The Legislature’s (Temporary) Overhaul of the Demurrer Procedure

Author: Scripta Ad Astra Staff

A party in a civil action may object to a complaint, cross-complaint, or answer by demurrer. (See Cal. Code Civ. Proc. § 430.10.) Demurrers are typically filed when the responding party alleges the pleading fails to state a cause of action. Unless the complaint fails to state a claim based on any legal theory, and the defect cannot reasonably be cured by amendment, the court will give the responding party leave to amend. Subsequent amended pleadings are vulnerable to subsequent demurrers, and extend the time the case is pending. This motion work is expensive to litigants, and clogs the already over-burdened court system.
The Legislature passed amendments to the demurrer procedure effective January 1, 2016 through January 1, 2021, at which point the statute will self-repeal its provisions. (See Cal. Code Civ. Proc. §§ 430.41, 472, and 472a.) In most civil actions,[1][1] the parties are now required to engage in a specific meet and confer process before filing a demurrer. The court has the authority to order the parties to a conference to continue the meet and confer process. The amendments also create a “three-strikes-and-you’re-out” limit to the number of times a party can amend its complaint in response to a demurrer filed before the case is at issue, and place a new time limit on the responding party’s ability to file an amended pleading prior to the hearing on demurrer. Now, the amended pleading must be filed and served before the date for filing an opposition to the demurrer. The amendments also limit the grounds upon which a party demurrers to an amended pleading following a sustained demurrer to issues that could not have been raised by the prior demurrer.

Time will tell whether these amendments will provide a substantive filter to the demurrer process, and help decrease the court backlog in Law and Motion Departments.

[1][1] This section does not apply to the following civil actions: (1) An action in which a party not represented by counsel is incarcerated in a local, state, or federal correctional institution; and (2) A proceeding in forcible entry, forcible detainer, or unlawful detainer

Four Key Ways Attorneys Can Help an Expert Witness Perform their Best

Scripta Ad Astra is extremely pleased to present a guest post by Michal Longfelder, Esq.  Ms. Longfelder is an expert witness in the field of HR law and workplace investigations.

Author: Michal Longfelder, Esq.

We, as expert witnesses, often provide a necessary and critical part of your litigation strategy. By speaking to unique questions or facts, we can be a significant element of a successful outcome.


1. Know why you want me as your expert witness and for what purpose

Like most expert witnesses, while I can opine on a range of subject matters; I need to know exactly how I can be most helpful.  Take the time to learn about and understand my background so you are sure that I am best suited for this case.    For example, many attorneys do not realize that the HR function has evolved into specific areas of specialization and, as a result, many HR professionals no longer have a broad generalist background but rather, a narrow, expertise in a particular HR function such as organizational development.  If your case requires expertise in disability accommodations, make sure that the expert has substantial experience in that particular sphere of the HR function.

2. Retain me as a consultant in advance of retaining me as an expert

Many attorneys, in an earnest effort to keep litigation costs down, do not retain an expert until shortly before depositions begin.  By retaining me as a consultant early on and under your direction, earlier, we will both know how I view your case’s relative strengths and weaknesses without being subject to discovery.  Questions such as whether there are enough “good facts” to make it worth litigating are better answered sooner than later. Retaining me early as a consultant also affords you the opportunity to consider the settlement value of your case or whether my opinions have implications for other aspects of your litigation strategy.

When carefully selected and utilized, expert witnesses can strengthen your case to opposing counsel and a jury.   By planning in advance why, when and how to make the best use of my expertise and experience, you and your client will have confidence in the expert witness you have selected.

3. Take the time to prepare me for deposition

I am also an attorney, so counsel often assumes I do not require much, if any, prepping for deposition.  Here, you are the expert on the case and I need to learn from you.  Tell me about the weaknesses you perceive will be a challenge. Most importantly, tell me what questions I should expect from opposing counsel so I can think about how I will respond.

4. Think about my role at trial

Will you want me in the role of “storyteller” who summarizes the relevant information and provides guidance as to how the jury should assess and interpret the information presented by others?  Or would I be more useful testifying on a discrete but critical issue in the case?  Perhaps I will be part of building the facts necessary to effectively try or defend the case?  Finally, consider whether I will be more effective testifying for a shorter or extended period of time.


When carefully selected and utilized, expert witnesses can strengthen your case to opposing counsel and a jury.   By planning in advance why, when and how to make the best use of my expertise and experience, you and your client will have confidence in the expert witness you have selected.


Michal Longfelder, founder and principal of Employment Matters, is an employment attorney with an exclusive focus on workplace investigations, internal mediations and executive coaching.   She may be reached at WWW.EMPLOYMENTMATTERS-ML.COM

Tel: 415-297-3285


Will the new proportionality rule in federal discovery help plaintiffs or defendants? O’Connor v. Uber may be the first test.

Author: Michael S. Dorsi

Effective December 1, 2015, new amendments to Federal Rule of Civil Procedure 26 took effect. Notably, Rule 26(b)(1) now requires that discovery be “proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, . . . and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

Initial published responses viewed this rule as pro-defendant.[1] Some suggested that this was a rule designed to address large company versus company disputes not appropriate for other types of cases.[2] Plaintiff-side employment lawyers were particularly concerned because their cases often require defendants to disclose far more in discovery than their clients disclose.

However, it seems that the first high profile test of this new rule came out in favor of employment class action plaintiffs—at least at the magistrate judge level. In O’Connor v. Uber Technologies, Inc. (N.D. Cal. Case No.  13-cv-03826-EMC (DMR)), Uber propounded an interrogatory and five requests for production of documents concerning all communications with over 1,700 of the putative class members.[3]

Invoking the new proportionality requirement in Rule 26(b), Magistrate Judge Donna Ryu held that “ Uber’s wildly overbroad discovery requests fail Rule 26(b)’s proportionality requirements.”[4] Judge Ryu continued, “While Uber may be entitled to conduct discovery that is probative of the Borello factors, it may do so through appropriately targeted means, rather than calling for information about every class member contact with class counsel. Again, Uber fails to meet Rule 26(b)’s proportionality test.”[5]

Concerned employee-side plaintiffs lawyers should of course remain vigilant, but there is a lesson from O’Connor v. Uber concerning discovery. Deep-pocketed defendants will often try to outspend a plaintiff. The new proportionality requirement in Rule 26 can help individuals and less deep-pocketed litigants fight back.



[1] See, e.g., Henry J. Kelston, FRCP Discovery Amendments Prove Highly Controversial,, available at (discussing comments by Prof’s Paul Carrington and Arthur Miller)

[2] See, e.g., id. (“To the extent that excessive discovery costs are a problem, the problem exists in a very small percentage of high-stakes and, often, highly contentious cases.”)

[3] See O’Connor v. Uber Technologies, Inc. (N.D. Cal. Case No.  13-cv-03826-EMC (DMR)) (Dkt. No. 458.),

[4] Id. at p. 6:10–11.

[5] Id. at p. 7:8–11.

Controlling Your Client’s Web Presence is Key for Plaintiffs

Author: Katy M. Young

I had previously blogged about the dangers of blowing your defense (or even inviting a lawsuit) based on social media activities. This post will examine the importance of controlling your client’s web presence when your client is the Plaintiff. In a lawsuit, the Plaintiff usually has the harder job because it is Plaintiff’s burden to prove each element of her cause of action and her damages by a preponderance of the evidence. Defendants sometimes have an easier time since a verdict in Defendant’s favor can be achieved by knocking out elements of a Plaintiff’s claim. Evidence comes in many forms, and these days, the internet is fertile ground for evidence gathering.

Recently, I represented a Defendant in a lawsuit filed by someone he used to be very close to. The Plaintiff claimed millions of dollars in damages and even put on expert witness testimony to justify the multi-million dollar demand. Both parties had previously been very active internet users, but once he was named in the lawsuit, my client heeded my advice to shy away from social media lest he make matters worse for himself. Plaintiff’s lawyers were able litigators and I am certain that they gave their client the same warning, but their client did not listen. Perhaps she didn’t understand that information found online is akin to shouting the same message in ye olde public square. Perhaps she was lulled into believing her activities would go undiscovered because she didn’t use her real name as her username and the damning information was located on a dating website. Perhaps she underestimated Ad Astra Law Group’s abilities to track her online. What is certain is that Plaintiff posted information on her online dating profile which directly undercut her expert witness’ testimony about the extent of her damages. Perhaps she was lying to her potential dates about the true state of things. Perhaps she lied to the expert witness who rendered the opinion on her damages. What is certain is that she lied to someone, and all that mattered was that she lied. It didn’t so much matter whether what she posted was true, it was simply that what she posted contradicted her expert’s testimony on damages. Even if she could have proven that the Defendant was liable for her harm, the jury wouldn’t have known what to believe about the extent of her damages. The Plaintiff had badly damaged her own credibility. The case settled quickly after our online discovery.

A word to the wise: the web is the modern town square and anything you say there can come back to haunt you. Whether Plaintiff or Defendant, the best practice is to cease your online activity entirely- but don’t delete what you previously posted, for you may end up spoliating evidence…but that is a blog post for another time!

Attorney Communication – Sharing Your “Likes and Dislikes” to Improve Our Services

Author: Scripta Ad Astra Staff

At Ad Astra, we believe attorneys are not only professionals with extensive knowledge of the law, but also counselors and advisors to their clients.  We hope to constantly better our services by improving our communication skills, and by tailoring our services to our clients’ specific needs.  I recently attended a Continuing Legal Education course in which in-house counsel from various prominent businesses in the Bay Area explained their “likes and dislikes” regarding attorney-client communications.  The following is a list of some of the communication skills that all the speakers agreed on:

  • write brief, concise, and well-written analyses of issues;
  • respond to questions quickly;
  • provide regular updates on outstanding issues;
  • allow time to review documents by making internal deadlines, so they client can manage his or her schedule accordingly;
  • make the client’s life easier by preparing correspondence that can be forwarded to high-level executives; and
  • provide recommendations while also explaining risks, using the lens of the client’s mission.

We recognize that not all clients have the same communication preferences, and encourage all of our existing and prospective clients to share their own “likes and dislikes” with us because we believe that better communication always translates to better representation.

California Prison System Issues First of its Kind Policy in Response to Ad Astra Litagation

Author: Herman J. Hoying

Yesterday, in response to pro bono litigation handled by Ad Astra Senior Counsel Herman Hoying, the California prison system became the first in the country to issue a policy providing guidelines for sex reassignment surgery as a treatment option for transgender inmates.  Ad Astra, along with co-counsel the Transgender Law Center and Morgan, Lewis & Bockius LLP, represent two transgender inmates, Michelle-Lael Norsworthy and Shiloh Quine, seeking access to adequate medical care and equitable treatment under the Eighth and Fourteenth Amendments to the U.S. Constitution.

The State’s policy comes on the heels of two extraordinary victories in the lawsuits.  In April 2015, the Northern District of California issued an unprecedented preliminary injunction requiring the California prison system to provide Ms. Norsworthy with sex reassignment surgery “as promptly as possible.”  The State subsequently released Ms. Norsworthy on parole the day before the Ninth Circuit Court of Appeals was set to hear its appeal of that decision.  In August 2015, the State agreed to a settlement in Ms. Quine’s case, pursuant to which it agreed to provide her with sex reassignment surgery and to revise its policies with regard to sex reassignment surgery and transgender inmates’ access to gender-specific personal property.  The Quine settlement constituted the first time any state has agreed to provide sex reassignment surgery for an inmate.

Can Insiders be Guilty of Computer Hacking? Ad Astra attorney Michael Dorsi is interviewed

Among the questions posed in the Ninth Circuit Court of Appeals case of United States v. Nosal is whether a person can be convicted under an “anti-hacking statute” if they do not circumvent a technical or code-based access barrier. Ross Todd from The Recorder[1] interviewed Ad Astra associate Michael Dorsi and quoted Mr. Dorsi on the difficulty of defining a technical access barrier. The underlying events in the Nosal case took place in 2004. As stated in The Recorder:

Dorsi said one need only look at how long Nosal’s case has been pending to see the problem with tying CFAA allegations to some sort of technology-based standard.

Said Dorsi, “If we do end up with a ‘technological access barrier’ standard we will constantly be catching up with the question of ‘What is a barrier?’

In addition to its work on NovelPoster, Ad Astra Law Group presently represents workers’ compensation law firm Reyes & Barsoum in ongoing CFAA litigation in Los Angeles County Superior Court against another law firm, Knox Ricksen.

[1] Ross Todd, Nosal Appeal Could Extend Limits on Computer Hacking Law, The Recorder, October 16, 2015, available at

Computer Crime Returns to the Ninth Circuit Court of Appeal

Author: Michael Dorsi[1]

Tomorrow the United States Court of Appeals for the Ninth Circuit will hear argument in United States v. Nosal, a case testing the meaning of the federal computer crime laws.

Petitioner David Nosal was convicted of a felony for his participation in a conspiracy by former employees of the executive search firm Korn/Ferry. The trial court found Nosal guilty of violating the federal Computer Fraud and Abuse Act[2] (“CFAA”) because his co-conspirators[3] used a password belonging to a then-employee of Korn/Ferry. After a jury trial, the district court concluded that the co-conspirators’ access was not authorized, and that using a current employee’s password falls within the CFAA.

This is the third time that the Ninth Circuit will hear argument in this case. In 2011, a three-judge panel considered an appeal of the dismissal of several charges. That panel reversed the district court, but on review en banc in 2012, the Ninth Circuit reversed the panel decision and affirmed the district court’s dismissal of causes of action. That decision held that the CFAA only prohibited wrongful access to — not wrongful use — protected computers and material found on those computers. Judge Kozinski’s opinion for the en banc panel[4] suggested that the court was concerned about the broad reach of the statute, but stopped short of striking down the statute for unconstitutional vagueness and overbreadth. That opinion considered but did not conclude that circumvention of a technological access barrier would be required to find a CFAA violation.

Interestingly, one of the eleven judges from the en banc decision in 2012, Judge M. Margaret McKeown, is on tomorrow’s panel. And during the en banc oral argument, Judge McKeown engaged in a brief colloquy with defense attorney Ted Sampsell-Jones, attempting to distinguish the charges now on appeal from those on appeal during the 2011 oral argument. Judge McKeown and Mr. Sampsell-Jones considered an analogy between passwords and keys to doors. Judge McKeown appeared to be under the impression that the defendants had kept their working passwords — like keeping a key after leaving — when in fact they used the password of a current employee. The text of the exchange suggests that Judge McKeown may not be as supportive of the defense argument now as she was in 2011–12:

“Mr. Sampsell-Jones: I don’t think that’s quite the same as picking a lock or stealing.

Judge McKeown: Well the one who’s left, has a key that he or she didn’t, quote, turn in, so to speak.

Mr. Sampsell-Jones: No the one who’s left doesn’t have a key anymore. The one who has left gets the key consensually from the one who is still there.

Judge McKeown: That’s called hacking.”[5]

While a single question is not entirely useful in forecasting the outcome, it will be interesting to see if Judge McKeown revisits the same question tomorrow.

[1] Mr. Dorsi is an associate at Ad Astra Law Group, counsel for amicus curiae NovelPoster. NovelPoster’s brief can be found here. All briefs are available online on a page hosted by the Electronic Frontier Foundation.

[2] The Computer Fraud and Abuse Act is codified at 18 U.S.C. § 1030. Mr. Nosal was convicted for his violation of 18 U.S.C. § 1030(a)(4).

[3] There are also arguments about whether Mr. Nosal can be guilty by way of conspiracy for these actions. Those arguments will not fit into a brief blog post, but are addressed in the briefs.

[4] 676 F.3d 854 (9th Cir. 2012).

[5] Oral Argument, Nosal, supra, 676 F.3d 854, at 46:45–47:10, available at

Mike Dorsi Quoted in Daily Journal on Ninth Circuit Oral Argument in U.S. v. Nosal

Following Ad Astra’s work on the NovelPoster v. Javitch Canfield Group matter, David Nied and Mike Dorsi filed an amicus curiae brief in the Ninth Circuit to provide the Court with input on how their decision in U.S. v. Nosal could affect civil litigants. Shortly before the hearing, a reporter reached out to Mike and David. Mike’s comments were the last word in the article that ran on October 18, 2015. Mike’s bog posts about the oral argument can be found here.

Courts Say the Darndest Things II: Bill Cosby and Procedural Tricks

Author: Michael Dorsi

The Cosby case presented an unusual situation. The filings under seal were pending future review concerning sealing when the case settled. As a result, the Court did not rule until the Associated Press sought review years later.[1]

Settlements sometimes preserve confidentiality, but they cannot be relied on to happen at the right time. Sometimes litigants need to make a motion, and need to present the evidence they want sealed in order to provide adequate support for the motion. This can be a tricky situation for counsel.

The timing of motions permits state-court litigants more room to maneuver on noticed motions, at least compared to federal court litigants in the Northern District of California. California permits a party to file a redacted motion and conditionally lodge the un-redacted version of the motion under seal.[2]

Because the timing rules are the same for the motion to seal and any other motion other than summary judgment, the underlying motion often will be heard on the same or a later date than the motion to seal.

If the moving party prevails on the motion to seal, then that party is secure — at least for the time being. If the moving party loses a motion to seal, the filing under seal is returned to the moving party unless that party directs otherwise.[3] If the moving party also loses the underlying motion, then the moving party may be perfectly happy to have the moving papers not appear in the file. The difficult situation arises when the moving party prevails on the underlying motion but loses the motion to seal. At that point, the litigant must decide what is more important: obtaining relief on the motion or keeping the records out of public view.

Underlying Motion Granted, Motion to Seal Granted (moving party satisfied) Underlying Motion Granted, Motion to Seal Denied (moving party’s dilemma)
Underlying Motion Denied, Motion to Seal Granted (moving party maintains confidentiality) Underlying Motion Denied, Motion to Seal Denied (moving party has option to withdraw sealed papers)[4]


As a result, in California state court, a moving party that arranges the calendar well can guarantee that the motion to seal only matters if the party wins the motion.


In federal court, the Northern District’s local rules prevent this situation by employing an administrative motion process, which causes the motion to seal to be fully briefed in five days.[5] and that motion to be decided promptly, well before any ruling on the underling motion.[6]


[1] Memorandum Order (link)

[2] Cal. Rule of Court 2.551(b)(4).

[3] Cal. Rule of Court 2.551(b)(6).

[4] This blog post does not explore whether withdrawing such papers has an effect on preserving rights for appeal. As with any litigation decision, parties should consult with an attorney.

[5] N.D. Cal. L.R. 7-11.

[6] N.D. Cal. L.R. 7-11(c), 79-5(f).