT A. SITUATION: AMOUNT of VERDICT EXCESSIVE 1. REMITTITUR a) moves for new trial b) T. Court makes CONDITIONAL RULING: (1) Motion GRANTED for new trial on the issue of DAMAGES (2) UNLESS agrees to a reduction in the damages Award, (3) In which case, motion for new trial is DENIED, and judgment is entered in the REDUCED AMOUNT. B. SITUATION: AMOUNT of VERDICT is INADEQUATE 1. ADDITUR a) moves for NEW TRIAL on the issue of DAMAGES b) T. Court makes a CONDITIONAL ruling (1) Motion GRANTED for new trial on damages (2) UNLESS agrees to an INCREASE in the amount of judgment (3) IN WHICH CASE, motion for new trial is DENIED (4) and judgment is entered for in the agreed amount. 2. ADDITUR is NOT ALLOWED in FEDERAL COURT. a) 7th Amendment Violation.
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