then, shifts to opposing trial to show existence of genuine issue … BUT, w/ 3 differences (Aguilar v. Atlantic Richfield Co.)… … NO evidence required in federal NO required in federal court separate statement of undisputed facts (though, rare NOT to include both) Timing… Federal 10 days before hearing CA 75 days before hearing (w/ hearing 30 days before Right to Trial by Jury NO right to jury on equity (i.e. promissory estoppel, injunction, rescission)… BUT, YES on everything else (CCP if sets forth legal AND § 592) complaint equitable theories, then 2 rules (each within court’s discretion)… if legal/equitable theories NOT severable, then of the action” rule “Gist determine which is primary focus (if legal, then YES jury… BUT, if equitable, then NO jury) if legal/equitable theories severable, then bifurcated first” rule “Equity trial w/ equity first, then law (opposite in federal court) Waiver of jury 2 ways… Failure to demand typically at beginning OR end of OR, complaint… orally at BUT, at bare minimum, waived if case management conference… NOT demanded by the time trial is set Failure to pay fees (CCP $150 deposit 25 days prior to trial § 631(d)(5)) (attorneys commonly forget) Challenging jury/judge… Six in typical one-P-v.-one-D case (more likely peremptory challenges eight if multiple Ps/Ds) If (i.e. bias for/against, knowing judge/party/ cause” challenge “for witness) fails, then likely becomes peremptory challenge… AND, difficult to that is being used peremptory challenge … improperly (inherently involves stereotyping/guessing) Challenging in bench trial technically requires prejudice (CCP § BUT, grounds need NOT be stated 170.6)…
… then, shifts to opposing to show existence of genuine issue … BUT, w/ 3 differences (Aguilar v. Atlantic Richfield Co.)… NO evidence required in federal NO separate statement of undisputed facts required in federal court (though, rare NOT to include both) Timing… Federal 10 days before hearing CA 75 days before hearing (w/ hearing 30 days before Right to Trial by Jury NO right to jury on equity (i.e. promissory estoppel, injunction, rescission)… BUT, YES on everything else (CCP § 592) if complaint sets forth legal AND equitable theories, then 2 rules (each within court’s discretion)… “Gist of the action” rule if legal/equitable theories NOT severable, then determine which is primary focus (if legal, then YES jury… BUT, if equitable, then NO jury) “Equity first” rule if legal/equitable theories severable, then bifurcated trial w/ equity first, then law (opposite in federal court) Waiver of jury trial 2 ways… Failure to demand typically at beginning OR end of complaint… OR, orally at case management conference… BUT, at bare minimum, waived if NOT demanded by the time trial is set Failure to pay fees (CCP § 631(d)(5)) $150 deposit 25 days prior to trial (attorneys commonly forget) Challenging jury/judge… Six peremptory challenges in typical one-P-v.-one-D case (more likely eight if multiple Ps/Ds) If “for cause” challenge (i.e. bias for/against, knowing judge/party/ witness) fails, then likely becomes peremptory challenge… … AND, difficult to that peremptory challenge is being used improperly (inherently involves stereotyping/guessing) Challenging in bench trial technically requires prejudice (CCP § 170.6)… BUT, grounds need NOT be stated