Ca Bar 12 Civpro

Front 1

What are the three types of jurisdiction?

Back 1

(1) in personam (power over a person); (2) in rem (can adjudicate rights of all people over particular property); (3) quasi in rem (particular individuals and particular property)

Front 2

What does a quasi in rem judgment do?

Back 2

It does not bind a defendant personally, but only his rights to particular property

Front 3

What two types of jurisdiction does the court have to have before it can adjudicate a case?

Back 3

Both personal (over a person or a thing) and subject matter jurisdiction.

Front 4

What are the four statutory bases for in personam jurisdiction?

Back 4

(1) Defendant is present in the forum state and is personally served with process; (2) defendant is domiciled in the state; (3) defendant consents to jurisdiction (express or implied); (4) the long arm statute.

Front 5

Explain this basis for personal jurisdiction: defendant is present in the state

Back 5

The defendant can be transitorily present in a state so long as he is personally served. Fraud or force is invalid. If you are a party or witness in a judicial proceeding, you are immune. (Remember that CA does not give you this immunity)

Front 6

Physical presence in the state is one basis for jurisdiction, but doesn't apply if you're in the state as a witness. Does that exception apply in California?

Back 6

No

Front 7

Explain this basis for personal jurisdiction: domicile

Back 7

Domicile refers to the place where a person maintans his permanent home.

Front 8

What are the ways that a party can consent to personal jurisdiction?

Back 8

You can consent expressly, impliedly, or through a general appearance (except for a special appearance).

Front 9

Can you consent to personal jurisdiction before there is even litigation? How?

Back 9

You can give "advance consent" by contract or by appointment of an agent to accept service of process.

Front 10

What does California's long arm jurisdiction statute say?

Back 10

It's as broad as it can be. It gives the court power to exercise jurisdiction over any person or property so long as it's constitutional

Front 11

What are the three main requirments to determine whether jurisdiction is constitutional?

Back 11

(1) contact (minimum contacts, purposeful availment, foreseeability); (2) fairness (related to contacts, convenience, interest of the forum state); (3) due process (notice)

Front 12

What was the traditional and what is the modern rule for in personam jurisdiction?

Back 12

Traditionally, jurisdiction was based on the power to arrest the person (based on presence, residence, or consent) to force compliance with a judgment. The modern rule uses factors such as MINIMUM CONTACT and FAIRNESS. (Courts sometimes conflate fairness and contact.)

Front 13

Explain the CONTACT constitutional rules for the limits to long arm in personam jurisdiction

Back 13

D must have “minimum contacts” so jurisdiction is fair and reasonable. Contacts cannot be accidental; D must have purposefully availed himself of benefits and protections of California's laws. D must know or reasonably anticipate that his activities make it “foreseeable” that he might be “haled into court”.

Front 14

Explain the FAIRNESS constitutional rules for the limits to long arm in personam jurisdiction

Back 14

Overall: jurisdiction must not offend “traditional notions of fair play and substantial justice.” Factors: (1) claim relates to D's contacts (“specific jurisdiction”); (2) systematic and continuous activity in Calif. (“general jurisdiction”); (3 convenience (ie, not “gravely difficult and inconvenient”); (4) Calif. May have “legitimate interest”; (5) plaintiff's convenience; (6) Calif. Interest.

Front 15

What are the DUE PROCESS requirements for a constitutional exercise of long arm jurisdiction?

Back 15

Pretty minimal: a reasonable method needs to be used to notify the defendant of the pending lawsuit so he has an opportunity to appear and be heard

Front 16

Explain the rules for IN REM jurisdiction

Back 16

There are statutes providing for in rem jurisdiction for condemnation, title registration, estate assets, divorce, etc. Presence of property in the state is constitutionally sufficient. No in rem power over property outside the state. Persons who have interests must get at least notice by mail.

Front 17

Explain the rules for QUASI IN REM actions

Back 17

Two types (both need to meet minimum contacts standard): (1) disputes between parties over rights in the state (close connection between litigation and contact is minimum contacts); (2) disputes unrelated to property (mere presence of property is insufficient).

Front 18

What are the two main bases for federal court jurisdiction?

Back 18

(1) federal question and (2) diversity jurisdiction

Front 19

What is the rule for diversity jurisdiction in federal court?

Back 19

Rule of “complete diversity”: every plaintiff must be of diverse citizenship from every defendant. If one defendant and one plaintiff are co-citizens of the same state, no diversity. (It must also exceed the sum or value of $75,000.)

Front 20

What are the three exceptions to the complete diversity rule for federal court jurisdiction?

Back 20

(1) the federal interpleader statute (“minimal diversity”+$500 in controversy); (2) alienage jurisdiction (between a citizen and an alien, not not two aliens); (3) only applies when the action is commenced (not when cause arises or if parties move to the same state)

Front 21

For the purposes of diversity jurisdiction, what is the citizenship of a natural person?

Back 21

It depends on the permanent home to which he intends to return. The citizenship of a child is the same of his parents.

Front 22

For the purposes of diversity jurisdiction, what is the citizenship of a corporation chartered in the US?

Back 22

(1) State of incorporation; (2) principal place of business; (3) if physical operations predominantly in a state, then that state; (4) if in many states, then it's where the “home office” or “nerve center” is. This analysis is different from venue.

Front 23

For the purposes of diversity jurisdiction, what is the citizenship of a corporation chartered in a foreign country?

Back 23

It's an alien for diversity purposes, but if it has its principal place of business in this country, then it is also a citizen of the state in which that place is located.

Front 24

For the purposes of diversity jurisdiction, what is the citizenship of an unincorporated association?

Back 24

An unincorporated association, like a partnership or labor union, is a citizen of each state of which any member is a citizen.

Front 25

For the purposes of diversity jurisdiction, what is the citizenship of a legal representative?

Back 25

The legal representative of the estate of a decedent, infant, or incompetent is deemed to have the same citizenship as the decedent, infant, or incompetent.

Front 26

For the purposes of diversity jurisdiction, what how is citizenship for a class action determined?

Back 26

On the basis of the citizenship of the named members of the suing class.

Front 27

For the purposes of diversity jurisdiction, what is the citizenship of a nonresident US citizen or an alien?

Back 27

(1) A U.S. Citizen domiciled abroad is not a citizen of any state and is not an alien. (2) A permanent resident alien is a citizen of a state in which he is domiciled.

Front 28

What is the rule for collusion or devices to create or defeat diversity jurisdiction?

Back 28

If a party attempts to create diversity by a sham transaction, such as assigning a claim for collection purposes only, to create diversity, the court should look through the transaction and declare diversity fails

Front 29

What is the rule for class action plaintiffs who change states to create diversity jurisdiction?

Back 29

The named plaintiff has to have changed states genuinely and not just temporarily, but otherwise a named plaintiff can move and create diversity. It's ok.

Front 30

Is there a rule for defeating diversity jurisdiction by assigning a claim?

Back 30

No

Front 31

What is the rule for supplemental jurisdiction in federal court?

Back 31

The court can hear claims that wouldn't invoke federal question or diversity jurisdiction so long as the claims arise from a common nucleus of operative facts as the claim that invoked the satisfactory basis.

Front 32

What is are the jurisdictional rules when there is an intervenor in federal court?

Back 32

Under the federal supplemental jurisdiction statute, the intervenor can only proceed if he has an independent basis for jurisdiction (federal question, diversity, or supplemental). This is more restrictive than the traditional practice.

Front 33

What is the diversity jurisdiction rule when a party is substituted in federal court?

Back 33

The citizenship of the substituted party is disregarded. However, if a party is replaced (i.e., because the plaintiff sued the wrong party), then the citizenship of the replacement party controls.

Front 34

What is the general dollar limit rule for diversity jurisdiction in federal court?

Back 34

There must be at least $75,000 “in controversy”. The amount is determined from the plaintiff's good faith allegation, and can only be dismissed on this basis if there is no legal possibility that the plaintiff can get a judgment for this amount. It won't be retroactively defeated just because the judgment comes in for less.

Front 35

What defines “in controversy” for the purposes of the purposes of the dollar limit of the diversity jurisdiction statute?

Back 35

(1) Collateral consequences of the judgment itself can't be included, neither can interest or costs. (2) Anything else that the plaintiff has a right to recover under contract or substantive law can be included, however.

Front 36

What are the rules when a plaintiff wants to aggregate claims to meet the $75,000 limit for diversity jurisdiction?

Back 36

(1) Can aggregate all claims against a single defendant; (2) cannot aggregate against multiple defendants, unless they are jointly and severally liable and it's not from multiple claims; (3) several plaintiffs can aggregate only if they are enforcing a single title or common interest.

Front 37

Can you use claims under supplemental jurisdiction to aggregate to meet the $75,000 limit in diversity jurisdiction cases?

Back 37

Yes, but you can't use it to override the complete diversity requirement.

Front 38

Can you include a defendant's counterclaim amount to meet the $75,000 requirement in diversity cases?

Back 38

No. However, the defendant's compulsory counterclaim doesn't need to meet the jurisdiction dollar limit. But a permission counterclaim (arising out of an unrelated transaction) must have independent jurisdictional basis.

Front 39

Can the plaintiff remove a case from state court if the defendant makes a claim over $75,000? Explain.

Back 39

It doesn't matter if the counterclaim is compulsory or permissive, only the defendants in the lawsuit can remove.

Front 40

State the Erie doctrine.

Back 40

When the federal court sits in diversity, it should apply its own procedural law, however, it must apply the substantive law and the conflict of laws rules of the state in which it is sitting.

Front 41

Under the Erie doctrine, what do courts do if it isn't clear whether a state law is procedural or substantive?

Back 41

They use the “outcome determinative” test: a state law rule that substantially determines the “outcome” of the litigation must be applied. However, if a federal rule is “arguably procedural”, if will be applied. (Some state statutes have both substantive and procedural elements.)

Front 42

How does California resolve conflict of laws issues for tort claims?

Back 42

Governmental interest approach: (1) court determines whether law is identical; (2) if not, then does each state have an interest in application of law? (3) If so, there's a conflict and court weighs comparative impairments to each state.

Front 43

How does California resolve conflict of laws issues for contract claims?

Back 43

(1) Does choice of law clause cover all claims? (2) Is clause enforceable (does state have substantial relationship to parties, transaction, or other reason)? (3) If so, then does chosen state conflict with a fundamental CA policy? (4) If so, is CA's interest materially greater than chosen state?

Front 44

For California conflict of laws, if a contract doesn't have a choice of law provision (or is unenforceable), what law applies?

Back 44

The it uses the governmental interest approach, similar to the way it does for tort claims.

Front 45

What are some exceptions to diversity jurisdiction?

Back 45

Federal courts will not exercise diversity jurisdiction over domestic relations or probate (i.e., the actual probate or annulment of a will, or trying to reach property in state probate court's custody). This is for historical reasons.

Front 46

What is "minimal diversity"?

Back 46

It comes up in some multi party contexts (not all): one plaintiff must be of diverse citizenship of one defendant; the normal rule has a much higher diversity standard--absolute (between plaintiffs and defendants).

Front 47

How does the Multiparty, Multiforum Trial Jurisdiction Act of 2002 work?

Back 47

When at least 75 people have died from a single accident, then only minimal diversity is required: one plaintiff must be of diverse citizenship of one defendant. Plus one of following: (1) one defendant must reside in a different state from place of accident; (2) any two defendants are in different states; (3) accident was in different states.

Front 48

What is the key requirement to trigger federal question jurisdiction?

Back 48

The question must appear as part of plaintiff's cause of action; a defense based on federal law is not a basis for federal question jurisdiction. District courts have original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States.

Front 49

Can an implied federal right trigger federal question jurisdiction?

Back 49

Yes: it isn't essential that the federal statute expressly provide for a civil cause of action.

Front 50

Do federal corporations automatically get federal question jurisdiction? Explain.

Back 50

No. Just because a corporation was incorporated by an act of Congress isn't sufficient, unless the U.S. Owners more than 1/2 of the corporation's capital stock.

Front 51

Does the district court retain supplemental jurisdiction if all federal claims are dismissed and only state claims remain?

Back 51

The court can retain jurisdiction, but if the federal claims are dismissed before trial, then the district court should probably dismiss the state law claims too.

Front 52

Is there an amount in controversy requirement for federal question cases?

Back 52

No, with the exception that some cases brought by private parties under the Consumer Product Safety Act do have such a requirement.

Front 53

When can pendent parties jurisdiction arise in federal court?

Back 53

If (1) plaintiff sues more than one defendant, (2) there is federal jurisdiction over the claims against one defendant, and (3) the claim against the second defendant does not invoke federal question or diversity jurisdiction. (Might trigger supplemental jurisdiction if it arises from same nucleus of common facts.)

Front 54

What are some specific statutory grants of federal jurisdiction?

Back 54

(1) bankruptcy, (2) patent and copyright cases, (3) many where U.S. Is involved, (4) foreign states, (5) antitrust, (6) postal issues, (7) IRS cases, (8) SEC Act cases, (9) maritime.

Front 55

How does California's unified trial court system work?

Back 55

All counties have one superior court that exercises general subject matter jurisdiction over all civil matters (there used to be distinctions between superior and municipal court cases).

Front 56

What are the two jurisdictional classifications in California superior courts?

Back 56

(1) Limited civil cases: amount in controversy is less than $25,000, and there are restrictions on jurisdiction over equitable claims, declaratory relief, and ancillary relief; (2) unlimited civil cases: amount in controversy >$25,000, and there is a greater range of other relief available. Aggregation rules are similar to federal rules.

Front 57

What is the small claims configuration in California?

Back 57

There's a division of the superior court, and it governs claims of less than $7,500 in an action brought by an individual.

Front 58

What's the standard for reclassifying an unlimited civil case as a limited one in California?

Back 58

A party, or the court on its own motion, on notice and a hearing, must determine than an amount greater than $25,000 is “virtually unobtainable.” To convert from limited to unlimited, you have to establish there is a “possibility” the verdict is > $25,000.

Front 59

Will the clerk reclassify a claim as unlimited on an amended complaint? Explain.

Back 59

If the plaintiff files an amended complaint that changes the jurisdictional classification, the clerk simply reclassifies. If a demand in a cross complaint exceeds d$25k (or asks for relief not avail in limited), then the entire action is reclassified.

Front 60

What's the difference between subject matter jurisdiction and venue in federal court?

Back 60

Jurisdiction is just the power of the court, venue refers to the specific district. Venue can be specified by contract, subject matter jurisdiction cannot.

Front 61

What are the three rules for venue in federal court?

Back 61

Venue is proper: (1) in a district where any defendant resides, if all defendants reside in the same state; (2) the district where a “substantial part of the events or omissions” or “substantial part of property” is situated; or (3) (for diversity jurisdiction) where any defendant was subject to personal jurisdiction OR (other actions) where any defendant may be found.

Front 62

For the purposes of federal venue, what is residence for an individual, a corporation, and an unincorporated association?

Back 62

(1) Individuals: venue is determined by domicile; (2) corporations: deemed to reside in any jurisdiction in which is it subject to personal jurisdiction; (3) others: where they do business.

Front 63

Can you waive improper venue in federal court?

Back 63

Sure. Venue is waived unless there is a timely objection to improper venue.

Front 64

What is the standard for transferring venue in federal court?

Back 64

In “the interest of justice.” The transferee forum must have subject matter jurisdiction and in personam jurisdiction over the defendant, and venue must be proper.

Front 65

Discuss transitory action vs. local action

Back 65

Common examples of transitory actions are lawsuits brought to recover damages in breach of contract or tort actions. Transitory actions are distinguishable from local actions, which can be brought only where the subject matter of the controversy exists. For example, the classic type of local action is one in which title to real property will be directly affected by the judgment of the court. Such actions generally must be tried in the county where the particular property is located.

Front 66

What are the rules for venue in California?

Back 66

Transitory action: venue is proper in the county in which any defendant resides. If no defendant resides in CA, then any county. Contract actions: in addition where obligation should be performed or contract was entered. Personal injury: also where the injury occurred.

Front 67

What if venue has competing rules in California?

Back 67

These are called mixed actions—the defendants or causes of action are subject to different venue rules. Venue is proper in the county in which any defendant resides, unless policy or another compelling reason requires a different county.

Front 68

What is the right venue for an action against a corporation, assoc., or partnership?

Back 68

Where the contract is made, to be performed, where an obligation or liability arises, where the breach occurred, or where the corporation's principal place of business is. The rules for unincorporated associations is the same.

Front 69

What about a forum selection clause in California?

Back 69

Venue selection clauses are unenforceable in California. However, they will enforce a clause requiring the action to be tried in another state.

Front 70

What are the rules for removal jurisdiction?

Back 70

Only defendant may remove, and they must all join petition for removal. The federal court must have independent jurisdiction, and for a diversity-based removal, no defendant can be a citizen of the state where the case was filed.

Front 71

What are the removal timing rule w/r/t to removal jurisdiction?

Back 71

Prevailing rule is that federal court jurisdiction is tested as of the date of removal, but some courts require it to exist at both the time of suit AND time of removal.

Front 72

What is the proper venue in the case of removal jurisdiction?

Back 72

Venue lies in the district court “embracing the place where such state action is pending.”

Front 73

What is the rule for removal jurisdiction when there are multiple claims or multiple parties?

Back 73

A defendant may remove a whole case if it contains “a separate and independent claim or cause of action” within federal question jurisdiction.

Front 74

What happens to removal jurisdiction if a nondiverse party is dismissed?

Back 74

If a nondiverse party gets dismissed, then removal is permitted so long as there is actually complete diversity

Front 75

What are the procedural rules for removal?

Back 75

Within 30 days of service, the defendant must file a notice of removal in the district court in the district + division in which the state action was pending. A cop of the notice needs to be sent to the other parties and the state court. The removal can never be more than one year after the case was filed.

Front 76

What is remand?

Back 76

Plaintiff can move the district court to remand a removed federal case. A case will be remanded if there is no federal jurisdiction.

Front 77

What are the two primary grounds for abstention?

Back 77

(1) if the state law is unclear and could be interpreted to avoid a federal constitutional question, or (2) if there is a state administrative regulatory plan that would be disturbed if the federal court took the case.

Front 78

What is the procedure for abstention?

Back 78

After a federal court abstains, the litigants must present their issues to the state court. The federal court will ordinarily stay the federal action rather than dismiss it.

Front 79

After abstaining, when will a federal court intervene?

Back 79

Party must demonstrate: (1) great an immediate irreparable injury; (2) bad faith in prosecuting the state action; (3) harassment or other unusual circumstance calling for federal equitable relief.

Front 80

What's the procedural device required to initiate a lawsuit?

Back 80

An action is commenced by filing a complaint; the filing satisfies the statute of limitations.

Front 81

How must service be made on an in state defendant in federal court?

Back 81

Any person not a party who is at least 18 years old can serve process. Effective: personal service, service at defendant's usual place of abode, or service on an authorized agent. Also: state rules or waiver provisions of 4(d).

Front 82

How must service be made on an in state defendant in state court?

Back 82

(1) Personal delivery, (2) substituted service (leaving a copy of summons and complaint at authorized locations w/ specific individuals, followed by mailing), (3) service by mail, and (4) service by publication. If defendant doesn't acknowledge receipt of mail, he is liable for costs.

Front 83

How must service be made on an out of state defendant in federal court? [REVIEW THIS]

Back 83

(1) Under the state's statutes and rules for extraterritorial service, (2) if they are 3rd party defendants or req'd to be joined (if service w/ 100 miles of court), (3) when out of state service is permitted by fed. Statute. For a federal question claim, the defendant needs only have minimum contacts w/ US.

Front 84

How must service be made on an out of state defendant in California court?

Back 84

Service of process can be made on a person outside of California by first class mail, postate prepaid, requiring return receipt. Of course, you still need a proper statutory and constitutional basis for personal jurisdiction.

Front 85

Do California courts recognize immunity from service of process? Do federal courts?

Back 85

California courts do not, federal courts do.

Front 86

What is immunity from service of process?

Back 86

When parties, witnesses, and attorneys enter the state to appear in another action, they are immune from service of process for another action. Federal courts recognize this, California state courts don't.

Front 87

What is a preliminary injunction and which courts will grant one?

Back 87

In both federal and California courts, a party may seek a preliminary injunction prior to trial to preserve the status quo. Adverse party must get notice and an opportunity to be heard.

Front 88

What's the difference between a TRO and a preliminary injunction?

Back 88

A TRO is usually granted before a preliminary injunction because of the latter's notice requirements. The TRO can be ex parte, but there's a 14 day limit.

Front 89

What are the procedural requirements for a TRO in federal court?

Back 89

A TRO can be granted leading up to a preliminary injunction hearing. Can be granted without notice for 10 days max if: (1) moving party states specific facts in an affidavit or verified complaint of irreparable injury, (2) certified writing about efforts made to notify adverse party, (3) provides security to pay for any damages if wrongfully restrained.

Front 90

What are the differences between a TRO in federal court and in California?

Back 90

(1) The TRO does not have time limit (14 days in fed. ct.); it expires automatically when preliminary injunction is issued or denied. (2) If there was no notice to adverse party, court sets hearing on preliminary injunction w/in 15 days of TRO (up to 22 days on good cause). (3) Can issue a TRO without a bond or undertaking

Front 91

What pleading standard is required in federal court? California courts?

Back 91

Federal courts follow notice pleading; state courts use fact (code) pleading.

Front 92

What must the complaint state in federal court?

Back 92

(1) Grounds for federal jurisdiction; (2) A short statement of the claim showing that the pleader is entitled to relief; (3) A demand for judgment or relief, which may be in the alternative.

Front 93

What must the complaint state in a California state court?

Back 93

(1) Statement of facts constituting the cause of action (in ordinary and concise language) and (2) a demand for judgment for relief to which the pleader claims he's entitled. There's a special rule for damages.

Front 94

If a complaint filed in California state court seeks damages, what must it do?

Back 94

The amount must be stated, except if the action is to recover actual or punitive damages in a personal injury or wrongful death case. (The defendant can then request the plaintiff to serve a statement describing the nature and amount of actual or punitive damages sought.)

Front 95

State the seven federal Rule 12(b) pre-answer motions that the defendant can file?

Back 95

(1) Lack of subject matter jurisdiction; (2) lack of personal jurisdiction; (2) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a claim; (7) failure to join an indispensable party (Rule 19).

Front 96

Of the seven federal Rule 12(b) motions, which can be raised at any time (even on appeal)

Back 96

Lack of subject matter jurisdiction

Front 97

Of the seven federal Rule 12(b) motions, which will be deemed to be waived if not raised in a motion or answer (whichever is filed first)?

Back 97

(1) Lack of personal jurisdiction; (2) improper venue; (3) insufficiency of process; (4) insufficiency of service of process.

Front 98

Of the seven federal Rule 12(b) motions, which can be raised anytime before trial or even at trial?

Back 98

(1) Failure to state a claim upon which relief can be granted; (2) failure to join an indispensable party.

Front 99

How is California practice similar and different to federal Rule 12(b), generally?

Back 99

It's similar to Rule 12(b), but instead of filing an answer the defedant can file a general or special demurrer to the entire complaint (or any actions contained therein).

Front 100

What are the grounds for a general demurrer in California?

Back 100

(1) The pleading fails to state facts sufficient to constitute a cause of action; (2) the court lacks subject matter jurisdiction.

Front 101

What are the grounds for a judgment on the pleadings in California?

Back 101

It's identical to a general demurrer: (1) The pleading fails to state facts sufficient to constitute a cause of action; (2) the court lacks subject matter jurisdiction.

Front 102

What are the grounds for a special demurrer in California?

Back 102

(1) lack of legal capacity; (2) there's another pending action; (3) defect or misjoiner of parties; (4) uncertain pleading (like a motion for more definitive statement in federal practice); (5) failure to plead whether a contract is oral or written; (6) failure to file certain required certificates.

Front 103

What is the rule for California courts when considering a demurrer?

Back 103

They must consider only the material allegations in the complaint, which the court must take to be true, and matters subject to judicial notice.

Front 104

Can a plaintiff file a demurrer to a defendant's answer in California state court?

Back 104

Yes.

Front 105

What is the motion to quash service of summons?

Back 105

It's the most common procedural for objecting to the court's exercise of personal jurisdiction. If the defendant files it before or at the same time as filing an answer, demurrer, or motion to strike, the defendant preserves the jurisdiction objection.

Front 106

What happens if a defendant raises an objection to personal jurisdiction in an affirmative defense?

Back 106

If that's the only time they do it (and don't file a motion to quash), then the defendant can't continue to litigate and then raise the objection at or close to trial.

Front 107

How do you move for a more definitive statement in federal court and California court?

Back 107

Before responding to a pleading that's vague, the defendant can move for a more definitive statement. The California equivalent is a special demurrer on the ground that the pleading is “uncertain” (standard: ambiguous or unintelligible).

Front 108

What is a motion to strike (+rule)?

Back 108

Before responding to a pleading, a party can move to strike any insufficient defendant or any redundant, immaterial, or scandalous matter.

Front 109

Explain an anti-SLAPP motion to strike

Back 109

If defendant makes threshold showing that the complaint arises from a protected activity (e.g., free speech), the burden shifts to plaintiff to show probability of prevailing on the merits. There are exemptions for actions in public interest and against sellers of goods or services who make representations about their business or competition.

Front 110

What does the answer have to do in federal court?

Back 110

It must contain a specific denial or admission of each averment, or a general denial with specific admissions. Defendant can state that he is without knowledge or information sufficient to form a belief. Failure to deny is an admission. It must state any affirmative defenses the defendant may have.

Front 111

What are the deadlines for responding to a complaint in federal court?

Back 111

(1) If no Rule 12 motion, 20 days if defendant was formally served; 60 days if mailed and waives formal service. (2) If Rule 12 motion, answer must be within 10 days of denial of Rule 12 motion. (3) For granted Rule 12(e) motion (more definitive statement), 10 days.

Front 112

What does the answer have to do in California courts?

Back 112

Defendant can file a general denial or can file specific denials to deny particular paragraphs or parts of the complaint. If the plaintiff filed a verified complaint, the defendant must respond with a verified answer. Affirmative defendants must adhere to the same fact-pleading standards.

Front 113

What are the deadlines for responding to a complaint in California court?

Back 113

(1) Defendant has 30 days. (2) If defendant files demurrer or motion to strike, which are denied or overruled, then defendant has 10 days (running from date of service of the court's ruling).

Front 114

When can the court's clerk enter a default in federal court?

Back 114

If (1) plaintiff's claim against the defaulted defendant is for a “sum certain” (2) the default is entered because the defendant failed to appear; (3) defaulted defendant is not an infant or incompetent person.

Front 115

When can the court's clerk enter a default in California court?

Back 115

(1) Action arises out of a contract or judgment; (2) action is for a sum certain; (3) defendant was not served by publication.

Front 116

What do California courts call a counterclaim?

Back 116

A cross-complaint

Front 117

What is the difference between a compulsory and permissive counterclaim?

Back 117

If a claim arises from the same transaction or occurrence as the plaintiff's claim, then it must be pleaded as a counterclaim or thereafter barred. A permissive counterclaim is any other claim. Federal courts do not automatically have supplementary jurisdiction over permissive claims, but they do over compulsory claims.

Front 118

Can a party set out alternative or inconsistent claims in the pleadings?

Back 118

Yes. The party may set out as many alternative claims or defenses as he may have, regardless of consistency.

Front 119

What is the rule for when a reply (as in a reply at the pleading stage) is required?

Back 119

Plaintiff is only required to reply when the defendant's answer contains a counter claim (and it has to be denominated as such). It must be served w/in 20 days of service of the answer or w/in 20 days of court order.

Front 120

Do plaintiffs file replies to cross-complaints in California?

Back 120

No, they file answers to the defendant's cross-complaint

Front 121

When can you amend a pleading in federal court?

Back 121

Once, as a matter of course, before a responsive pleading is served. Or, if no responsive pleading is required, within 20 days of service of the pleading. Otherwise, by consent of the other party or permission of the court, which is liberally granted.

Front 122

When can you amend a pleading in California state courts?

Back 122

You can amend once as a matter of right before an answer or demurrer, or after demurrer and before trial on any issue raised in the demurrer. You can amend with court's permission, which is liberally granted (but the rules don't say anything about permission of the parties).

Front 123

What are the general factual patterns you'll find in relation back when amending pleadings?

Back 123

(1) an amendment to add a new cause of action against a defendant already named (this isn't too hard with some specific requirements); (2) an amendment to add a defendant to the case; (3) relation back for a “misnomer” (mistaken corporate identity); (4) “Doe” defendants.

Front 124

What is the general rule for the relation back doctrine when adding a new cause of action against a defendant already named?

Back 124

If the new cause of action is based on the same general set of facts as those in the original complaint, the amended complaint will relate back to the date of filing the original. Some courts also require: (1) the amended pleading must also involve the same accident and injuries; (2) it must refer to the same offending instrumentality.

Front 125

What are the general rules for relation back when a plaintiff wants to add a defendant to the case?

Back 125

If the statute of limitation hasn't run and the plaintiff can amend (through leave, permission, or otherwise), then the answer is generally is yes. If the statute has not run, then generally no. There's an exception for mistaken identities (with a lot of wrinkles, namely that the other party won't be prejudiced).

Front 126

State the mistaken identity exception to the general rule that relation back doesn't apply when plaintiff wants to add a defendant after the SoL has run.

Back 126

In federal and California courts, the relation back doctrine will apply if it relates to the same conduct, transaction, or occurrence as the original pleading and within 120 days of the original complaint: (1) the adverse party received such notice that he won't prejudiced on the merits and (2) knew or should have known that, but for a mistake about the proper defendant's identity, the suit would have been against him.

Front 127

State the “misnomer” exception in California to the general rule that relation back doesn't apply when plaintiff wants to add a defendant after the SoL has run.

Back 127

In California, a plaintiff can be corrected to identify a misnomer in naming a defendant, even if the SoL has already run. This is because related corporations often have similar names.

Front 128

What is the “John Doe” and “Jane Doe” procedure in California for substituting defendants?

Back 128

(1) Original complaint must be filed within the SoL charging all defendants, including the Does; (2) plaintiff must be genuinely ignorant of the identity of the fictitious defendant, the facts giving rise the cause of action, or of the fact that the law provides a cause of action; (3) plaintiff's ignorance must be in the complaint. These prongs give the plaintiff three years to discover their identity and serve and amended complaint.

Front 129

What is the Rule 11 certification requirement in federal court?

Back 129

By presenting court with a pleading, written motion, or paper, you certify to the best of knowledge after a reasonable inquiry: (1) paper is not for any improper purpose; (2) warrant by law or modification of law; (3) facts have evidentiary support; (4) denials are supported by evidence or based on reasonable lack of information.

Front 130

What is the procedure for Rule 11 sanctions in federal court?

Back 130

Court has discretion. Two ways: (1) court may sua sponte enter order describing matter and directing attorney to show cause; (2) opposing party may serve a motion, and if proponent of the paper doesn't correct or withdraw within 21 days, then they can file a motion with the court.

Front 131

What is California's statute on sanctions (the one similar to Rule 11) and three extra wrinkles?

Back 131

It's almost identical to Rule 11. Important distinctions: (1) court must assess whether party seeking sanctions has exercised due diligence; (2) 21 day safe harbor applies to both the opposing party and the court; (3) an improper sanctions motion is itself subject to sanctions.

Front 132

What is the rule for compulsory joinder of a party?

Back 132

If a party is “needed for just adjudication” is amenable to process AND his joiner won't destroy diversity or venue, he must be joined. A party is needed if: (1) complete relief can't be given to existing parties without him; (2) disposition might impair his ability to protect his interest; OR (3) his absence would expose existing parties to substantial risk of double or inconsistent obligations.

Front 133

What if joinder of a party isn't feasible?

Back 133

The court must decide whether the action can proceed in the party's absence or must be dismissed. Factors: (1) will it prejudice the other party or existing parties? (2) can the court shape the judgment to reduce prejudice? (3) will judgment w/o party be adequate? (4) whether plaintiff will be deprived of an adequate remedy?

Front 134

What if a plaintiff has a number of claims against a defendant?

Back 134

The plaintiff can join any number and type of claims against a defendant.

Front 135

What is the rule when there are multiple plaintiffs or defendants and they want to join claims?

Back 135

In federal court, at least one of the claims has to arise out of a transaction in which all the parties were involved. In California, a common question of law or fact must be present. But keep in mind that federal question jurisdiction requires that the nonfederal claim can only be joined it comes from the same case or controversy as the federal claim.

Front 136

Under Rule 23, when is a class action proper?

Back 136

(1) the class is so numerous that joinder of all members is impracticable; (2) questions of law or fact common to the class; (3) named parties' interests are typical of the class; (4) named parties will adequately represent the class; AND (5) one of these: (a) separate actions risk inconsistent results; (b) def. Has acted or refused to act on grounds applicable to the class and injunctive relief is appropriate to whole class; (c) common questions of law or fact predominate

Front 137

What are considerations for the court in the timing of class certification?

Back 137

Court should determine as soon as practicable whether to certify, but can determinate a class is not appropriate at any time.

Front 138

What are the factors for the court in deciding whether to certify a class?

Back 138

(1) interests of individual control; (2) extent and nature of other litigation on the same subject; (3) desirability of a joint trial; (4) difficulties in managing a class action.

Front 139

What must the court do when certifying a class?

Back 139

Court must define the class and the class claims, issues, or defenses. It must also appoint class counsel, who must fairly and adequately represent the interests of the class.

Front 140

What is the effect of judgment in a class action?

Back 140

All members of the class will be bound by the judgment, except those in a common question class action who notify the court that they do not wish to be bound.

Front 141

What happens to the class if the substantive claim of the lead plaintiff in a class action is mooted?

Back 141

Nothing, the rest of the class action is not rendered moot.

Front 142

What notice is required in class actions?

Back 142

Notice to all members is required only in common question suits (members can opt out); it's discretionary otherwise. Notice must state: (1) nature of the action; (2) definition of the class; (3) class claims, issues, or defenses; (4) binding effect of judgment.

Front 143

What are the jurisdictional considerations in class action suits in federal court?

Back 143

For those founded on diversity, only the citizenship of the named representatives of the class is considered. One class representative's claim must exceed $75,000 (can generally aggregate all class members' claims).

Front 144

What are five important points where courts get involved in class action suits?

Back 144

(1) Court must approve dismissal or settlement; (2) class must satisfy certification before court can approve; (3) notice must be given; (4) in “common question” actions, court MAY provide second opportunity to opt out; (5) a fairness hearing must be held.

Front 145

List the important provisions of the Class Action Fairness Act (“CAFA”).

Back 145

Subject matter jurisdiction is established if: (1) any class member (not just lead plaintiffs) is diverse from any defendant; (2) amount in controversy (in aggregate) exceeds $5 million; (3) there are at least 100 members.

Front 146

What are the removal rules under the Class Action Fairness Act (“CAFA”)?

Back 146

Any defendant (not just all defendants) may remove. The case may be removed even if a defendant is a citizen of the forum.

Front 147

What are two important exception to the subject matter jurisdictional rules of the Class Action Fairness Act?

Back 147

If the primary defendants are states, state officials, or other governmental entities against who the court might be foreclosed from ordering relief. Also, if the action solely involves a claim under the federal securities laws that relates to the internal affairs of a corporation and is based on the laws of the state of incorporation.

Front 148

Under what three conditions MUST a district court decline jurisdiction under the Class Action Fairness Act (“CAFA”)?

Back 148

If (1) more than two-thirds of the members of the class a citizens of the state in which the action was filed; (2) a defendant from who “significant relief” is sought is a citizen of the state; and (3) the “principal injuries” were incurred in the state where the action was filed.

Front 149

Under what two conditions can a district court decline jurisdiction under the Class Action Fairness Act (“CAFA”)?

Back 149

If more than one third but less than two thirds of the plaintiff class are citizens of the state in which the action was filed and the “primary defendants” are also citizens of the state.

Front 150

What are the three key requirements to maintaining a federal shareholder derivative suit under Rule 23.1?

Back 150

A shareholder can sue to enforce a right of the corporation that those in control of the corporation refuse to assert if he can allege and prove: (1) he made a demand on the directors (and if required by state law, the shareholders) or that a valid excuse exists for failure to do so; (2) he was a shareholder at the time (or received his shares later by operation of law); (3) he can fairly and adequately represent the interests of shareholders.

Front 151

Discuss the jurisdictional issues when bringing a shareholder derivative suit in federal court under Rule 23.1?

Back 151

(1) judgment runs to the corporation, so jurisdictional amount for diversity looks to corporation's damages; (2) corporation is treated as plaintiff for amount, but defendant for diversity; (3) venue is proper usually in the state of incorporation.

Front 152

What are the rules for maintaining a class action suit in California state courts?

Back 152

California usually uses FRCP 23. Class certification requires: (1) an ascertainable class and (2) a well-defined community of interest among members. Prong two factors: (a) predominate questions of law or fact; (b) class action device results in substantial benefits to parties and court; (c) class representative will adequate represent the class interests.

Front 153

What is an interpleader under federal law, and what's the California rule?

Back 153

A suit instituted by a person in the position of a stakeholder to require adverse claimants to determine which has the valid claim to the stake. It applies if separate actions might result in double liability. It is unclear in California whether the stakeholder needs to be disinterested.

Front 154

What are the two different grounds for interpleader in federal court?

Back 154

(1) Rule 22, requires (a) complete diversity between stakeholder and all adverse claimants, or (b) a federal question claim; (2) Section 1335 requires only minimum diversity between the claimants (one must be diverse from one other) and $500 in issue.

Front 155

What are the two types of intervention in federal court?

Back 155

(1) Intervention of right: applicant claims an interest in the property or transaction that's the subject matter of the action and the disposition without him might impair his ability to protect the interest; (2) permissive: when applicant's claim or defense and the main action have a question of fact or law in common.

Front 156

What is the principal issue that arises for permissive interpleader in California state courts?

Back 156

The question is usually whether the potential intervenor's interest is “direct and immediate.” If it's just “indirect and consequential” then it defeats intervention.

Front 157

What is the third party practice when defendants implead other defendants in federal court?

Back 157

The defending party can implead a nonparty who is or may be liable to him for any part of a judgment. If federal question or diversity jurisdiction isn't available, supplemental jurisdiction probably is because the claim arises form a common nucleus of facts. The court can always sever.

Front 158

What is the third party practice in California what defendants want to implead other defendants?

Back 158

It's a cross complaint to add a new party (but not just indemnity). It must either arise out of the same transaction or occurrence as the plaintiff's or must assert a claim or interest in the plainttif's action against the third party.

Front 159

Do parties have to disclosue information without being asked in discovery? In California?

Back 159

Yes, under Rule 26. But there is not automatic disclosure rule in California.

Front 160

What does Rule 26 require parties to disclose generally?

Back 160

First, the party has an obligation to make a reasonable inquiry into the facts of the case. Then it requires them to disclose all information reasonable available. Just because you aren't complete and just because the other side hasn't done it doesn't relieve you of the duty. There are three types: (a) initial disclosures, (b) disclosure of expert testimony, and (c) pretrial disclosures.

Front 161

What information must a party disclose as part of its initial disclosures under Rul 26, and when?

Back 161

(1) names, addresses, and numbers of people likely to have discoverable information; (2) copies or descriptions of documents or electronically stores information in possession; (3) computation of damages and copies of supporting materials; (4) copies of insurance agreements. They must be made within 14 days after the conference of parties req'd by Rule 26(f).

Front 162

What are some exemptions from the initial disclosure requirement imposed by Rule 26?

Back 162

Particular types of cases such as actions to review an administrative record, to enforce an arbitration award, pro se litigation brought by prisoners, actions to quash or enforce subpoenas, habeas corpus petitions.

Front 163

What do parties have to disclose about experts under Rule 26? When?

Back 163

The identities of expert witnesses expected to be used at trial along with a report prepared and signed by the expert stating her qualifications, opinions to be expressed, and basis for the opinions. At least 90 days before trial, unless used to rebut (then 30 days).

Front 164

Besides the initial disclosures and expert testimony disclosures, what other pretrial disclosures need to be made and when?

Back 164

At least 30 days before trial, must disclose witnesses to be called, what testimony is deposition (along with transcript), a list of documents or exhibits. You have 14 days after disclosure to object and are waived if not made, except for objections on relevance, prejudice, or confusion.

Front 165

What is the scope of discovery in federal court? In California?

Back 165

Federal: discovery can be had of any nonprivileged matter that is "relevant to the claim or defense of any party." California is broader: information must "relevant to the subject matter involved in the pending action." Either way, it doesn't matter whether the information is admissible.

Front 166

What's the work product rule in federal court?

Back 166

That made in anticipation of litigation is discoverable only upon a showing of "substantial need" and to "avoid undue hardship." But the court must protect mental impressions, opinions, and conclusions. Confidential communications between experts and counsel are attorney-client privileged.

Front 167

What's the work product rule in California?

Back 167

There's an absolute protection to writings reflecting an attorney's impressions, conclusions, opinions, or legal research. There's a qualified work product the allows discovery only if denial would unfairly prejudice a party in preparing his claim or defense, or would result in an injustice.

Front 168

What about California's constitutional right to privacy and discovery?

Back 168

The court has to balance the need for discovery against the right to privacy.

Front 169

What are the California and federal rules about deposing testifying or consulting experts?

Back 169

A party can depose a testifying expert. In federal court, opinions of consulting experts can be discovered through depositions or interrogatories only if the party shows it's impracticable to obtain such facts or opinions through other means. In California, parties need not disclose consulting experts.

Front 170

What is the rule for protective orders in California and federal court?

Back 170

They can be obtained to limit the nature and scope of examination or to terminate examination to protect against unwarranted annoyance, embarrassment, or undue burden and expense.

Front 171

How do you assert an attorney client privilege during discovery?

Back 171

You have to make the claim expressly and describe the nature of the documents not disclosed in a manner that enables the other parties to assess the applicability of the privilege.

Front 172

What is the federal rule for supplementing discovery disclosures? In California?

Back 172

If you lean the information you disclosed is materially incomplete or incorrect and the correction hasn't been made, then you have to disclose the new information. In California, there is no general duty to supplement.

Front 173

What methods of discovery are availble?

Back 173

Both CA + fed: (1) pre-action discovery; (2) oral deposition of a witness, including a party witness; (3) depositions of witnesses upon written questions; (4) interrogatories to the parties; (5) production of physical material; (6) physical and mental examinations when that condition is in controversy; (7) requests for admission as to the truth or genuineness of any matter or document described in the request.

Front 174

When can you use depositions at trial?

Back 174

(1) to impeach the testimony of the deponent as a witness; (2) for any purpose if the court finds that the deponent is dead or at a distance greater than 100 miles (fed court) or 150 miles (CA court), or that the deponent can't testify because of age, sickness, etc.; (3) or any purpose if the deponent is an adverse party.

Front 175

When can you move to compel discovery and what can the judge do?

Back 175

This is different from sanctions. If a party fails to provide or provides incomplete disclosures or discovery, the other party can move to compel. The court can: (1) order the matters be treated as admitted; (2) prohibit the party from supporting or opposing designated claims or defenses; (3) strike pleadings, stay or dismiss the action, or render default judgment; (4) hold the delinquent party in contempt.

Front 176

What discovery sanctions are available in federal court?

Back 176

(1) Immediate sanctions: if a party fails to attend his own deposition or fails to provide any answers to interrogatories; (2) automatic sanctions: if you fail to disclose "without substantial justification" you can't use the information at trial, hearing, or motion.

Front 177

What discovery sanctions are available in California courts?

Back 177

If you fail to respond to discovery, make an unmeritorious objection, disobey court order. Generally, initial misuse of the discovery process "shall" result in a monetary sanction unless the sanctioned party acted with substantial jusification. Sanctions will escalate.

Front 178

What is the Rule 26(f) conference? How does it work?

Back 178

The parties must confer to consider their claims and defenses, the possibility of settlement, initial disclosures, and a discovery plan. They must submit a proposed discovery plan addressing the timing and form of required disclosures, the subjects on which discovery may be needed.

Front 179

Is there a Rule 26(f) equivalent in California state court?

Back 179

No. The Rule 26(f )conference is the meet and confer requirement. California doesn't have one.

Front 180

What are the case management rules in federal court?

Back 180

It must hold a scheduling conference and enter an order limiting time for joinder, motions, and discovery. It will include dates for pretrial conferences, trial date, and other matters. It can't be modified without good cause. Court has a lot of sanction power for violations of the order.

Front 181

What are the case management rules in California state court?

Back 181

Court has to have an initial conference with 180 days of the complaint. Its requirements are very similar to federal court.

Front 182

How does the California Trial Court Delay Reduction Act work?

Back 182

It's called “Fast Track” The court sets a goal for disposition for some cases. Puts a duty on the court to actively manage the civil case by putting short deadlines and encourage the parties to be diligent.

Front 183

What are the rules for contractual arbitration?

Back 183

It's valid and enforceable unless a contractual ground for revocation exists (e.g., illegality). Arbitrator will be appointed under terms and can subpoena witnesses and require them to bring documentary evidence to the hearing. After the arbitrator renders and award, a party can move a court to affirm and an opposing party can move to vacate. If the award is confirmed, it is final and binding and enforceable as a court judgment.

Front 184

What are some grounds to vacate or modify an arbitration award in both federal and California courts?

Back 184

Vacation: (1) fraud, (2) evident partiality of the arbitrator, (2) arbitrator's refusal to delay proceedings for sufficient cause, or not following the arbitration agreement to such a degree as to affect the outcome. Federal court only: can be overturned if it is a “manifest disregard of the law.” Modification: if it goes beyond the scope of the agreement. CA will not modify or vacate just because of errors of law or fact, even if an injustice results.

Front 185

What is judicial arbitration and how do the rules work?

Back 185

A dispute resolution process conducted by a neutral person under the auspices of the court. In federal court, it's voluntary. California courts might require it if the amount in controversy is less than $50,000 per person. If you ask for equitable relief, you're exempt from judicial arbitration. You get full discovery and rules of evidence apply.

Front 186

What is mediation and what are the rules in federal court?

Back 186

Uses a neutral person to help parties reach a mutually acceptable agreement, does not have decisionmaking power. Confidentiality rules prohibit parties and mediators from disclosing anything. Federal courts might require it for some cases by local rule.

Front 187

What are the mediation rules in California?

Back 187

California has the Civil Action Mediation Program. If a county participates in it, the court might order cases into mediation where the amount in controversy doesn't exceed $50,000 for each plaintiff. Courts can't combine mediation and judicial arbitration.

Front 188

What's an important reason why a party might not be able to exercise a peremptory challenge to a juror?

Back 188

Can't be used to exclude a juror for a constitutionally impermissible reason (e.g., race, gender).

Front 189

Generally, what is the right to jury trial in federal court under the Seventh Amendment?

Back 189

It preserves the right to a jury trial in federal courts in all “suits of common law” when the amount in controversy exceeds $20.

Front 190

What are the procedural rules for a jury trial in federal court?

Back 190

If you want a jury trial, you have to file a written demand on the court with 14 days of the pleading and serve it on the parties; you waive your right if you don't. If there are legal and equitable claims, the legal claim should be tried to the jury first. If the federal rules treat an equitable claim as legal, you get a jury. If damages are incidental to equitable relief, you get a jury to determine fact issues.

Front 191

What is the right to a jury trial in California state court?

Back 191

(1) Anything you could have had a jury trial for in 1850; (2) trials where the “gist” of the action is legal, rather than equitable; (2) not where the gist is equitable and there are incidental legal issues. You could waive your right: (1) by oral or written consent, (2) failing to deposit fees, (3) failing to make a timely demand. The court can relieve a party from accidental waiver.

Front 192

What are the procedural rules for a jury trial in California?

Back 192

(1) If an action involves distinct legal and equitable issues, the court decides equitable issues first (“equity first” rule). (2) A party must “announce” his demand for a jury at the time the case is first set. (3) You must deposit jury fees and expenses.

Front 193

What is the jury trial right for a federal court trial sitting in diversity?

Back 193

The federal court must permit a jury trial in any diversity “suit at common law” even though the state court would deny a jury. A federal court will also follow the federal practice of submitting issues of fact to the jury even thought the state law assigns the issue to the court. State law is disregarded in determining the sufficiency of the evidence to create a jury issue.

Front 194

When do you have to object to jury instructions in both California and federal court?

Back 194

You have to do it before the jury retires to consider the verdict.

Front 195

What are the three different types of jury verdicts?

Back 195

The court can instruct the jury to decide by general verdict (in which the jury finds for the plaintiff or defendant), by special verdict (in which the jury makes findings of fact and the court applies the law), or by general verdict with special interrogatories (a combination of the first two).

Front 196

What are the general rules about trial consolidation and separation?

Back 196

In both courts, the court can consolidate actions before it when the actions have a common question of law or fact, or order separate trials of any claim, cross-claim, counter-claim, cross-complaint, or other issues when separation will foster judicial economy.

Front 197

What are the federal rules on involuntary dismissals (not 12(b) motions)?

Back 197

A federal court, on the defendant's motion, may order an involuntary dismissal against a plaintiff for failure to prosecute or to comply with the federal rules or court order.

Front 198

What are the California rules on involuntary dismissals (not 12(b))?

Back 198

Either party or on the court's on motion, the court can dismis an action for failure to bring it to trial or timely serve process. California statutes also permit dismissal as a sanction sometimes. The “diligent prosecution” statutes and accompanying statewide rules apply to cases that aren't under Fast Track rules.

Front 199

What are the federal rules on voluntary dismissals by the plaintiff?

Back 199

A plaintiff can dismiss his action without prejudice as a matter of right only before the defendant files an answer or a summary judgment motion, or by stipulation of all parties. Otherwise, you need court permission.

Front 200

What are the California rules on voluntary dismissals by the plaintiff?

Back 200

The plaintiff can voluntarily dismiss his own action with or without prejudice before a court makes a dispositive ruling on an issue of law or fact or trial starts. Once trial starts, you can only dismiss with prejudice or gets permission on good cause to dismiss voluntarily.

Front 201

What is a judgment as a matter of law in federal court? How does it work?

Back 201

A judgment as a matter of law (“JMOL”) used to be called a motion for a directed verdict. It allows judgment to be granted for either party if the evidence is such that reasonable persons could not disagree. The evidence must be viewed in the light most favorable to the nonmoving party.

Front 202

What is a judgment as a matter of law in California court? How does it work?

Back 202

It's like the federal judgment as a matter of law. A defendant brings a “nonsuit motion” (same standard as federal court) after the plaintiff's presentation of evidence or the plaintiff's opening statement. It can be partial or complete. Any party can move for directed verdict after the presentation of all evidence in the trial.

Front 203

What is a renewed motion for JMOL in federal court? How does it work in California courts?

Back 203

It used to be called a judgment notwithstanding the verdict (“JNOV”). It has to be filed not more than 28 days after entry of the judgment, but only if you made a prior motion for a judgment as a matter of law. In California, you don't have to bring a directed verdict motion, and you have 15 days to ask for it.

Front 204

What are the procedures and standards for a motion for new trial in both federal and California courts?

Back 204

You have 28 days in federal court; 15 days in California. Grounds are very similar: (1) misconduct on the part of the judge, adverse party, or jury; (2) newly discovered evidence that the moving party could not have, by reasonable diligence, discovered earlier; (3) unfair accident or surprise during trial (4) excessive or inadequate damages; (5) insufficient evidence to justify verdict; (6) the verdict is against the law; (7) error of law. If it's not timely, the court doesn't have jurisdiction to hear it.

Front 205

What is remittitur? What are the rules?

Back 205

The PLAINTIFF must accept either an amount that is less than the jury verdict or submit to a new trial is used in both California and federal courts.

Front 206

What is additur? What are the rules?

Back 206

The DEFENDANT must either agree to pay an amount greater than the jury verdict or submit to a new trial. It's only available in California state courts.

Front 207

What happens if you fail to ask for a renewed judgment as a matter of law or for a new trial in federal court? In California?

Back 207

If you fail to make the renewed JMOL or fail to ask for a new trial on the basis that the evidence was insufficient, then you can't raise it on appeal. California does not have this requirement.

Front 208

What are the rules for the court to issue judgment on partial findings?

Back 208

One there's enough evidence to make a dispositive finding and each party has been heard, the judge can rule on an issue as a matter of law. The judge doesn't have to though. In federal court, the ruling has to be supported by findings of fact and conclusions of law; in California, the court can issue a statement of decision.

Front 209

What is the standard for summary judgment?

Back 209

You can only grant it if, from the pleadings, affidavits, and discovery in the record, it appears that there's no genuine dispute of material fact and that the party is entitled to judgment as a matter of law.

Front 210

What are the timing rules for summary judgment motions in federal and California court?

Back 210

Federal: any time up until 30 days after close of discovery; if premature, court can defer. In California, after 60 days since general appearance of the adverse party, or on court's permission. Moving party must file and serve the motion at least 75 days before the hearing.

Front 211

Do the two different court systems call partial summary judgment?

Back 211

Federal courts can issue partial summary judgment. California calls them “summary adjudication” on less than the complete action.

Front 212

What support do you have to have for a summary judgment motion? In federal court? In California?

Back 212

Both: must be supported or opposed with affidavits, discovery, or admissions in the pleadings. California: moving party must file and serve a separate statement of all material facts claimed to be undisputed with support evidence for each. The opposing party must respond with the same.

Front 213

Is the denial of a motion for summary judgment appealable? In California?

Back 213

Not in federal court, but in California you might be able to get a writ of mandamus.

Front 214

What are the grounds and time for a motion for relief from a judgment in federal court?

Back 214

(1) Mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that couldn't have been discovered by due diligence in time for a motion for a new trial; (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) void judgment; (5) some reason why the judgment shouldn't have prospective application; (6) any other reason. For (1)-(3), you have to do it within a year. (4) doesn't apply just because of error, only for something fundamental like lack of jurisdiction.

Front 215

What are the grounds for relief from a judgment in California courts?

Back 215

It had to be the result of mistake, inadvertence, surprise, or excusable neglect. You have to do it within six months. A court MUST set aside a judgment on a party's application when it is accompanied by an affidavit of an attorney attesting to his mistake, inadvertence, surprise, or neglect (even if inexcusable). You can also move to set aside a void judgment.

Front 216

Generally, when can a party move for reconsideration?

Back 216

In both court systems, a party can move for reconsideration of a prior court order when circumstances justify it (e.g., new evidence was discovered).

Front 217

What is an independent action in equity to set aside a judgment?

Back 217

In both systems, a court might entertain an independent action to relieve a party from a judgment or order, to grant relief to a defendant not actually notified of an action, or to set aside a judgment for fraud on the court. You have to show you're likely to win if a new action is allowed. It's not barred by the time limits for other motions like reconsideration, new trial, etc.

Front 218

What limits are there on the court's ability to give relief in federal court? In state court?

Back 218

Except in default, the court isn't limited to the demand and can give any relief. In California, a court in a limited civil case needs to stay within jurisdictional limits and cannot issue declaratory judgments.

Front 219

What does a federal court have to do if it renders judgment to fewer than all parties or all claims?

Back 219

It has to make (1) an express determination that there is no just reason for delay and (2) an express direction for the entry of judgment. If not, then it's not a final judgment and it's not appealable.

Front 220

What does a California court have to do if it renders judgment to fewer than all parties or all claims?

Back 220

If the court enters judgment against one party and it leaves no further issue to resolve for that party, then it's automatically a final judgment and can be appealed. This is opposite federal practice where the court has to make two express determinations.

Front 221

What happens if you want to attack a final judgment with all appeals complete on the ground that the court lacked subject matter jurisdiction?

Back 221

The court has to decide whether the decision can be collaterally attacked. It must balance factors: (1) is lack of jurisdiction clear? (2) does jurisdiction depend on law, not fact? (3) Is the court of limited and not general jurisdiction? (4) Was the question of jurisdiction litigated? (5) Is there a strong policy for the court not acting beyond its jurisdiction?

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What is the procedure and what are the time limits for an appeal in federal court?

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You can take an appeal by filing a notice of appeal within 30 days from the entry of judgment. However, a timely renewed motion for judgment as a matter of law, new trial, or to set aside or amend a judgment, then the 30 day clock is terminated. Once the court disposes of the motion, then the 30 days runs again.

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What is the procedure and what are the time limits for an appeal in California courts?

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The notice of appeal has to be filed within 60 days after service by the court clerk or party of the notice of entry of judgment, or 180 days after entry if no notice was served. The time limits are strictly applied.

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Generally, what kinds of orders and judgments are appealable?

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Generally, the appeals court can only review final orders and judgments. Some interlocutory orders can be, however: (1) some are reviewable as a matter of right (e.g., injunctions, receivers); (2) some under the Interlocutory Appeals Act; (3) there's the collateral order rule; (4) certification of class actions; (5) writs of mandamus or prohibition.

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What interlocutory orders are appealable as a matter of right in federal court?

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Injunctions, appoints of receivers, and some admirality, patent infringement, and property possession issues.

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What interlocutory orders are appealable as a matter of right in California courts?

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You can appeal after an order granting a motion to quash service, granting a motion based on forum non conveniens, granting new trial, denying motion for JNOV, orders granting or dissolving an injunction, or for an order for sanctions over $5,000.

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How does the Interlocutory Appeals Act work?

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Federal court. Review is discretionary when: (1) the trial judge certifies that the order involves a controlling question of law, which the parties substantially differ on, and which may materially alter the course of litigation; and (2) the appeals court agrees to hear.

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In the context of interlocutory appeals in federal court, state the collateral order rule

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If a claim or issue is separable from and collateral to the main suit, and is a claim too important to require deferring appellate review, it can be split off into a separate proceeding and appealed.

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In the context of interlocutory appeals in California courts, state the collateral order rule

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A party can immediately appeal a collateral order if: (1) the trial court renders a dispositive interlocutory order; (2) on a matter that's collateral to the merits of the action; and (in some courts) (3) the order directs the payment of money or performance of an act.

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When can you appeal a certification of a class action in federal court? In California?

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An order granting or denying certification can be reviewed at the court's discretion within 14 days after entry of the order. In California, an order denying can be immediately appealed, but an order certifying a class or partial class cannot be.

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When is a judgment enforceable and what's the effect of an appeal in federal court?

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Judgment as enforceable while post-trial motions are pending unless the court orders otherwise. If the judgment is appealed, a federal court will stay execution if a bond is posted, unless the order was for an injunction or receivership.

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When is a judgment enforceable and what's the effect of an appeal in California courts?

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There are a lot of exceptions, but the judgment is automatically stayed when you file a notice of appeal. Not for money, sale of real or personal property, or appointment of a receiver unless the trial court orders it stayed or if an undertaking is provided. The appellate court could issue a stay too.

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What is the U.S. Supreme Court's jurisdiction to hear appeals?

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Direct jurisdiction from any order granting or denying an injunction in a proceeding that needs to be heard by a 3 judge court. Can review any court of appeals by certiorari. Can also review cases from highest state court if there's federal law or constitutional law in play.

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What is the California Supreme Court's appellate jurisdiction?

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Original jurisdiction for mandamus, certiorari, prohibition, and habeas corpus. Appellate jurisdiction from California Court of Appeals. Usually people file a petition for review (only 5% granted).

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What is the rule for res judicata (claim preclusion)?

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You have to show: (1) the earlier judgment is valid, final, and on the merits; (2) case was brought by same claimant against same defendant; (3) same cause of action (or claim) is involved (REMEMBER there's a big difference between federal and CA court on this point); the (4) cause was actually litigated, or could have been litigated. Federal court: judgment is final when rendered; California: judgment is final when all appeals are exhausted.

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There are four important aspects to res judicata, and one of them is that the two suits have to have the same cause of action. Discuss the difference between California and federal court on this.

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Federal courts say that it requires the plaintiff to assert all claims arising out of the same transaction or occurrence. California uses a minority position called “primary rights doctrine,” under which a cause of action is defined as an invasion of a single primary right. (So you could have one suit for personal injury and one for property damage in a car accident.)

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What is the doctrine of collateral estoppel (issue preclusion)?

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Judgment for plaintiff or defendant is conclusive in a subsequent action on a different cause of action between them as to issues actually litigated and essential to the judgment in the first action. THINK: what's the impact of this doctrine on California's weird primary rights doctrine approach to res judicata?

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For the purposes of res judicata or collateral estoppel, who is bound by this?

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The issue is: can a stranger rely on a prior judgment? (1) Was the issue decided in the first case identical to that in the second? (2) Was there final judgment on the merits? (3) Did the party have a fair opportunity to be heard? (3) Would it be fair to apply collateral estoppel? California adds (4) Was the adverse party a party or in privity with a party to the prior proceeding?