Ca Civ Pro Ii Merged

Front 1

Required Disclosures

Back 1

§ Initial disclosures
§ Experts
§ Pretrial disclosures

Front 2

Discovery Tools

Back 2

§ Depos
□ Should use subpoena deuces tecum to compel attendance and bringing of documents

§ Interogs

§ Requests to produce
□ Must respond win 30 days

§ Physical/mental exam (only thru ct order)

§ Request for admission

§ There is a duty to supplement

Front 3

Scope of Discovery

Back 3

§ Standard - Can discovery anything relevant to claim or defense
□ Relevant - reasonably calculated to lead to discovery of admissible evidence

§ Privileged matter is not discoverable
□ Have to object with particularity as to why its privileged

§ Work product discoverable only if cannot be obtained elsewhere and substantial need
□ NEVER for opinions, legal theories, conclusions, mental impressions
□ Can be generated by party or representative of party

§ Experts
□ Can depo witness whose opinions may be presented at trial, but only get to depo consulting expert with showing of substantial need.

Front 4

Enforcement of Discovery sanctions - methods and types of significant sanctions

Back 4

§ Protective order

§ Partial violation
□ Two steps for sanctions
® Can get order compelling performance
® Violation gets huge sanctions

§ Total violation
□ Directly to huge sanctions

§ Big sanctions
a) Establishment order (establishes facts as true)
b) Strike pleadings of disobedient party (as to issues re the discovery)
c) Disallow evidence from the disobedient party (as to issues re discovery)
d) Dismiss Ps case (if bad faith shown)
e) Enter default judgment against D (if bad faith shown)

Front 5

Necessary party - test

Back 5

1) Court cannot accord complete relief without
2) Absentee's interest may be harmed if not joined (most common)
3) Absentee claims interest which subjects a party usually D to multiple obligations


NOTE: ii. Joint tortfeasors not necessary

Front 6

Is joinder possible/if not, is party an indispensible party?

Back 6

i. Must be feasible:
1) Personal jurisdiction
2) Joining him will not destroy diversity

ii. If feasible, brought in, court picks P or D

iii. If unfeasible, court chooses whether to proceed
1) Facts:
a) Alt forum available?
b) Likelihood of prejudice?
c) Can prejudice be avoided
2) If court cannot proceed without, absentee is indispensible. CASE MUST BE DISMISSED

Front 7

Impleader rules

Back 7

a. Can bring in for indemnity/contribution
b. Right to implead within 10 days of serving answer/permission after that
c. P/TPD after joinder can assert claims against each other on same t/o
i. Must be SMJ

Front 8

Intervention rules

Back 8

a. Intervention of right
-Intervenor's interest may be harmed if she is not joined and her interest is not adequately represented now.

b. Permissive intervention
-Intervenor's claim or defense and the pending case have at least one cmmon Q - discretionary with court

Front 9

Class Action - Requirements

Back 9

1. Numerosity, commonality, typicality, representative adequate

2. Case must fit into one of three types:

prejudice (Class treatment necessary to avoid harm either to class member or to party opposing class)

injunction,

dmgs
-Dmgs: common questions predominate over individual
-Class action is superior method to handle dispute

Front 10

Court steps after motion for certification

Back 10

b. Court must quickly determine whether to certify class

1. If so, must define class, class claims/issues/defenses, and appoint class counsel

Front 11

Notice requirements

Back 11

1. Dmgs: individual notice to all reasonable identifiable members
1) Must inform they can opt out, bound if they don't, can have separate counsel
2. Individual notice not required in prejudice, injunction CA

Front 12

Personal JDX

Back 12

(1) Satisfy a statute
-E.g., long-arm statute

(2) Due Process
-Much more important analysis

NOTE:
The analysis is the same for state and federal court

Front 13

What is in personam jurisdiction

Back 13

π wants to impose a personal obligation on ∆ personally, not ∆'s property.

(1) Served with process in the state
(2) Domiciled in the state
(3) Do things in the state (conduct business)

Front 14

What is the TEST for the Constitutional analysis for in personam jdx?

Back 14

'Does ∆ have such minimum contacts with the forum so that exercise of jdx does not offend traditional notions of fair play and substantial justice?'

TRADITIONAL:
-Domiciled
-Consents
-Present and served in the forum state

CONSTITUTIONAL DP (factors)
(1) Minimum Contacts
-'Purposeful availment' AND
-Foreseeability (of suit)


(2) Fairness (fair play and substantial justice)

(a) Realtedness
-specific (directly related to activities)
-general (continuous and systematic ties)

(b) Convenience
-Sever disadvantage
(c) State Interest
-Providing a forum for its citizens

Front 15

What is 'purposeful availment?'

Back 15

∆ used the state:
-Roads
-Business

Front 16

How do you remember the Constitutional test for pjdx?

Back 16

'My Parents Frequently Forgot to Read Childrens' Stories'

(1) Minimum contacts
(a) Purposeful avilment
(b) Foreseeability

(2) Fair play and substantial justice
(a) Relatedness of contact and claim
(b) Convenience
(c) State's interest

Front 17

What is the difference between general and specific personal jdx?

Back 17

(1) General
-If continuous and systematic contacts with this forum, you may be sue for anything in this state

(2) Specific
-If your use of the forum is directly related to the cause of the suit, you may be sued in that forum

Front 18

When can a website subject you to personal jdx?

Back 18

If the website is interactive and not passive.

Front 19

What type of JDX do CA Superior Courts have?

Back 19

General Subject Matter JDX.

-They can hear any civil case

-They cannot hear cases that federal courts have exclusive jdx over (e.g., trademark, bankruptcy, antitrust, etc.)

Front 20

What is a limited civil case and why is it important?

Back 20

-Any case thats AIC ≤$25k
-Can never recover more than $25k
-Limited pleading and discovery

Front 21

What is the difference between a local and transitory action for purposes of Venue?

Back 21

(1) Local Action:
-Deals with land
-Venue = where ever that land is

(2) Transitory Action:
-All other cases
-Venue =
(a) where all ∆'s reside; or
(b) where the contract was entered or to be performed
(c) where the injury occurred
(d) anywhere if all ∆'s are non-residents

Front 22

When can a court transfer venue even though the original venue is proper?

Back 22

(1) Cannot have an impartial trial
(2) Convenience of witnesses and ends of justice
(3) No judge qualified to act

NOTE:
The parties either agree on new forum OR
If no agreement, judge decides.

Front 23

What is 'forum non conveniens (inconvenient forum)'

Back 23

If there is a FAR more appropriate venue, a court may dismiss (usually without prejudice) (or stay) to allow π to file in that court.

This occurs if transfer is impossible because the proper venue is in a different judicial system (another state or foreign).

Court may force ∆ to waive PJDX or SOL

Front 24

Who may serve process?

Back 24

Any NON-party who is at least 18.

This is the same as federal court

Front 25

What is the difference between state and federal substitute service of process?

Back 25

Federal

STATE
-Only may be used if personal services cannot be done with reasonable diligence
-Must be made at ∆'s usual abode
-Must be left with a competent member of the household who is at least 18
-That person must be informed of the contents
-Mailed 1st class postage prepaid to ∆

Front 26

Can services be made outside of CA?

Back 26

YES.

In any manner allowed by CA law.

OR

By 1st class mail, postage prepaid.

Front 27

Does CA have immunity from process for those who appear for another case?

Back 27

NO.

-If ∆ appears for a CIVIL case, ∆ may be served with process for another case. He is not immune.

NOTE:
This is unlike federal law.

Front 28

What type of pleadings does CA require?

Back 28

Fact pleading.

-π must allege the ultimate facts of each element of each COA
-Heightened pleading for fraud
-This is more detailed than fed court's 'notice pleading'

Front 29

What methods of service are allowed in state court?

Back 29

(1) Personal

(2) Substitute
-if personal service cannot with reasonable diligence be had

(3) Waiver
-∆ has 20 days to respond
-Service is complete when ∆ executes the waiver

(4) Publication
-if service in any other way cannot with reasonable diligence be had
-almost never allowed

Front 30

What is the difference between federal and state waiver of process?

Back 30

STATE
-Process is mailed to ∆ by first class mail, postage prepaid
-∆ has 20 days to respond
-Service is complete when ∆ executes the waiver

FEDERAL
-Process is mailed to ∆ by first class mail, postage prepaid
-∆ has 30 days to respond
- IF ∆ does NOT return waiver, ∆ MUST be personally served BUT will have to pay the cost of service.

Front 31

What must the complaint contain?

Back 31

(1) A statement of ultimate facts constituting the cause of action

(2) Demand for judgment
-If damages are demanded, a $ amount is required UNLESS:
-PI, Wrongful Death, or Punitive
-BUT SEE statement of damages

(3) Limited or Unlimited Cases

(*) PJDX NOT required

Front 32

What is a 'statement of damages'

Back 32

(1) IF π requests damages for a PI, wrongful death, OR request punitive damages
(2) ∆ may request a statement of damages
(3) π has 15 days to respond
(4) π cannot obtain a default until π provides the SOD to ∆

Front 33

When does ∆ have to respond to π's complaint?

Back 33

30 days after service of process
OR
Answer w/in 10 days after demurrer or motion fails

-Federal allows only 20 days to respond

Front 34

What is the CA counter part to 12(b)(6)?

Back 34

The general demurrer.

Front 35

What else can be raised by general demurrer?

Back 35

Lack of SMJDX.

-This is rare because state courts have general jdx
-This only works for cases that federal courts have exclusive jdx (e.g., antitrust)

Front 36

What can be raised in a special demurrer?

Back 36

(1) Complaint is uncertain, ambiguous, or unintelligible
(2) Complaint is unclear about which theories of liability are asserted
(3) Existence of another case between the same parties on the same cause of action
(4) Defect or misjoinder of parties
(5) Failure to plead whether a contract is oral or written
(6) Failure to file a certificate

Front 37

How can ∆ respond π's complaint?

Back 37

(1) General demurrer
(2) Special demurrer
(3) Motion to quash service of process
(4) Motion to dismiss or stay for inconvenient forum
(5) Motion to strike
-Anti-SLAPP motion to strike
(6) Answer

Front 38

When can a π demurrer to a ∆'s answer?

Back 38

If the ∆'s answer does not state ultimate facts sufficient to constitute an affirmative defense.

Front 39

What are the federal counter parts to the CA 'cross complaint?'

Back 39

(1) Cross complaint against π
-Fed: counter claim

(2) Cross complaint against co-∆
-Fed: cross claim

(3) Cross complaint against impleader 3rd party
-Fed: impleader

Front 40

Are fictitious ∆'s allowed in state court?

Back 40

YES.

NOT in federal court

Front 41

What is the difference between the work product doctrine in CA and Federal Court?

Back 41

California:
Must be created by attorney or his agent

Federal:
Must be created by the party, representative of a party, attorney, or his agent

Front 42

Is there discovery of consulting experts (those who will not testify at trial)?

Back 42

NO

Not in state or federal court.

Front 43

Can an attorney seek to limit discovery by claiming the information sought is private?

Back 43

YES

-The CA constitution recognizes a right of privacy
-The court must balance the needs for discovery against the need for privacy

Front 44

Does an attorney have a duty to supplement discovery responses?

Back 44

NOT in CA so long as the information given was accurate and complete when given.

In Federal court, YES.

Front 45

Because there is not duty to supplement discovery responses in CA, how does the opposing party ensure accurate and complete responses?

Back 45

He may request Supplemental Discovery up to 2 times before the trial date is set AND 1 time after.

-This is ONLY allowed in UNLIMITED cases

Front 46

What are the types of class actions in state court?

Back 46

THERE are NONE.

-Unlike federal court
(3 types: Damages; Prejudice; Injunction/Declaratory)

Front 47

What are the types of dismissal in state court?

Back 47

(1) Voluntary
-Discretion to dismiss w/ or w/o prejudice

(2) Involuntary
-Discretion to dismiss if not brought to trial w/in 2 years of filing

(3) Mandatory
-Must dismiss if:
i) Case not brought to trial w/in 5 years of filing
ii) OR process was not served w/in 3 years of filing

Front 48

Right to a Jury Trial
State
v.
Federal

Back 48

STATE
-CA Constitutional right
-12 jurors
-No jury in equity cases even if there are incidental law claim
-3/4 verdict

FEDERAL
-7th Amendment Right
-6 to 12 jurors
-No jury in equity cases BUT if there are incidental law claim, must be a jury trial
-unanimous verdict (unless otherwise agreed)

Front 49

When will a state court grant a trial doe to excessive or inadequate damages?

Back 49

When the award 'shocks the conscience.'

Front 50

Does a court always have to grant a motion for a new trial if the award 'shocks the conscience?'

Back 50

NO

Remittitur (lower)
-Give π choice of lower award or new trial

OR

Additur (raise)
-Give ∆ to pay higher award or new trial

Front 51

Is additur allowed in federal court?

Back 51

NO

-It is unconstitutional, in violation of the 7th amendment.
-7th amendment has not been incorporated
-Therefore, state courts have the power of additur

Front 52

When are interlocutory reviews allowed (appeal of a non-final judgment)?

Back 52

(1) By statute

(2) Collateral order rule

(3) Extraordinary writ
-mandate
-prohibition

Front 53

What law is used for claim and issue preclusion?

Back 53

The law of the system that decided the 1st case.

E.g., if state law decided case 1, use state law for claim and issue preclusion in case 2 even if it is in federal court.

Front 54

What are the elements of claim preclusion?

Back 54

(1) Same claimant against the same ∆
(2) Case 1 ended in a valid final judgment on the MERITS
(3) Same cause of action

Front 55

When is a judgment 'on the merits?'

Back 55

ALWAYS

UNLESS
(1) Court said otherwise
(2) Lack of JDX
(3) Improper Venue
(4) Failure to join indispensable party

Front 56

For purposes of issue and claim preclusion, how do you determine if the cause of action is the same?

Back 56

FEDERAL:
-Same T/O
-property injury = bodily injury IF arose out of the same T/O

CA:
-Same Primary Rights
-property injury ≠ bodily injury

Front 57

What are the elements of issue preclusion?

Back 57

(1) Case 1 ended in a valid, final judgment on the merits

(2) Same issue was actually litigated and determined in Case 1

(3) The issue was essential to the judgment of Case 1

(4) Against a party to Case 1

(5) By whom?
(a) Mutuality (CL):
-someone who was a party in case 1
(b) Non-mutual Defensive:
-Modernly allowed
(c) Non-mutual Offensive:
-Modernly allowed So long as fair

Front 58

Is there risk of issue or claim preclusion after a default judgment?

Back 58

Issue Preclusion: NO

Claim Preclusion: YES

Front 59

When is a case classified as limited or unlimited?

Back 59

(1) Initially in the complaint by P
-not considering attorney's fees interest or cost
-if not mentioned, it is assumed unlimited
-jdx is NOT lost if misclassified

(2) May be reclassified
-Automatic by court clerk
-On motion by party
-On motion by court w/o considering merits
*court may consider material beyond the pleadings (e.g. other awards)

Front 60

If there is a motion to reclassify a case (limited/unlimited), what is the standard?

Back 60

(1) Unlimited --> Limited
-Case will necessarily result in a verdict of $25k or less

(2) Limited --> Unlimited
-Possibility the verdict will exceed $25k

Front 61

In determining if a case is limited or unlimited, will the court aggregate claims?

Back 61

YES

-Unrelated claims of P against D
-Related claims of P1 and P2

Front 62

Are special demurrers available in limited cases?

Back 62

NO, only in unlimited cases.

Front 63

Can P assert a claim against a fictitious D?

Back 63

YES IF:
-P is genuinely unaware of D's identity
-P may assert a claim against 'Doe'

NOTE:
This is not allowed in federal court

Front 64

Are demurrers 'granted' or 'sustained'

Back 64

Sustained

Motions are granted or denied

Demurrers are sustained or overruled

Front 65

When must a motion to quash service of summons be made?

Back 65

Before or with a demurrer or a motion to strike.

OR it is waived.

Front 66

What defense is a motion to quashed service of summons used to raise?

Back 66

(1) Lack of pjdx
(2) Improper process
(3) Improper service or process

-This is known as a 'special appearance'

Front 67

What are the names of the CA joinder claims?

Back 67

(1) Cross complaint
-against π
-against co-∆
-against impleader 3rd party
(2) Intervention
(3) Interpleader

Front 68

Is it easier to join a 3rd party (3rd party impleader) in CA or Federal Court?

Back 68

CA

CA allows if same T/O
Fed allows if indemnity or contribution only

Front 69

How many depositions may a party take in a limited case?

Back 69

ONLY 1

Front 70

What are the 5 CA discovery tools?

Back 70

(1) Depositions
-Party or non-party with subpoena
-Subpoena Duces Tecum (bring items)
-No limit
-No hour limit


(2) Interrogatories
-Parties only
-35 max (may serve more w/ a declaration)
-No max for Forum Interrogatories

(3) Request to produce
-Party or non-party with subpoena
-30 days response time
-Not allowed in limited cases

(4) Physical or mental exams
-1 allowed for PI cases as a matter of right


(5) Request for admissions
-Party only
-35 max (unless issue of doc genuineness-unlimited)
-Not allowed in limited cases
-30 days response time

Front 71

What is the CA standard for discoverable material?

Back 71

Anything relevant to the subject matter involved in the pending action.

-This is slightly broader than federal court

Front 72

Class Action 'Big Picture'

Back 72

(1) Ascertainable class

(2) Well defined community of interest
-rep is adequate
-common questions predominate
-class will result in substantial benefit to parties and court

(3) No 'types'
-Unlike fed court

(4) Notice may be by publication
-Unlike fed court (individual notice required)

(5) Claims may be aggregated to meed unlimited requirements
-Fed looks only to Rep to determine AIC (diversity jdx)

Front 73

What is the $ limit for small claims cases?

Back 73

Individual
$7,500

Entity
$5,000

Front 74

When determining whether there was a 'valid final judgment on the merits' for issue and claim preclusion, what analysis must be undertaken?

Back 74

Make sure the previous court disposed of the action in a proper way.

E.g., If the court dismissed the action because of lack of SMJDX, analyse whether it actually lacked SMJDC.

Front 75

In personam jurisdiction is established and delimited by...

Back 75

Statutory authority by state court in and satisfaction of constitutional standard (Cal's long-arm extends to constitutional limits, so need only satisfy constitution).

Front 76

What is the test for personal jurisdiction under the US Const?

Back 76

Does D have 'such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice?'

If yes, then PJ. If not, then no PJ

Front 77

Constitutional PJ test:

Back 77

□ To show this, look to two factors: contact and fairness

Minimum Contact
◊ Purposeful Availment: Contact must result from purposeful availment
► Interactive website may be sufficient
◊ Foreseeability: Must be foreseeable D could get sued in this forum

Fair Play and Substantial Justice
◊ Relatedness, must show the contacts are sufficiently related to Ps claim, or sufficiently extensive generally, to make PJ fair
► If Ps claim arises form Ds contact w/ forum = Specific PerJur
► If not, must show Gen PerJur - D must have continuous and systematic ties with the forum
◊ Convenience - not a valid objection unless puts D at severe disadvantage.
► Almost impossible to show
◊ State interst: Always mention state has interest in providing forum for its citizens

Front 78

Court of general jurisdiction in CA and extent of jurisdiction

Back 78

○ Superior court has general SMJ
§ Can hear any civil case (outside of exclusive fedjur)

Front 79

Classifications of cases in CA:

Back 79

□ Limited Civil: 25K or less at stake
® Limitations on pleading and discovery
® CANNOT recover more than 25k

□ Unlimited civil
® Full range of relief, unlimited dmgs

□ Small claims - division of superior court
® Individ P: 7.5k
® Entity P: 5k at stake

Front 80

Classification/Reclassification of Claims

Back 80

Original Classification:
□ P determines initially - claim alone determines
® Must in complaint if limited

□ Reclass
® Automatic if P changes complaint in way that changes class

® On motion by P or court - must be notice and hearing
◊ Court cannot consider merits of claim in deciding
◊ Court can move unlimited to lmt if more than 25k virtually unobtainable
◊ Court can move lmtd to unlmtd when ct convinced possibility of greater than 25k recovery.

Front 81

Aggregation of Claims for Classification

Back 81

□ Aggregation for Class:
® Agg all of 1 P's claims.
® 2Ps - only 1 P need clear 25k to get unlimited
® D cross-complaint can make it unlimited even if Ps claim for less than 25k

Front 82

Venue Summary

Back 82

a. Local actions - whatever county land lies in.

b. Transitory - Venue ok where any D resides when case filed'
i. K Cases - additionally, venue in county where K entered into or to be performed
ii. PI/Wrongful Death - additionally, venue in county where injury occurred
iii. Bus. Entity: Venue in counties where:
a) It has principal place of business
b) Where it entered into or is to perform a K
c) Where the breach occurred or liability arises



c. If all Ds non-CA residents - venue anywhere in state

Front 83

Transfer of Venue

Back 83

i. If original venue is improper
1) D can move to transfer to a proper county
2) D will do this with or BEFORE his responsive pleading.

ii. If original venue proper, a ct may, on motion, transfer if:
1) There is reason to believe impartial trial cannot be had in the original venue
2) OR: Convenience of witnesses and ends of justice would be promoted
3) OR no judge is qualified to act
4) NOTE: Transfer to county on which parties agree.
a) If parties cannot agree, then court chooses.

Front 84

Inconvenient Forum

Back 84

e. Inconvenient forum (forum non conveniens in fed ct)
i. By statute in CA, ct may stay/dismiss on motion (its own or party) if it finds that in interest of substantial justice an action should be heard in forum outside CA.

Front 85

Methods of Svc of Process

Back 85

b. Methods
i. Personal

ii. Substituted
1) Must first try personal with reasonable diligence
2) Must be at Ds usual abode/mailing addres (excl POBOX)
3) Must be left with competent member of household who is 18+
4) Must inform person of contents
5) Must also be mailed first class mail to D
6) Deemed effective 10 days after mailing

iii. Bus. Entities: Deliver to agent for svc of process or officer or GM (or someone in charge at their office)
1) These are all registered agents CHECK

iv. Waiver
1) Same as fed - but D has only 20 days to return form

v. Service by publication
1) Only on affidavit saying D cannot be served by other means after reasonable diligence

Front 86

Service outside of Cali

Back 86

c. Service outside cali
i. Any normally authorized method or by mail

Front 87

Two points about svc in CA:
-Visiting witnesses?
-Subsequent documents?

Back 87

d. CA has abolished immunity while instate as witness/party in other civil case


f. Subsequent documents.
As in fed ct, can be delivered or mailed. If mailed, add 5 days time required for response.

Front 88

Frivolous lit rules in Cal

Back 88

b. Frivolous lit
i. Rule 11 mirror, except 21 day safe harbor when ct raises issue on its own too

ii. Another stat allows ct to order party/atty/both to pay expenses/atty fees of other party incurred due to frivolous tactics/bad faith.
1) Frivolous = completely w/o merit or sole purpose of harassment
2) Bad behavior must be in litigation
3) No safe harbor

Front 89

Contents of Complaint

Back 89

1) Statement of facts constituting cause of action (ordinary/concise language)
a) THE ULTIMATE FACTS on each element of each cause of action
b) Heighten pleading reqs:
i) Fraud
ii) Civil conspiracy
iii) Tortious breach of K
iv) OTHERS

2) Demand for judgment for relief

3) No need to allege SMJ

4) Must state if limited civ case

5) P must state amount of dmgs sought
a) Except for PI/Wrongful Death and Punitives
b) D finds out by requesting statement of dmgs - P must serve this before can take default

Front 90

Fictious D's

Back 90

1) Can name 'Doe' if genuinely unaware of a D's ID.
2) May be able to amend back if filed before SoL runs

Front 91

D's possible responses:

Back 91

Gen. Demurrer

Spec. Demurrer

Motion to Quash service of summons

Motion to dismiss or stay for inconvenient forum

Motion to strike

Answer

Front 92

Gen. Demurrer

Back 92

1) Asserts 2 def:
a) P failed to state cause of action
b) Lack of SMJ
2) Could also raise these as affirmative defenses in answer
3) May aim at entire complaint or cause of action
4) It IS considered a pleading

Front 93

Spec. Demurrer

Back 93

1) Can be used to assert a ton of defenses
i) Complaint uncertain/ambig/unintelligible
ii) Complain is unclear about which theories of liability are asserted against each of the Ds
iii) Lack of legal capacity
iv) Existence of another case betw the same parties on the same cause of action
v) Deject or misjoinder of parties
vi) Failure to plead whether K oral or written
vii) Failure to file certificate (required when you sue for prof neg - really just for architects, engineers, or land surveyors)

2) Could be raised in answer

3) If not raised in demurrer or answer, then waived

4) CANNOT USE SD in a limited civil case

Front 94

Motion to quash service of summons

Back 94

1) Used to assert
i) Lack of PJ
ii) Improper Service of Process
iii) Improper Process

2) Must be made with or before demurrer/motion to strike/answer, or waived

i) Answer is general appearance, waives PJ. Can file with the answer, but cannot then litigate matter and raise the objection close to or at trial like you can in Fed Ct.

3) Can appeal denial of motion

Front 95

Motion to dismiss/stay for inconvenient forum

Back 95

v. Motion to dismiss or stay for inconvenient forum
1) Must be raised before or with demurrer/motion to strike or waived
i) BUT CAN BE MADE AFTER ANSWER (CHECK)

Front 96

Motion to strike:

Back 96

Before sponding to pleading, a party may move to have stricken any insufficient defencse or any redundant, immaterial, or scandalous material.

Front 97

Anti-SLAPP motion to strike

Back 97

D must make threshold showing that the cause of action in complaint arises from protected activity (e.g. right of free speech).

If D makes such a showing, burden shifts to P to show a probability of prevailing on the merits.

Front 98

Answerr

Back 98

1) Mostly like in fed ct

2) Exceptions
i) General denial available
ii) Must state ultimate facts surrounding aff defenses

3) Cannot include demand for recovery against P

4) If D's answer insufficient, P can demurrer

Front 99

Timing for pleadings

Back 99

1) 30 days to answer/demurrer/motion

10 days if fails

Front 100

Cross-complaints

Back 100

i. Cross-complaint must be separate doc from answer (unlike fed)

ii. Cross-complaint against P
1) Filed before/with answer. Same compulsory/permissive rule as rd

iii. Cross-C against co-party
1) File anytime before trial date set
2) MUST be same t/o (same as fed)
3) Never compulsory

iv. Cross-C against TPD
1) File anytime before trial date set
2) TPD may raise defenses TPP could raise against P
3) Broader than fed: Allows any for any claim TPD is liable on the underlying case if it arises from same t/o or involves interest in the controversy that is basis for underlying claim
4) TPD - 30 days to answer, must be served with summons if not yet appeared in case

Front 101

Amendment of Filings

Back 101

i. P has right before D files answer/demurrer, and right to amend once between answer/trial

ii. Permissive - delay/prejudice std

iii. Amendment to conform to evidence available

iv. Relation back
1) Add new claims: only if relates to same gen. facts as originally alleged
2) Same wrong D/D knew std
3) Ficticious Ds:
i) Orig complaint filed within SoL, charged ficticious Ds, P genuinely ignorant of real ID and pleaded that ignorance in complaint, and P substittues true D within 3 years of filing.

Front 102

Scope of discovery

Back 102

i. Anything relevant to subject matter in pending action
1) Relevance same as fed

Front 103

Claim and issue preclusion should be raised by D...

Back 103

D should raise affirmative defense of claim and issue preclusion in her answer.

Front 104

Choice of law claim and issue preclusion.

Back 104

The law of the court that decided case #1 applies if case #2 is brought in a different court system.

Front 105

Ohio District Court issues final judgment in case #1. Case #2 is brought in California state court. Choice of law?

Back 105

Federal law.

Front 106

D appeals judgment in case #1 by Ohio District Court. Is the judgment entitled to claim or issue preclusion?

Back 106

Federal law: yes. California: no.

Front 107

Claim preclusion.

Back 107

Claim preclusion prevents re-assertion of claimant's cause of action when there has been a final judgment on the merits.

Front 108

On the merits.

Back 108

Any judgment is on the merits unless based on jurisdiction, venue, or indispensable parties.

Front 109

Collateral estoppel (issue preclusion).

Back 109

Issues of fact actually litigated and essential to a judgment in a 1st action are conclusive in a subsequent, although different, action between P and D or their privies.

Front 110

Claim v. cause of action.

Back 110

'Claim' defined as all rights to relief arising from a transaction or occurrence under federal law.
'Cause of action' means that for each right raised, there is a separate cause of action under California's primary rights theory.

Front 111

Primary rights theory.

Back 111

1 cause of action = 1 right raised. P sues D for battery and conversion => 2 causes of action.

Front 112

Claim preclusion analysis.

Back 112

Three-step analysis: 1) is C1 and C2 brought by same P against same D 2) did C1 end in final judgment on the merits 3) do both cases involve the same claim (Fed) or cause of action (Cal)?

Front 113

If claim preclusion bars P from trying a cause of action in a later lawsuit because the earlier action was dismissed by way of summary judgment, it will be because...

Back 113

Summary judgment motion is granted on the pleadings if no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Thus, a summary judgment is a judgment on the merits -- no disputed fact issues existed -- therefore res judicata, applies because it was a final judgment on the merits.