SO, P’s case dismissed, AND affirmed on appeal NOT an abuse of … discretion by court (BUT, b/c other court MAY have discretionary, found differently) Exception to rule” impracticability… “5-yr. 3 factors of impracticability… Circumstance of impracticability Causal connection Reasonably diligent in prosecuting In trial NOT brought Tamburina v. Combined Insurance Co. of America, within 5 yrs. b/c of issues w/ P’s health AND P’s counsel’s health… YES (P AND P’s counsel both Circumstance of impracticability seriously ill at different times… AND, anything less than serious illness would NOT have been sufficient) YES (illnesses covered bulk of 5-yr. period… Causal connection AND, P unsuccessfully tried to find new counsel) D’s counsel in stipulated to extension b/c of said Tamburina health issues… BUT, stipulations NOT clear re: whether running against … opponent MAY stipulate for purpose of moving for rule” mandatory involuntary dismissal ?? (remanded on this issue) Reasonably diligent in prosecuting Default If D to respond to then P files complaint, Request for Entry of Default within 10 days (CRC NOT automatic… AND, again, 3.110) Statement of must precede (if applicable) Damages After P files Request for Entry of Default, Request for Entry of Default (within 45 days)… Judgment then, (CCP basics vary from court-to-court prove-up hearing § 585) … (some more trial-like than others) as sanction… Default In D responds to complaint, BUT behaves (blows Greenup v. Rodman, off court grants P’s motion for document production) default… BUT, P did NOT plead damages in (ONLY alleged in excess complaint … of jurisdictional requirements) expected evidence of damages during discovery allows P to file BUT, if D responds first amended complaint… to then P loses first amended complaint, default…
… SO, P’s case dismissed, AND affirmed on appeal NOT an abuse of discretion by court (BUT, b/c discretionary, other court MAY have found differently) Exception to “5-yr. rule” impracticability… 3 factors of impracticability… Circumstance of impracticability Causal connection Reasonably diligent in prosecuting In Tamburina v. Combined Insurance Co. of America, trial NOT brought within 5 yrs. b/c of issues w/ P’s health AND P’s counsel’s health… Circumstance of impracticability YES (P AND P’s counsel both seriously ill at different times… AND, anything less than serious illness would NOT have been sufficient) Causal connection YES (illnesses covered bulk of 5-yr. period… AND, P unsuccessfully tried to find new counsel) D’s counsel in Tamburina stipulated to extension b/c of said health issues… … BUT, stipulations NOT clear re: whether running against rule” opponent MAY stipulate for purpose of moving for mandatory involuntary dismissal Reasonably diligent in prosecuting ?? (remanded on this issue) Default If D to respond to complaint, then P files Request for Entry of Default within 10 days (CRC 3.110) NOT automatic… AND, again, Statement of Damages must precede (if applicable) After Request for Entry of Default, P files Request for Entry of Default Judgment (within 45 days)… … then, prove-up hearing (CCP § 585) basics vary from court-to-court (some more trial-like than others) Default as sanction… In Greenup v. Rodman, D responds to complaint, BUT behaves (blows off document production) court grants P’s motion for default… … BUT, P did NOT plead damages in complaint (ONLY alleged in excess of jurisdictional requirements) expected evidence of damages during discovery allows P to file first amended complaint… BUT, if D responds to first amended complaint, then P loses default…
Civ-Pro-II_Bakhshian-Fall-2009.docx