.....................................................................................Chapter 3: Pleadings and Joinder

........................................................................................................A. Complaint
1. Special Filing Requirements
p. 126, add second federal example on line 6, after "intervention):" The FTCA provides that a claim against the US is barred unless it is "presented in writing to the appropriate Federal agency within two years after such claim accrues or is begun within six months after the date of [the agency's] mailing * * * of notice of the final denial * * *. 28 USC § 2401(b).

p. 127, add to pre-filing notice bullet list:
.....o Under the California Whistle Blowers Act, Gov't Code § 8547 et seq., an action for damages by a University of California employee "shall not be available ... unless the injured party has first filed a complaint with the [designated] university officer ..., and the university has failed to reach a decision ... within the time limits established ... by the regents." As the statute clearly states, a former employee's action was precluded when the university timely decided his retaliation complaint. Miklosy v. Regents of the University of California, 44 Cal.4th 876, 80 Cal.Rptr.3d 690, 156 P.3d 629 (2008). The same Act also requires certain state employees to first file a complaint with the State Personnel Board. State Board of Chiropractic Examiners v. Superior Court, 45 Cal.4th 963, 89 Cal.Rptr.3d 576, 201 P.3d 457 (2009).
..... o Certain California litigants must obtain a pre-filing order after they have unsuccessfully pursued too many lawsuits within a specified period. See below---E. Truth in Pleading, 1. Frivolous Pleadings, (a) Vexatious Litigants. ..

p. 130, after the Wurts case: for the California Supreme Court Government Claims Act Stockton case: click here.
For the Court's application of the MICRA § 364 pre-filing notice to health care service professionals, see Woods v. Young, 53 Cal.3d 315, 279 Cal.Rptr. 613, 807 P.2d 455 (1991). * Failure to file the required notice "shall be grounds for professional discipline," but "shall not invalidate any proceedings." CCP § 365. "No particular form of notice is required." CCP § 364(b).

p. 131, add following as new Note 8: Assume that a provision in a contract with a local city governmental entity calls for a contractually mandated claim procedure. The plaintiff complies with that procedure. The Government Code also mandates notice under the Government Claims Act. Does the plaintiff have to provide a second round of notice? See Builders v. City of Berkeley, 166 Cal.App.4th 276, 82 Cal.Rptr.3d 605 (2008).

2. Categories of Complaint
p. 137, end of section 2. add new subsection: (d) Incorporation by Reference
.....A pleader may effectively state a valid cause of action by reference to another portion of the pleader's own complaint, or cross-complaint. As noted by the California Court of Appeal: “The phrase incorporation by reference’ is almost universally understood, both by lawyers and nonlawyers, to mean the inclusion, within a body of a document, of text which, although physically separate from the document, becomes as much a part of the document as if it had been typed in directly.” Republic Bank v. Marine National Bank, 45 Cal.App.4th 919, 922, 53 Cal.Rptr.2d 90, __ (1996).
.....Examples include an amended answer, which properly incorporated by reference certain exhibits pleaded in the original answer. There was “not the slightest reason” for holding that a pleading could not incorporate by reference an exhibit or allegation found in another pleading in the same case, even though the earlier pleading had been superseded by the later pleading. Turney v. Collins 48 Cal.App.2d 381, 388, 119 P.2d 954, ___ (1941). One may also draw upon another party's pleadings as well. So "the general rule of law applicable to pleadings permits the Cross-Complaint to incorporate by reference allegations contained in the FAC [First Amended Complaint]." Pine Terrace Apartments v. Windscape, 170 Cal.App.4th 1, 18, 87 Cal.Rptr.3d 630, 642 (2009).
.....The statutory pleading requirements in the Code of Civil Procedure do not explicitly address the practice of incorporation by reference. Nor do the California Rules of Court specifically address incorporation by reference. One practice guide thus cautions that it generally is not good practice to incorporate by reference parts of other pleadings in the same lawsuit, although there is no rule against doing so.That resource acknowledges one noteworthy exception, however: “Cross-complaints for indemnification usually incorporate by reference the allegations of the complaint as a ‘shorthand’ way of showing the existence of the claim for which indemnification is sought.” Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) ¶ 6:239, p. 66..

3. "Notice" Versus "Fact" Pleading
p.138, insert new second paragraph, after "1986)." and before "The 50-year reign:"
.....In both pleading systems, pleading stage brevity is obviously preferred. A police officer's discrimination claim arguably violated the FRCP 8(a)(2) "short and plain statement" requirement. In Hearns v. San Bernardino Police Department, 530 F.3d 1124, 1139 (9th.Cir.2008), the majority held that district court abused its discretion by dismissing the first amended complaint with prejudice, solely because of its length (336 allegations, spanning more than a decade). The dissent tendered a short and plain response:

No doubt judges feel that they are doing a fine and charitable thing when they devote a great deal of time to an incompetently pleaded complaint, trying to turn a sow's ear into a silk purse.
.....The feeling of compassion, though, may be unjustified. The judge who does what the majority opinion says he ought to do with a complaint that violates Rule 8 is like a clerk in a grocery store displaying warmth and friendliness by chatting with the customer at the register, while a half dozen others stand seething in the slow line. The district court owes it to the other litigants in other cases as well as to the defendants to husband its resources for cases that are properly pleaded.
.....None of our disagreement goes to whether Hearns may litigate his civil rights claim. We are all agreed that dismissal of the 2005 complaint was indeed an abuse of discretion. The only reason ... was that it could hardly be seen, under the huge pile of garbage dumped on the court by the complaint and amended complaint in the 2003 case. What our dispute is about is whether the mandatory language of Rule 8 shall be followed, and whether a panel shall follow the binding precedents of our own court. Today's majority decision means that a district judge who conscientiously applies the rule and follows our precedents ... cannot count on us to do the same.

p. 139, add following update at end of last federal pleading paragraph, after "(2007).": In May 2009, the U.S. Supreme Court confirmed that it's ruling in Bell Atlantic applies to all federal cases governed by FRCP 8(a)(2). As stated in the Iqbal majority opinion in , the "working principles [that] underlie our decision in Twombly [aka Bell Atlantic include that] * * * only a complaint that states a plausible claim for relief survives a motion to dismiss." Ashcroft v. Iqbal, ___ U.S. ____, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). Four justices in Iqbal dissented on the related but distinct basis that the "majority then misapplies the pleading standard under Bell Atlantic Corp. v. Twombly, to conclude that the complaint fails to state a claim." Iqbal, 129 S.Ct., at 1955. Legislation has been introduced to overrule Iqbal's stringent application of the plausibility standard. In any event, California's code pleading standard is now more lenient than the federal standard (which disavowed the earlier Conley "no set of facts" standard).

p.139, insert new penultimate paragraph, after "demurrer.)" and before "The": Code pleading envisions a plaintiff pleading "ultimate" facts, but not "evidentiary" facts or "conclusions" of law. The relevant evidentiary facts should, instead, be developed during the discovery stage. For example, "a pleading is no place to quote, paraphrase, or even allude to the testimony of witnesses." Blickman Turkus v. MF Downtown Sunnyvale, 162 Cal.App.4th 858, 876 n.5, 76 Cal.Rptr.3d 325, 332 n.5 (2008). Conclusions of law (e.g., "The defendant was negligent") do not per se make a cause of action demurrable. They do not count among the allegations, however, that yield a viable complaint.

p. 152, at end of Note 6, add following third resource, after "2006).": What is required for pleading fraud against entity defendants? The plainitff must normally allege the names of the persons who made the representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. There are certain exceptions. “Less specificity is required when ‘it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy.’ ” Citizens of Humanity v. Costco Wholesale Corp., 171 Cal.App.4th 1, 20, 89 Cal.Rptr.3d 455, 471 (2009). The "group pleading doctrine" also assists plaintiffs suing an entity defendant. They may thereby directly "attribute collective statements made by a company to * * * [that defendant] company's individual board of directors." It is particularly useful for pleading alleged misrepresentations made in annual reports and press releases. Bains v. Moores, 172 Cal.App.4th 445, 470, 91 Cal.Rptr.3d 309, 329--330 (2009).

4. Demand for Judgment

....(b) Pleading Punitive Damages
p. 161, add to last bullet entry, after "425.13(a).": Although there is at least one caselaw exception (Fast Track cases---discussed in textbook Chapter § 5(C)(1), and a "facially reasonable ruling" by the trial court, the Court of Appeal declined to create another exception, which would have allowed a medical malpractice plaintiff to amend his complaint within nine months of the first date set for trial. Furthermore, the plaintiff did not necessarily satisfy the factors announced in the prior decision. Freedman v. Superior Court, 166 Cal.App.4th 198, 203, 82 Cal.Rptr.3d 563, 566 (2008).

p. 160, insert as first paragraph under subsection (b): Punitive damages are normally limited to "an action for the breach of an obligation not arising from contract." Cal. Civ. Code § 3294. They are not recoverable "even where the defendant has violated his or her obligations maliciously or in bad faith." Applied Equipment Corp. v. Litton Saudi Arabia, 7 Cal.4th 503, 516, 28 Cal.Rptr.2d 475, ___, 869 P.2d 454 (1994).

p. 161, add new penultimate bullet: o There is no uniform interpretation of the phrase “substantial probability.” It is included in at least thirty provisions of various California codes and has a variety of meanings depending on the particular statute at issue. The plain meaning of the term suggests it is comparable to “ ‘very likely’ ” or “ ‘a strong likelihood.’ ” of success on the merits. Jabro v. Superior Court 95 Cal.App.4th 754, 758, 115 Cal.Rptr.2d 843, ___ (2002).

p. 167, add following at end of Note 2, after "statute).": The Covenant Care availability of punitive damages in elder abuse cases applies equally to religious organizations. The CCP § 425.14 protections "are broader than those afforded to secular health care providers" by CCP § 425.13. Claims arising under the Elder Abuse and Dependent Adult Civil Protection Act "are rooted in conduct far more egregious than professional medical negligence." Little Company of Mary Hospital v. Superior Court, 162 Cal.App.4th 261, 265, 75 Cal.Rptr.3d 519, 520 (2008).

..............................................................................................................B. Responses
1. General Demurrer
p. 170, insert new paragraph, near top of page, after "(f)" and before "One.": Courts commonly take judicial notice of matters not mentioned in the complaint (or answer). As discussed in the Pomo Indians case at casebook page 172, trial judges may incorporate matters via judicial notice (without formal proof of the matter) per CCP § 430.30(a). The court may take judicial notice of an arguably contrary position taken by a party in a brief filed in Case One. However, there will be no resulting judicial estoppel, unless the contents are "totally inconsistent" with a position taken in Case Two. Morris v. Chang, 163 Cal.App.4th. 753, 757, 77 Cal.Rptr.3d 799, 803 (2008). Thus, a court may take judicial notice of such a document, but "the truthfulness and proper interpretation of the document are disputable." Unruh-Haxton v. Regents of the University of California, 162 Cal.App.4th. 343, 365, 76 Cal.Rptr.3d 146, 164 (2008).

p. 170, at end of last paragraph, just before 2. Special Demurrers: The California Supreme Court confirmed this principle, in its 2009 Sheehan v. San Francisco 49ers case: click here.

p. 171, add following new subsection entitled 3. Judicial Notice. [The remaining subsections will be renumbered 4-6]. It will begin after the line brake with the existing word "Regardless". On line 3, insert the following after the term "law.": California legislation thus permits judicial notice of matters including decisional, constitutional, and the statutory law of any other state; regulations and legislative enactments issued under the authority of the federal government; official acts of the legislative, executive, and judicial departments of both the federal and other state governments; the law of an intergovernmental organization, or the laws of foreign nations' public entities; and "[f]acts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute." Cal. Evid. Code § 452.
.....[Move following sentence of the existing text to become the topic sentence of a fresh paragraph]:
.....The term judicial notice is by no means self-evident. Recognized examples of proper judicial notice include a company's articles of incorporation; fictitious business name statements; campaign disclosure forms; and various briefs filed in other cases. Santa Barbara County Coalition Against Automobile Subsidies v. Santa Barbara County Ass'n of Governments, 167 Cal.App.4th 1229, 1234 n.3, 84 Cal.Rptr.3d 714, 718 n.3 (2008).
.....[The term "In the following case" becomes a new paragraph and continues with the existing text and Pomo Indians case].

5. Motion Practice
p. 179, insert new last paragraph: The CCP § 632 requirement, that a court issue a statement of decision as to each principle issue upon the request of any party, does not apply to motions---including those that are dispositive, involve an evidentiary hearing, and are appealable. Lien v. Lucky United Properties Investments, Inc., 163 Cal.App.4th. 620, 624, 77 Cal.Rptr.3d 707, 708 (2008) (citing contrary authority).

...............................................................................................................C. Answer
2. Affirmative Defenses
...(a) Generally
p. 181, bottom, immediately after "alone.": The plaintiff, on the other hand, must be aware of certain affirmative defenses that do not have to be pled to be in issue---even when not in any pleading. For example, "government tort immunity is jurisdictional and may be raised for the first time on appeal." Further, "[T]he general rule is that * * * governmental immunity will override a liability created by a statute outside of the Tort Claims Act.” Richardson-Tunnell v. School Insurance Program for Employees, 157 Cal.App.4th 1056, 1061 & 1063, 69 Cal.Rptr.3d 176, 180 & 182 (2007).

...(b) Statute of Limitations
p. 188: The length of a statute of limitations can vary widely, from decades to as short as 21 days. Stearn v. County of San Bernardino, 170 Cal.App.4th 434, 88 Cal.Rptr.3d 330 (2009).

p. 203, Note 1: The discovery rule may extend the statute of limitations, but can not shorten or decrease it. Cleveland v. Internet Specialties West, Inc., 171 Cal.App.4th 24, 88 Cal.Rptr.3d 892 (2009).

p. 204, Note 5: The delayed discovery rule does not apply to a cause of action for the unauthorized commercial use of another's likeness on a product label unless it was "published in an inherently secretive manner." Christoff v. Nestle USA, Inc., 47 Cal.4th 468, 97 Cal.Rptr.3d 798, 213 P.3d 132 (2009).

p. 204, Note 6(b): See also Unruh-Haxton v. Regents of the University of California, 162 Cal.App.4th 343, 76 Cal.Rptr.3d 146 (2008) (doctors in a local fertility clinic were accused of selling fertilized eggs and pre-embryos left for future use by their patients and there were over 100 news articles about the scandal).

p. 205-206: Federal courts distinguish statutes of limitations from statutes of repose in the same manner as do the state courts, as quoted in Burroughs. Balam-Chuc v. Mukasey, 547 F.3d 1044, 624 (9th Cir.2008).

p. 216, Note 1: The statute of repose for latent construction defects claims is discussed in Michael Paul Thomas, Spilling Over, L.A. Daily J. at 7 (September 9, 2009).

p. 216, New Note 2.5: Although equitable tolling did not apply in Lantzy as matter of law, where it might apply, the plaintiff must plead and prove: "(1) timely notice to defendants in filing the first claim; (2) lack of prejudice to defendants in gathering evidence to defend against the second claim; and (3) good faith and reasonable conduct by plaintiffs in filing the second claim." Tarkington v. California Unemployment Insurance Appeals Board, 172 Cal.App.4th 1494, 92 Cal.Rptr.3d 131 (2009).

p. 216, n. 3: Errata: The correct citation for the Servicemembers' Civil Relief Act is 50 App. USC § 526.
.....See Guevara v. Ventura County Community College District, 169 Cal.App.4th 167, 87 Cal.Rptr.3d 50 (2008) (plaintiff's filing in state court after claims were dismissed in federal court was timely under section 1367(d)).

p. 216 new Note 3a: The California Supreme Court addressed the application of equitable tolling arising from the pursuit of an alternate administrative remedy. Where exhaustion of an administrative remedy is mandatory prior to filing suit, equitable tolling is automatic. Equitable tolling is also available during pursuit of voluntary alternate remedies unless the text of a statute or a manifest legislative policy underlying the statute cannot be reconciled with the application of the doctrine. McDonald v. Antelope Valley Community College District, 45 Cal.4th 88, 84 Cal.Rptr.3d 734, 194 P.3d 1026 (2008) (holding that FEHA claims may be equitably tolled during the voluntary pursuit of a remedy through an internal grievance procedure).

p. 216, n.4: A Court of Appeal panel has also held that applying CCP § 351 to a California resident who moved out of state subsequent to the events that were the subject of the plaintiff's action would impose an impermissible burden on interstate commerce. It would force defendants to choose between remaining residents of California until the limitations periods expired or moving out of state and remaining subject to suit in the state forever. Heritage Marketing and Insurance Services, Inc. v. Chrustawka, 160 Cal.App.4th 754, 73 Cal.Rptr.3d 126 (2008).
.....Performance Question A on the February 2008 California Bar Examination required the examinees to draft portions of an memorandum of points and authorities in opposition to a demurrer to an action filed against an attorney for legal malpractice. The basic issue examinees had to address was the timeliness of the causes of actions under CCP § 340.6. The question, accompanying materials, and CBE-selected answers are available at: <http://www.calbar.ca.gov/calbar/pdfs/admissions/GBX/sf_0802_PT-Selected_Answers.pdf>.
.....
p. 216, Note 5: See Kaplan v. Mamelak, 162 Cal.App.4th 637, 75 Cal.Rptr.3d 861 (2008) (ordering discovery in a medical malpractice action to see how many days defendant physician had been absent from state, tolling time available to serve notice of intent to sue under CCP § 364).

p. 217, Note 6: The legislative history of the statute extending the statute of limitations for the revival of claims of sexual abuse is discussed in Doe v. Salesian Society, 159 Cal.App.4th 474, 71 Cal.Rptr.3d 565 (2008); and Dutra v. Eagleson, 146 Cal.App.4th 216, 222, 52 Cal.Rptr.3d 788 (2006). The many changes and revisions to CCP § 340.1 are fully reviewed in K.J. v. Roman Catholic Bishop of Stockton, 172 Cal.App.4th 1388, 92 Cal.Rptr.3d 673, review granted and opinion superseded, 97 Cal.Rptr.3d 272, 211 P.3d 1061 (2009); and Quarry v. Doe 1, 170 Cal.App.4th 1574, 89 Cal.Rptr.3d 640, review granted and opinion superseded, 97 Cal.Rptr.3d 271, 211 P.3d 1060 (2009).

p.217, Note 5: The continuing violation doctrine is not applicable to cases governed by the "single publication rule," as codified in Cal. Civ. Code § 3425.3. The statute applies to any action "for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture." Christoff v. Nestle USA, Inc., 47 Cal.4th 468, 97 Cal.Rptr.3d 798, 213 P.3d 132 (2009) (single publication rule applies to cause of action for unauthorized commercial use of likeness on a product label).

p. 218, Note 6, last paragraph: For another example where a court has harmonized different time- related requirements, see Roberts v. County of Los Angeles, 175 Cal.App.4th 474, 96 Cal.Rptr.3d 60 (2009). In Roberts, the Court of Appeal held that plaintiffs must comply with both the six-month statute of limitations in the Government Claims Act, Gov't Code § 945.6, and the three-year statute in MICRA, CCP § 340.5, when bringing actions for medical negligence against public entities. Even though the plaintiff's claim was timely under the Government Claims Act due to the application of a tolling provision, the complaint was properly dismissed when it was filed more than a year after the expiration of the three-year statute, the outer limit for bringing actions against all health care providers.

.....................................................................................................D. Amendments
1. General Practice
.....(a) "New" Claims
p. 219, add new sentence and cite after first full paragraph (that ends with "1990).": However, it is not just prejudice to the opposing party that must be considered. Allowing amendments, up to the time of trial, further necessitates that "even if a good amendment is proposed in proper form, unwarranted delay in presenting it may---of itself---be a valid reason for denial." O'Brien v. Camisasca Automotive Manufacturing, Inc., 161 Cal.App.4th 388, 73 Cal.Rptr.3d 911, 927 (2008), rev. granted and opinion superseded, 80 Cal.Rptr.3d 26, 187 P.3d 886 (2008).
.....Trial judges normally permit pleading amendments. Thus: " 'Great liberality should be exercised in permitting a plaintiff to amend' [because if] 'there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend' " [and leave ] 'to amend should be granted when the plaintiff has demonstrated a reasonable possibility that he or she can amend any of her claims to state viable causes of action ' " A judge "has every right to guard against sham pleadings and to prevent abuse of the litigation process." But she cannot be too restrictive, e.g., by demanding the production of admissible evidence as a condition of granting an amendment. Sanai v. Saltz, 170 Cal.App.4th 746, 768, 88 Cal.Rptr.3d 673, 689--690 & 691 (2009).

p. 226, new Note 6: Refer to the hypothetical, Chap. 1, Section E. Assume that Pam dies after eating the widgets served by Dan's Deli. The original complaint filed by her sole heir alleges a cause of action for wrongful death for injuries to the plaintiff heir. The applicable statute of limitations expires. Pam's heir subsequently files an amended complaint. It adds a survivor's cause of action based on injury to the decedent prior to her death. You are the trial judge. Should you allow or dismiss the amended complaint? What is the essential issue? Quiroz v. Seventh Avenue Center,
140 Cal.App.4th 1256, 1277, 45 Cal.Rptr.3d 222, 238 (2006).

.....(b) "New" Parties and Doe Defendants
p. 228, insert new paragraph near top of page between "5(D)(2)(a).)" and "In contrast": California's Doe defendant liberality is not without limits. Some decisions caution against delay. As stated in A.N., a Minor v. County of Los Angeles, 171 Cal.App.4th 1058, 1066, 90 Cal.Rptr.3d 293, 300 (2009).

Under [the Doe amendment statute], a new defendant may be added by amendment long after the original statute of limitations has expired, because the amendment is deemed to relate back to the filing of the original complaint. This is a statutory right of the plaintiff which has been considered by the courts not to be unfair to the defendant, even though as a practical matter it drastically extends the statute of limitations as to such defendant. [Para.] In our view, three lessons may be drawn from [the caselaw}: First, section 474 includes an implicit requirement that a plaintiff may not “unreasonably delay” his or her filing of a Doe amendment after learning a defendant's identity. Second, a defendant named in an action by a Doe amendment under section 474 may challenge the amendment by way of an evidence-based motion, which argues that the plaintiff “unreasonably delayed” his or her filing of the challenged amendment. Third, “unreasonable delay” * * * includes a prejudice element, which requires a showing by the defendant that he or she would suffer prejudice from plaintiff's delay in filing the Doe amendment.

................................................................................E. Truth in Pleading
1. Frivolous Pleadings
...(a) Vexatious Litigants
p. 235: For the procedure to seek removal from vexatious litigant status, see Luckett v. Panos, 161 Cal.App.4th 77, 91-92, 73 Cal.Rptr.3d 745, 755 (2008). The court provided a vivid description of the disorder apparently suffered by many of them:

To be sure, many vexatious litigants probably do suffer some sort of mental disorder, a fact that trial court staff around the state would appear to have first hand knowledge. * * * [But] it is perfectly imaginable that a very sane, if wrongfully-minded person---Conan Doyle's fictional Moriarty comes to mind---who would be perfectly willing to pursue a course of vexatious litigation in the course of some ulterior purpose.

* p. 236, insert new paragraph at bottom of page: What about vexatious appellants? California's appellate courts also possess the power to control vexatious behavior. In a contentious family law case, the child was placed in foster care. The father then filed thirteen in propria persona writs and appeals, all of which were determined adversely to him. As stated the Court of Appeals in its first impression decision In re R.H., 170 Cal.App.4th 678, 706--707, 88 Cal.Rptr.3d 650, 671 (2009):

We are not dealing with just any parent who appeals or seeks writ relief from a dependency court decision. Here, we have a parent who in propria persona and, despite the fact that he has court-appointed trial counsel, has in the last seven years filed an inordinate number of [unsuccessful] appeals and writ petitions. * * * [T]he court's focus is on the child's need for permanency and stability, not the parent's purported needs. Furthermore, * * * in five of those [appellate proceedings] * * * there was not even an arguable issue.

...(b) Vexatious Attorneys?
p. 241, new Note 4 (renumber remaining note): Can an attorney who represents himself obtain CCP section 128.7 frivolous pleading sanctions? See Musaelian v. Adams, 45 Cal.4th 512, 87 Cal.Rptr.3d 475, 198 P.3d 560 (2009).

p. 241, new Note 6: Should someone perviously declared a vexatious litigant be precluded from filing an appeal, when s/he is a defendant? See Mahdavi v. Superior Court, 166 Cal.App.4th 32, 82 Cal.Rptr.3d 121 (2008).

2. Anti-SLAPP Motions
.... (a) California Rule Established
p.243, insert after post-quote Vergos citation: Unlike summary judgment practice, the court may consider the parties' pleadings when ruling on this motion. This ruling is contrary to other decisions, which the court aptly construed as barring even verified pleadings. Salma v. Capon, 161 Cal.App.4th 1275, 74 Cal.Rptr.3d 873, 885 (2008). Like summary judgment, as well as motions for nonsuit and directed verdict, Paiva v. Nichols, 168 Cal.App.4th 1007, 1017, 85 Cal.Rptr.3d 838, 847 (2008) instructs that:

As is true with summary judgment motions, the issues in an anti-SLAPP motion are framed by the pleadings. * * * [But the] plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence. In reviewing the plaintiff's evidence, the court does not weigh it; rather, it simply determines whether the plaintiff has made a prima facie showing of facts necessary to establish its claim at trial.

p.244, insert following on the first line, after "(g).: In a case of first impression, the Court of Appeal has decided that neither case complexity nor narrowing the issues support an exercise of the statutory discretion to allow a late filing. The twin purposes of the 60-day period are to resolve this motion at the outset of the lawsuit, before the parties have undertaken discovery; and, to avoid tactical manipulation of the discovery stay envisioned by the anti-SLAPP statute. Platypus Wear, Inc. v. Goldberg, 166 Cal.App.4th 772, 787, 83 Cal.Rptr.3d 95, 100 (2008).

p.244, at the second full paragraph, which begins with "The anti-SLAPP," insert a new second sentence: The three methods for seeking anti-SLAPP motion fees are to: (1) simultaneously seek fees when litigating this motion; or (2) by a subsequent notice motion; or (3) as part of a cost memorandum when the litigation concludes. Melbostad v. Fisher, 166 Cal.App.4th 987, 992, 81 Cal.Rptr.3d 354, 358 (2008).

p.244, add following at end of post-quote text (that begins with "Garment"): When seeking to trigger the good cause requirement for discovery, relevance is a criterion, but not the only one. Citing Garment Workers, the Court of Appeal cautioned that to allow extensive discovery would subvert the intent of the anti-SLAPP statute's presumptive discovery bar. Therefore, "trial judges should refrain from ordering 'unnecessary, expensive and burdensome' discovery proceedings 'if it appears from the [anti-]SLAPP motion there are significant issues ... which the plaintiff should be able to establish without discovery...." Paterno v. Superior Court, 163 Cal.App.4th 1342, 1349, 78 Cal.Rptr.3d 244, 250 (2008).
.
p. 244, at end of paragraph starting with "The anti-SLAPP statute's mandatory attorney's fee" and ending with the term "2006).": But once a viable anti-SLAPP motion has been filed---and the plaintiff thus hopes to trigger California's liberal amendment procedure, with the purpose of avoiding a SLAPP dismissal---that liberality ceases. As stated in Schaffer v. City and County of San Francisco, 168 Cal.App.4th 992, 1005, 85 Cal.Rptr.3d 880, 890 (2008):

'[a]llowing a SLAPP plaintiff leave to amend the complaint once the court finds the [defendant's] prima facie showing has been met would completely undermine the statute by providing the pleader a ready escape from section 425.16's quick dismissal remedy.' If amendment was allowed * * * 'the SLAPP plaintiff will have succeeded in his goal of delay and distraction and running up the costs of his opponent.' The * * * 'omission of any provision in section 425.16 for leave to amend a SLAPP complaint was not the product of inadvertence or oversight.'

p. 245, immediately after indented quote citation (McGarry), add the following: The statutory word "public" spawned another problem of interpretation. In the relevant Supreme Court case, plaintiff urged that the anti-SLAPP statute should not be available to governmental entities. The Court responded that it applies "without regard to whether the statements were made by private individuals or governmental entities or officials." Vargas v. City of Salinas
46 Cal.4th 1, 18, 92 Cal.Rptr.3d 286, 297, 205 P.3d 207 (2009).

p. 253, Note 3, insert the following immediately at the end of the Note: Note that where the litgation privilege does apply, an attorney's settlement offer to opposing counsel is protected activity that is absolutely protected by the litigation privilege. GeneThera, Inc. v. Troy & Gould Professional Corp., 171 Cal.App.4th 901, 909, 90 Cal.Rptr.3d 218, 223 (2009). Further, "[t]he privilege is absolute and applies to all publications no matter how maliciously they were made." Bisno v. Douglas Emmett Realty Fund 1988, 174 Cal.App.4th 1534, 1550, 95 Cal.Rptr.3d 492, 507 (2009).

p.255, Note 8, add following as new (third and final) paragraph:
.....One must distinguish between the litigation privilege and the anti-SLAPP statute, both of which are addressed in Flatley. As explained in a useful passage penned by the California Court of Appeal:

The 'principal purpose of section 47[ (b)] is to afford litigants ... the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.' [While it was] 'originally enacted with reference to defamation, the privilege is now held applicable to any communication *** permitted by law in the course of a judicial proceeding to achieve the objects of the litigation' [italics added]. *** The scope of the protections afforded to litigation-related communications under the anti-SLAPP statute and that afforded by the litigation privilege are not identical. The two statutes ‘are substantively different statutes that serve quite different purposes.***. [I]t is the principal thrust or gravamen of the plaintiff's cause of action [designed to chill a defendant's constutional free speech] that determines whether the anti-SLAPP statute applies ***.'

Haneline Pacific Properties, LLC v. May, 167 Cal.App.4th 311, 318--319, 83 Cal.Rptr.3d 919, 925 (2008). .

p.256, new Note 13: Should the anti-SLAPP statute apply to a subpoena? The courts are divided. Some have sought (unsuccessfully) legislative guidance. See, e.g., Tendler v. www.jewishsurvivors.blogspot.com, 164 Cal.App.4th 802, 805, 79 Cal.Rptr.3d 407, 408 (2008). Should it apply to a church dispute between warring factions? See In re Episcopal Church Cases, 45 Cal.4th 467, 87 Cal.Rptr.3d 275, 198 P.3d 66 (2009).

... (b) California Rule Revised
p. 267, new Note 2(b): Not all commercial speech falls within the ambit of the commercial speech exemption from an anti-SLAPP motion. For example, Lawyer Two is sued by Lawyer One. One alleges that Two gave advice to a prospective client (previously One's client). Lawyer One's claim is for interference with prospective economic advantage and intentional interference with business relations. Lawyer Two brings an anti-SLAPP motion. Lawyer One responds that Lawyer Two is "primarily engaged in the business of selling or leasing goods or services." One therefore asserts that Two cannot bring an anti-SLAPP motion. However, when a claim arises from the Lawyer Two's conduct of giving advice to a prospective client on pending litigation, it is not sufficiently "commercial," so as to withdraw it from anti-SLAPP scrutiny. If it were, that result "would conflict with the client's fundamental right of access to the courts, which necessarily includes the right to be represented by the attorney of his or her choice. * * * [I]t may include an element of commerce or commercial speech [but it] is fundamentally different from the commercial disputes' the Legislature intended." Taheri Law Group v. Evans, 160 Cal.App.4th 482, 72 Cal.Rptr.3d 847 (affirming trial court grant of Lawyer Two's anti-SLAPP motion).

p. 268, insert new Note 6, for those professors wishing to cover both 425.17 exceptions: The California Supreme Court has decided that the anti-SLAPP statute's "public interest" exception applies: (a) only where the entire action is brought in the public interest; but (b) not if any part of the relief sought by the plaintiff seeks greater or different relief than that sought for the general public. Club Members For An Honest Election v. Sierra Club, 45 Cal.4th 309 , 86 Cal.Rptr.3d 288, 196 P.3d 1094 (2008).

.....(d) Conflict with Federal Law?
..............p. 270, after last term in top paragraph "B.A.P.2005).": As aptly articulated by a Ninth Circuit panel in a 2009 Paris Hilton claim: "Applying the familiar framework of Erie and its progeny, we have long held that the anti-SLAPP statute applies to state law claims that federal courts hear pursuant to their diversity jurisdiction. * * * [A]s the parties agree, the anti-SLAPP statute does not apply to federal law causes of action. * * * [A] federal court can only entertain anti-SLAPP special motions to strike in connection with state law claims. Hilton v. Hallmark Cards, 580 F.3d 874, 880 n.2 & 881 (9th Cir.2009).

F. Cross-Complaints
p. 282, Note on Cross-Complaints Against Third Parties: The California Supreme Court has reviewed the historic forms of indemnity and recognized that there are only two basic types of indemnity: express indemnity and equitable indemnity. Prince v. Pacific Gas & Electric Co., 45 Cal.4th 1151, 90 Cal.Rptr.3d 732, 202 P.3d 1115 (2009).

............................................................................................G. Special Joinder Devices
3. Intervention
p. 297, Note 1: See also Royal Indemnity Co. v. United Enterprises, Inc., 162 Cal.App.4th 194, 75 Cal.Rptr.3d 481 (2008) (applying standards for permissive intervention under CCP § 387(a)).

p. 298, new Note 5: California's statute for indispensable parties, CCP § 389, is a nearly verbatim version of FRCP 19. See Cook v. Superior Court, 161 Cal.App.4th 569, 73 Cal.Rptr.3d 895 (2008), where the court ordered dismissal of an action filed in Orange County Superior Court challenging the designation of a candidate on a ballot there. The Secretary of State, who was an indispensable party to such challenges, had not been named in the action; the only proper venue for naming the Secretary was Sacramento County. For an opinion assessing one party's motion under mandatory and discretionary intervention as well as the indispensable party doctrine, see Siena Court Homeowners Association v. Green Valley Corp., 164 Cal.App.4th 1416, 79 Cal.Rptr.3d 915 (2008).

4. Class Action
p. 298: The state's Administrative Office of the Courts has initiated an important empirical study of class action litigation. The Office of Research will be releasing a series of reports on different aspects of class action litigation in the state's courts. For example, the first report notes that class actions represent approximately one-half of one percent of the unlimited civil filings in the Superior Courts. Findings of the Study of Class Action Litigation, 2000-2006 (First Interim Report, March 2009). The report is available at: http://www.courtinfo.ca.gov/reference/documents/class-action-lit-study.pdf. See also Developments in the Law: Complex Litigation in California and Beyond, 41 Loy.L.A.L.Rev. 763–1096 (2008).

p. 309 Note 2: A concept closely related to the requirement of a community of interest is the need to be sure that the class can be ascertained:

"Ascertainability is required in order to give notice to putative class members as to whom the judgment in the action will be res judicata." " ‘Class members are "ascertainable" where they may be readily identified without unreasonable expense or time by reference to official records.' " In determining whether a class is ascertainable, the trial court examines the class definition, the size of the class and the means of identifying class members. A class is not inappropriate merely because each member at some point may be required to make an individual showing as to eligibility for recovery. Rather than focusing the ascertainability question on the ultimate fact class members would have to prove to establish liability, this element is "better achieved by defining the class in terms of objective characteristics and common transactional facts making the ultimate identification of class members possible when that identification becomes necessary."

Lee v. Dynamex, Inc., 166 Cal.App.4th 1325, 1344, 83 Cal.Rptr.3d 241 (2008) (citations omitted).

p. 309 Note 4: Assume that a private party has brought and then settled a representative suit on behalf of the public pursuant to Proposition 65 regarding certain allegedly dangerous waste sites. Does this settlement preclude another private party from bringing its own suit on behalf of the public regarding the same sites? The California Court of Appeal has held that preclusion applies because the parties are in privity with one another when they each act as enforcers of the public interest on behalf of the people of California. Consumer Advocacy Group, Inc. v. ExxonMobil Corp., 168 Cal.App.4th 675, 86 Cal.Rptr.3d 39 (2008).
.....The changes in representative suits due to Proposition 64 might affect the court's decision in whether or not a class action would be a superior device for adjudicating the claims. For example, in Harper v. 24 Hour Fitness, Inc., 167 Cal.App.4th 966, 84 Cal.Rptr.3d 532 (2008), the Court of Appeal reversed a trial court's decision to decertify a class. The trial court thought that a representative suit would be a better means to enforce the rights of the alleged victims, but the Court of Appeal explained that relief, in particular, restitution, could not extend beyond the named parties absent class certification. The California Supreme Court has held (4–3 decision) that, under Proposition 64, a private representative suit may be certified as a class action so long as the named plaintiff meets the standing requirement of having suffered an injury in fact. It is not necessary to show that each member of the class also has standing. In re Tobacco II Cases, 46 Cal.4th 298, 93 Cal.Rptr.3d 559, 207 P.3d 20 (2009). Also, an employee who sues an employer on behalf of himself and other employees under the unfair competition law, Bus. & Prof. Code § 17200 et seq., for Labor Code violations must satisfy class action requirements, but those requirements need not be met if the employee brings a representative action against the employer and seeks civil penalties under the Labor Code Private Attorneys General Act of 2004, Lab. Code § 2698 et seq. Arias v. Superior Court, 46 Cal.4th 969, 95 Cal.Rptr.3d 588, 209 P.3d 923 (2009).

p. 311, Note 5: The report, Findings of the Study of Class Action Litigation, 2000-2006 (First Interim Report, March 2009), calculates that the passage of the Class Action Fairness Act in 2005 has had some effect on the removal of class actions from state trial courts to federal district courts. The report notes that the rate of removal of class actions to federal court has increased from 6.6% to 19.2% of all class actions filed in the state courts. However, because the actual number of class actions filed in state court is comparatively small, the increased rate of removal does not seem to affect the actual docket load in any single Superior Court. Id. at 22-26.

p. 311 n. 7: The process for determining when and whether a class should be certified is reviewed carefully in In re BCBG Overtime Cases, 163 Cal.App.4th 1293, 78 Cal.Rptr.3d 257 (2008); and Ghazaryan v. Diva Limousine, Ltd., 169 Cal.App.4th 1524, 87 Cal.Rptr.3d 518 (2008).

p. 321, Note 3: Assume that the plaintiff in Hypertouch did not have standing to pursue the action against the defendant, but wanted to obtain precertification discovery to learn the identities of potential plaintiffs with standing who might be willing to represent the class of allegedly affected persons. Should such discovery be permitted? Compare CashCall, Inc. v. Superior Court, 159 Cal.App.4th 273, 71 Cal.Rptr.3d 441 (2008) (yes) with First American Title Insurance Co. v. Superior Court, 146 Cal.App.4th 1564, 53 Cal.Rptr.3d 734 (2007) (no). See Safeco Insurance Co. v. Superior Court, ___Cal.App.4th___, 92 Cal.Rptr.3d 814 (2009) (harmonizing CashCall and First American).

p. 322, Note 5: Assume that the defendants obtain summary judgment against the named plaintiff prior to class certification. May the defendants seek class certification after the court has decided the merits of the plaintiff's individual claim in order to bind absent class members to the ruling? See Ortiz v. Lyon Management Group, Inc., 157 Cal.App.4th 604, 69 Cal.Rptr.3d 66 (2007) (class certification should occur before the merits are adjudicated and a precertification decision on the merits does not bind absent class members).

p. 323, Note 1: If a statute requires opt in by potential plaintiffs in a collective action, it may not be brought under California's class action procedures. Haro v. City of Rosemead, 174 Cal.App.4th 1067, 94 Cal.Rptr.3d 874 (2009) (class action in state court impermissible because cause of action based on Fair Labor Standards Act of 1938, 29 USC § 216(b), which requires opt in by each potential plaintiff).

p. 323, New Note 7: If a case certified as a class action is settled, the parties must notify the class of the proposed settlement and the court must hold a hearing allowing class members to comment on or object to the settlement agreement. The court must then decide whether the settlement is fair and reasonable. The court then usually awards attorney's fees to the prevailing plaintiffs. These procedures are discussed in Chavez v. Netflix, Inc., 162 Cal.App.4th 43, 75 Cal.Rptr.3d 413 (2008) (upholding finding that settlement was fair); Clark v. American Residential Services LLC, 175 Cal.App.4th___, 96 Cal.Rptr.3d 441 (2009) (approval of settlement reversed because trial court lacked sufficient information to make informed evaluation of fairness of the settlement).