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67 Cards in this Set

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SMJ- What are the 3 types of cases under the jurisdiction of Superior Courts?
1) Limited Civil Cases
(no claimant can get more than 25k)
2) Unlimited Civil Cases (>25k and you can get permanent injunction)
3) Small Claims (<7500 for ind., <5000 for company)
What are the filing requirements regarding classification?
If P is filing a limited case, it must have "Limited" in the caption.
What happens if a P misfiles or the case is no longer in the class filed?
The court does not lose SMJ, it is reclassified. P can amend complaint--auto reclassification.

Party can move to reclassify or court can do this on its own motion. (If it does, court must give notice to all parties and oppty for a hearing)

Court can look beyond the pleadings to make determination, but cannot consider merits to reclassify
How does one change classification from unlimited to limited?
By motion, and if the judge is convinced that the matter will NECESSARILY result in a verdict of 25k or less or more than 25k is virtually unobtainable.
How do you change a case from limited to unlimited classification?
If judge is convinced that there is a POSSIBILITY that the verdict will exceed 25k.
What is the effect of multiple claims on the classification of cases?
1) aggregate P's claims if 1P and 1D.
2) If P has claim against 1D that is over 25k and one that is under, classify the entire case as unlimited.
3)If P sues for less than 25k, but D files a cross-complaint, then case is reclassified as unlimited
4) P claims over 25k, and D cross-complaint is less, it is still unlimited
Where is appropriate venue?
1) appropriate county (i.e. where the land lies; or where contract was to be performed, where injury occurred)
2) for transitory action, in any county where a D resides when case is filed
3) if all D's are non-residents of Cali, then any county
If venue is improper, when and how does D tranfer to a proper venue?
D must make motion before or with the answer, demurrer, or motion to strike. (don't wait too late)

Even if venue is proper, court may transfer on motion if:
a) reason to believe impartial trial cannot be had in the original venue
b)convenience of witnesses and ends of justice would be promoted
c) no judge is qualified to act

transfer to mutually agreeable county, and if they can't agree the court decides
What is the standard for a court to grant a forum non conveniens (inconvenient forum) motion?
Under statute, state courts may dismiss or stay a motion if it finds that "in the interest of substantial justice an action should be heard in a forum outside california"

court may condition granting motion on D waiving a PJ or SOL objection in the other forum.
What constitutes service of process?
summons and a copy of the complaint served by any non-party who is at least 18
What are the methods of service in California?
1. Personal service
2. Subsituted service (can only use if personal service cannot be had) (at D's usual abode, left with competent member of HH, person must be informed of contents, process must ALSO be mailed by 1st class mail, postage prepaid for D.)
deemed effective 10 days after mailing.

3. Corporations/other biz; deliver process to agent for service of process or officer or general manager.

4. wiaver by mail (copy of summons and complaint and 2 copies of notice and acknowledgement-plus prepaid postage) (D has 20 days to return--F-30--and service deemed complete when D executes the waiver
5. only serve by publication on affidavit fromP's atty that D cannot be served after demonstrating R diligence to serve D in another way
What if service is outside of CALI.
Can be served in any manner allowed by Cal. law OR by mail, postage repaid, return requested. If by mail, deemed complete tenth day after the mailing.
Can you serve non-resident while they are in the J as a witness or party in a civil case?
Yes. California abolished this immunity.
Does Cali follow the FRCP notice pleading?
No, Cali uses fact pleading and requires more detail in pleadings than does federal court.
How do Cali courts treal frivilous litigation? LIke Rule 11?
Cali statute works just like rule 11, but the 21 day safe harbor applies to motions by parties and bythe court. (no 21 days in FC when court beings rule 11 motion).

Another Cali statute orders party or atty to pay atty fees incurred b/c of another's bad faith tactics in litigation. No safe harbor, but there will be oppty to be heard first.
What is contained in a complaint and how is this different than under FRCP?
FRCP speaks to claims. Cali: complaint must contain a "statement of facts constituting the cause of action, stated in ordinary and concise langauge" (ultimate facts on each element of each cause of action).
b) must contain a demand for damages (except not punitive, PI or wrongful death), caption as limited if so.

In PI or WD, D may demand a statement of damages and P must provide w/in 15 days

c) if cause of action is fraud, plead with heightened particularity (also civil conspiracy, tortious breach of K, product liability among mult. D resulting from exposure to toxins)
If P does not know the identity of the D, may she nonetheless file a complaint?
Yes, if P truly doesn't know identity. May issue a "charging allegation" against the "Doe" defendant
What are verified pleadings?
These are rare, but they are signed under perjury to the signing party. They are required in some suits against gov't entities. They can be treated as affidavits (for SJ).
When must a D respond to a complaint?
W/in 30 days after service of process is deemed complete.

Motion or answer in Fed. Ct. More ways to answer in state.
What are D's options to respond to a complaint?
General demurrer, special demurrer, motion to quash service of summons, motion to dismiss or stay for inconvenient forum, motion to strike, answer.
What can D do with a general demurrer?
Can be used to assert several defenses.
-Failure to state facts sufficient to constitute a cause of action (like 12b6, but this is a pleading and not a motion)
- lack of SMJ

(these defenses could also be raised in the answer or in a motion for judgment on the pleadings)

Demurrer might be aimed at the entire complaint or individual causes of action.
What defenses can be raised by special demurrer?
-complaint is uncertain, ambiguous or unintelligible (like motion for more definite statement)
- complaint unclear about which theories of liability are asserted against D
- lack of legal capacity
-existence of another case between the same parties on the same cause of action
-defect or misjoinder of parties
-failure to plead whether a contract is oral or written
-failure to file a certificate (to sue architects, some engineers, etc. for personal negligence)

can also be raised in answer. Also considered a pleading, so can be amended. (NOT ALLOWED in limited civil cases)
Demurrers are not granted or denied, they are sustained or overruled.
What is a motion to quash service of summons?
used to assert:
lack of PJ
improper process
improper service of process

must be made BEFORE or WITH a demurrer, answer or Motion to strike or else d WAIVES the defense!

Can't raise lack of PJ in an answer because it is a "general appearance" that waives PJ. have to make special appearance.

Ok to file it AT SAME TIME as answer, just not after
What if D's motion to quash is denied?
The moving party can only seek appellate review by "writ of mandate" from the court of appeal within 10 days of service of the written notice of entry of the order denying her motion.
When do you file a motion to dismiss or stay for inconvenient forum?
Waived if raised after a demurrer or a motion to strike, but you can make this motion after an answer.
What can a motion to strike affect?
Party can file to strike all or part of a complaint.

The court may strike "irrelevant, false, or improper matter."
What do you do in an answer?
D responds to allegations of complaint and raises affirmative defenses. (those not denied are admitted) (D allowed to file a short general denial to deny all allegations in complaint)

IN stating aff. defenses, need ultimate facts sufficient to constitute the elements of defense
If D fails to plead with ultimate facts to support affirmative defenese, what may a P do/
A P may file a demurrer to the answer.
How much time does D have to answer or file motions?
No later than 30 days after service of process is deemed complete. A motion to strike does not extend the time in which to answer or demur.

If a demurrer or motion fails, the D must anwer within 10 days after the ruling.
In fed court a D may assert a counterclaim, cross-claim, and impleader. What are the options for D in Cali?
All of the above, but they are all called cross-complaints.
How does D file a cross-complaint against a P?
Needs to be filed before or at the same time as the answer.

If arises out of same T/O, then it is compulsory, so it must be filed in this case.

If not same T/O, then D may raise it but won't lose it if he waits.
How does D file a cross-complaint against a co-party (another named defendant)
May be filed anytime before the court has set a trial date.

Must arise from same T/O.

It is never compulsory. May bring later case, if not now.
How does D go about a cross-complaint against a third-party defendant.
May be filed anytime before the court has set a trial date.

D party MAY join non-party.

never compulsory.

TPD may raise defenses that the defending party could have raised.

Right to join TPD is broader in state court- not just for indemnity or contribution, but for any underlying liability on the case arising from the same T/O
When a party is served a cross-complaint, how long do they have to respond?
30 days. And if it is served on someone who has not yet been served in the case it must be served with a summons. (like impleader in federal court)
What are the general rights to amend pleadings?
P has right to amend as a matter of course before D files an answer or demurrer.

After demurrer, but before hearing, a moving party may also amend as a matter of course.

Can seek leave to amend at anyime! (like fed)

Can amend to conform to evidence.

Court usually allows leave to amend after granting motion to strike or sustaining demurrer.

Relation back is possible to add new claims after SOL has run, if the new claim relates to the same general facts originally alleged.
Does relation back work when a fictitious D is involvd?
It is OK if the the complaint was filed before the SOL had run, and contained charging allegations against the fictitious D; and
P was genuinely ignorant of Doe's ID; and
P pleaded that ignorance in the original complaint.

SO, if the P substitutes the real D within 3 years of filing, it relates back.
How does a P go about getting discovery?
P must get a court order to take discovery from D within 10 days after D eas served with process ( 20 days to take D's depo).
How are depos siimilar and different under C/F?
Can have oral or written questions). Same as F- can depose any party or non-party, but should subpoena non-party to ensure attendance. Can only depose person once unless court orders otherwise.

CALI- no presumptive time limit on depo unless court orders it (7 hrs F); also no presumptive limit on no. of depos (no more than 10 in F unless parties or court agrees)
What are the limits on use of interrogatories in state court??
There are four form interrogatories that can be sent without limit to parties.

ONLY for Parties.

For drafting specific interrogatories, no subparts.

In an unlimited civil case, max number of 35, but can serve more w/ a declaration supporting the need for more

responding party can seek a protective order
Any limits for request for production?
No limits. But, to get production from a non-party may have to do a subpoena duces tecum for a deponent. "bring the stuff with you"
What restrictions on medical examinations?
Have to get a court order to get a medical examination of a party, but

An exception for PI cases. D has the right to ask for one of the injured party/plaintiff.

lawyer has right to attend physical exam. Need court order to attend mental exam.
Limits on Request for Admissions?
In an unlimited civil case, can get a max of 35 on a party. But, can ask court if you need more.

there is NO LIMIT on the number of requests to admit the genuineness of documents.
What are the discovery limits for a limited civil case?
Party can take 1 deposition.

Combined total of 35 RFP, RFA, and Interrogatories, inspection demands

can only get additional discovery with a court order.
Since there is no duty in Cali to supplement discovery responses if info was complete when given, how can a party get new information to old questions?
Requesting party will need to propound a "supplemental interrogatory".

Can only propound supplemental interrogatory or RFP twice before the trial date is set and only once after tha.
What issue are associated with the scope of discovery?
Standard: discover anything relevant--broader than admissible-- to SMJ (broader than F related to claim or def.)

No privileged material: must object with particularity!

Privacy protected, but balanced against the need for the information.

Work Product: Must be generated by Atty or her agent. (F any rep. of party gets work product privilege) (only discoverable where court determines denial of discovery will unfairly prejudice.

EXPERTS: any party may request simultaneous exchange of expert info (list of experts to testify, subject,). W/out exchange court may exclude expert from testifying.
Courts in Cali can sanction any party or attorney for discovery abuses. What sanctions are available?
1) monetary, for expenses atty fees due to misuse
2)establishment order
3) refusal to allow party to support its position with evidence at trial
4) striking pleadings
5) entering default judgment against D or dismisssing P's cause of action.

court will look to whether the abuse was wilfull.

Party seeking sanctions must indicate the type of sanction sought in the motion.
What are requirements for Cali class action/
"when the question is one of a common or a general interest, of many persons... and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all:
must show:
1)ascertainable class
2)well-defined community of interest:
a) whether common Q's predominate
b) the representative is adequate
c) the class will result in substantial benefit to the parties and the court.

unlike federal ( just one type of class action)
In Cali class actoins, is individual notice required to all potential plaintiffs?
Not required, may be accomplished by publication.
F-cost borne by class rep.
Cali- court decides how to allocate

note: all who do not opt out after notice are bound

court not required to appoint class counsel

aggregate claims to reach unlimited civil case threshold.
If the P seeks to dismiss before the trial starts, must the court dismiss without prejudice?
P can move for dismissal anytime before the trial, but it is up to the court. Also, up to court whether it is dismissed with prejudice or not.
When do Cali courts have discretion to dismiss a case for failure to prosecute?
If the case has not been brought to trial within two years after filing, court may dismiss.

If not brought w/in 5 years or process not served w/in 3 yrs of filing, it MUST be dismissed.
When can default judgment be entered by the clerk?
-D made no response
-claim is on a contract or judgment
-claim is for a sum certain in money
-D not served by publication
-P provides an affidavit stating relevant facts

Absent any of those being true, must go to judge.
How does a D accomplish the state equivalent of a 12(b)6 motion for failure to state a claim?
General demurrer for "failure to plead facts constituting a cause of action."
The right to trial by jury is similar to the federal court, how are procedures different.
F- the fact finder gets facts for law and then equity. Reversed in state court. Judge finds the facts at equity for both.

If law is incidental to equity, no jury trial at all.

Party must announce "demand" for jury trial at time case is set for trial or w/in 5 days of notice for setting trial.

There are 12 jurors, w/ alternates. If no alternates, trial continues unless party objects.
There are 3 peremptory challenges in a federal voir dire, how many in Cali?
Six. Unlimited strikes for cause.

Peremptory challenges may not be on basis of race, color, religion,sex, national origin, sexual orientation, or similar grounds. (this is broader than Fed--includes sexual orientation)
Jury must be unanimous in federal court, what about state?
No. 3/4ths of jurors , only need 9 of 12.
What is a motion for a directed verdict and when can it be asserted?
F- calls this JMOL, that R persons could not disagree as to the result.

Cali- can only move for this after close of all evidence.

Sometimes called a "motion for non-suit"
When can a JNOV be filed?
Same standard as JMOL; R persons couldn't disagree to result.

Must file notice of intention to move either before judgment or the earlier of:
15 days of mailing or service of notice of entry of judgment or
180 days after entry of judgment.

Diff than F- party moving doesn't have to have filed for directed verdict at trial.
When can one move for a new trial?
Same as JNOV.

Proper only if the error complained of resulted in a miscarriage of justice.

I.e., excessive or inadequate damages that "shock the conscience"
Under remittitur, can the court unilaterally lower the award?
No, the P must elect to proceed w/ remittitur in lieu of a new trial.

note: additur is allowed in state court, but considered unconstitutional in violation of 7th amendment.
When can a party file a motion to set aside judgment?
reasonable time, not to exceed 6 months after entry of judgment.

must include an affidavit of fault demonstrating the mistake.
What is the different appellate process for unlimited and limited civil cases.
Limited cases are appealled to the appellate division of a superior court, while unlimited civil cases are appealled to the court of appeals.

Notice of appeal must be filed in the TRIAL COURT! 60 days after notice of entry or 180 days after entry if no notice.

note: cannot appeal on merits until entire action is resolved.
What decisions are appealable using interlocutory appeal?
-order granting M to quash service of summons
-order granting inconvenient forum
- order granting new trial
-order denying M fo JNOV
-order denying cert.of class
-order granting, dissolving or refusing to do either to injunction
-order directing party to pay sanctions over 5k
What is an "extraordinary writ"?
If an order is not otherwise appealable, may seek higher court to issue writ to compel lower court to do something law requires.

Not routine, rarely used for discovery orders. Party must show:
1) will suffer irreparable harm
2)normal appeal is inadequate
3)beneficial interest in outcome of writ proceeding

This is only route of appeal for a denial of motion to quash service of summons.
What are the requirements of claim preclusion (res judicata)?
-same claimant against same defendant in case 2
-case 1 ended in a valid final judgment on the merits (any judgment on merits unless based on J, Venue, or indispensible parties

- same cause of action is asserted (F-T/O)
Cali-you get a cause of action for each right invaded- primary rights theory.*** So, can have two causes of action from same T/O (broader than F)
What are the requirements for issue preclusion (collateral estoppel)? (prevents relitigation of a particular issue)
-1st case ended on final judgment on the merits
- must have had litigation on the same issue (probably not get this from default judgment)
- issue was essential to case 1 and would be different without that issue

-can only be asserted against someone who was a party or represented by a party in Case 1.

- asserted by one who was a party to case 1.
What is nonmutual defensive issue preclusion?
used by one who was not a party in Case 1, but who is a D in case 2, and the jury had full chance to hear it litigated in case 1.
What is nonmutual offensive issue preclusion?
used by one who was not a party in case 1 and is now a P in case 2.

will turn on whether it is ultimately fair to the D (if P had chance to join in the first time, etc.)