California Civil Procedure

Front 1

Personal jurisdiction

Back 1

(Can P sue D in this state?) (CA same analysis)
A. P must satisfy the statute; or
i. D present and personally served; D domiciled in forum state, consent to personal jx (there without raising defense)
ii. Is there a long-arm statute?

Front 2

What are the constitutional requirements for PJ.

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i. To have personal jurisdiction over the D, there must sufficient minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.

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Minimum Contacts (PJC Reqs)

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1. Minimum Contacts: results when the D purposefully availed herself of the forum state’s laws and knew or reasonably should have anticipated that her activities in the forum made it foreseeable that she may be haled into court.

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Fair and Reasonable (PJC Reqs)

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a. if the claim is related to the D’s conduct
b. If the D engages in systematic and continuous activity.
c. Other factors
i. Convenience of Forum: Jurisdiction is also fair and reasonable depending on whether the forum is so gravely difficult and inconvenient that the D is at severe disadvantage
ii. Judicial Economy
iii. State’s Interest: The state has a legitimate interest in providing redress for its resident.
iv. P’s interest in obtaining convenient and effective relief.

Front 5

Notice (PJC Reqs)

Back 5

D must be notified of the lawsuit by a reasonable method and given an opportunity to appear and be heard.

Front 6

Subject matter jurisdiction (In what court can P sue?

Back 6

To have SMJ over the D, there must be diversity of citizenship between the parties (at the time case filed), and the amount in controversy must exceed $75,000 (excludes interests and costs) or there must be a federal question.

Front 7

Diversity


B. To have subject matter jurisdiction over the D, there must be a federal question (claim arises under federal law)
i. Federal Question: there is no amount in controversy requirement; citizenship of parties is irrelevant.
1. Ask: Is P enforcing a federal right? If so, it invokes federal question jx

Back 7

There is no diversity of citizenship if any plaintiff is a citizen of the same state as any D

Front 8

Domicile (Natural Person)

Back 8

Domicile is determined by physical presence in a jurisdiction and subjective intent to make it one’s permanent home.

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Domicile (Corporation)

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Citizenship of corporations is determined in all states of incorporation or principal place of business.
a. Principal place of business is determined to be the headquarters (nerve center test) or where the corporation does more production or service activity (muscle center) than anywhere else.

Front 10

Domicile (Class Action)

Back 10

Citizenship of class representative

Front 11

Federal question

Back 11

P must be enforcing a federal right. there is no amount in controversy requirement;
citizenship of parties is irrelevant.

Front 12

CA: Subject Matter Jurisdiction

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A. Superior Court: Hears any kind of civil case
B. Classifications: (doesn’t include fees/costs)
i. Limited: $25,000 or less (P must label case)
ii. Unlimited: Exceeds $25,000
iii. Small Claims: If P is individual, $7500 or less; If P is entity, $5000 or less
D. Aggregation: Proper if one P v. one D.

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Supplemental Jurisdiction

Back 13

A. To have supplemental jurisdiction over the D, once in federal court, must assess every other claim asserted for subject matter jurisdiction.
i. Test: claim arises from same nucleus of operative fact with claim that originally got case into federal court (same transaction or occurrence as original claim)
ii. Limitation: No supplemental jx over claims asserted by P, in diversity, and would violate complete diversity
iii. DISCRETION of court not to hear supplemental claims if: FQ dismissed early; state law claim complex/predominates.

Front 14

Venue

Back 14

A. Transitory Action: Plaintiff may lay venue in any district where all Ds reside or a substantial part of the claim arose
i. Residence usually is one’s domicile and is therefore the same as their citizenship for purposes of diversity.
ii. Corporations reside in all districts where it is subject to personal jurisdiction at case filing.
iii. CA: Venue proper in county where any D resides at commencement of action
1. Corporations (PPB; K performance; breach occurrence/liability arises)
B. Local Action: (ownership, possession, injury to land)
i. Venue = district land lies
ii. CA: county land lies

Front 15

Transfer of Venue

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Transfer of venue can only go from federal district court to another where there is proper venue and personal jurisdiction over D.
i. Venue in original forum proper: may be transferred because of convenience
1. Public Factors (what law applies; burden to community)
2. Private Factors (location of witnesses/evidence)
ii. Venue in original forum improper: interest of justice/dismiss case

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Substituted Service of Process Rules for CA

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1. Only available if personal service cannot with reasonable diligence be had.
2. Requires: Ds usual abode/mailing address; competent member of house of 18 years of age; must be informed of contents; process also mailed by 1st-class mail; effective 10 DAYS after mailing
3. Corporations = agent, officer, manager; personally or substituted
4. Publication: only after reasonable diligence to serve D another way

Front 17

Service Methods

Back 17

Personal
Service by Mail
Substituted
Waiver by mail-OK by D if process served to D by first class mail and D returns form within 30 days (CA: 20 days)
Geographic Limitation-Process served to D in other state; only OK if forum state allows (CA: OK in any manner allowed by CA law; by mail).

Front 18

Pleadings

Back 18

CAR 11 CCAP
Complaint
Answer
Responses
Rule 11
Cross Claims
Counter Claims
Amended Pleadings

Front 19

Pleading Type CA and Federal

Back 19

Federal: Notice pleading (notice of claim; allows for meaningful response);
CA: Fact pleading: pleader must state "ultimate facts"

Front 20

Complaint-Federal and CA

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A complaint commences the action and states the subject matter jurisdiction, short and plain statement of the claim (P entitled to relief), and demand for judgment.
Fraud, mistake, special damages must be plead with particularity.
CA: Statement of facts, demand for judgment (amount needed); Exception = Personal injury, wrongful death, punitives (must NOT state amount) but may seek statement of damages and P must provide within 15 days
iii. Fact pleading = heightened pleading (fraud, civil conspiracy); verified pleadings (signed under penalty of perjury; Doe Ds (genuinely unaware of identity + cause of action against Doe)

Front 21

Federal Responses

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Responses by motion or by answer within 20 DAYS after service of process and must respond to allegations or raise affirmative defenses. (Rule 12 motions)
i. Form Issues: motion for more definite statement (pleading so vague so cannot frame a response), motion to strike (immaterial things)
ii. Defenses: lack of SMJ (ANY time), lack of PJ, improper venue, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief can be granted (before or during trial), failure to join indispensable party (before or during trial)

Front 22

Which Rule 12 motions are waived if not included in the first Rule 12(b) motion?

Back 22

Waivable motions are lack of PJ, improper venue, insufficiency of process, and insufficiency of service of process.

Front 23

California Responses

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CA: 30 DAYS after SoP complete (no extra time if waived by mail)
1. Defensive Responses:
a. General demurrer (P failed to state facts sufficient to cause state of action; OK to use to challenge SMJ);
b. Special demurrer (complaint uncertain, motion for more definite statement, unintelligible; not available in limited civil cases);
i. motion to quash service of summons (to challenge PJ by special appearance; to challenge service of process; must be made before/with filing of demurrer/motion to strike; denial = moving party can only seek appellate review by writ of mandate from court of appeal within 10 DAYS); motion to strike (improper, irrelevant; false matter)

Front 24

Answers-Federal and CA

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10 DAYS of denial of D’s Rule 12 motion; or 20 DAYSof SoP if no motions; or 60 DAYS of date P mailed waiver if D waives
i. D serves answer to complaint by: responding to allegations (admit, deny, lack sufficient info)(failure to deny = admission except on damages); raising affirmative defenses (if not plead = risk of waiver thus MUST raise)
ii. CA: same; 30 DAYS after SoP complete. If demurrer overruled, D must answer within 10 DAYS of ruling.

Front 25

Counter Claims

Back 25

Counterclaims are offensive claims against an opposing party which can be raised in the answer.
i. Compulsory-A claim is compulsory if it arises from the same T/O; filed in D’s answer or waived
ii. Permissive A counter claim is permissive if does not arise from the same T/O.
1. Note: Assess if counterclaim (compulsory or permissive) invokes federal SMJ (diversity or FQ); if it fails to invoke either, assess supplemental jx.
iii. CA: Cross-complaints

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Cross-claims are offensive claims against a co-party and must arise from same transactions or occurrences but are never compulsory.
i. CA: Cross-complaints against P (same as fed); against co-party (same as fed).

Back 26

Cross-claims are offensive claims against a co-party and must arise from same transactions or occurrences but are never compulsory.
i. CA: Cross-complaints against P (same as fed); against co-party (same as fed).

Front 27

Right to Amend-Federal

Back 27

1. A P has a right to amend once before D serves his answer.
a. D must respond within 10 DAYS or amount left on his 20 DAYS, whichever longer
2. A D has a right to amend once within 20 DAYS of serving his answer.
3. If no right = leave of court required and court will grant “if justice so requires” (granted unless delay/prejudice)

Front 28

Right to Amend-CA

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4. CA: P may amend before D files answer/demurrer OR after demurrer/before trial is OK as a matter of course
a. Any party can seek leave to amend anytime (court DISCRETION)

Front 29

Relation Back Federal

Back 29

Relation Back (SOL) Adding parties
1. Amended pleadings relate back to the date of the original filing if they concern the same conduct, transaction, or occurrence as the original pleading.
2. Amended pleadings changing a D after a statute runs relates back if same transaction or occurrence as original; new D knew of the action within 120 DAYS of filing, and new D knew that but for the mistake it would have been originally named.

Front 30

Relation Back CA

Back 30

CA: OK to change D after SOL run if misnomer (P sued wrong D, right D knew about it)
a. Fictitious Ds (Does): Proper if original complaint filed before SOL (with Does); P genuinely ignorant of identity of Doe; pleaded ignorance in original complaint (3 YEARS to substitute Ds and it will relate back)

Front 31

Joinder of Parties

Back 31

Joinder (Mandatory and Permissive)
Impleader
Intervention
Interpleader
Class Action

Front 32

Joinder Types

Back 32

Permissive Joinder (CA: same)
i. Ps and Ds may be joined if their claims arise out of the same T/O as underlying action and raise a common question. (don’t forget to assess SMJ)
Mandatory Joinder (“necessary party”): (CA: same)
i. Absentees (necessary and indispensable parties’) joinder will be compelled if complete relief cannot be obtained without their presence, absentee’s interest may be harmed, or absentee claims an interest which subjects a party to multiple obligations. Not feasible where: no PJ; destroy diversity; valid objection to venue.

Front 33

Impleader-CA and Fed

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Impleader is a claim involving a third-party D for indemnity or contribution which must be filed within 10 DAYS of serving answer
i. P can then assert claim against and vice-versa if same T/O
ii. CA: same, but broader. Indemnity, contribution + any claim that 3PD liable if same T/O

Front 34

Intervention

Back 34

Intervention allows an absentee to join a pending suit.
Intervention of right allows an absentee to join a suit if her interest may be harmed if not joined and her interest is not adequately represented now.
Permissive intervention allows the court to decide joinder if a claim or defense and the pending case have at least one common question and won't destroy diversity (court discretion unless delay/prejudice)

Front 35

Interpleader

Back 35

Interpleader is where a stakeholder forces all potential claimants into a single lawsuit to avoid multiple lawsuits and inconsistency. By Rule of State – Div, amt, service, venue

Front 36

Claim Joinder

Back 36

Once made a party to a suit, that party may raise any claim over which the court has SMJ.

Front 37

Class Action Requirements

Back 37

CANT
Commonality
Adequacy of representation
Numerosity
Typicality
A class action occurs where a representative sues on behalf of a group. The P must show numerosity is impracticable for normal joinder, typicality of claims or defenses, commonality of question of law or fact, and adequacy of representation.

Front 38

Class Action Types & Notice Requirements

Back 38

1) prejudice (necessary to avoid harm);
2) injunctive/declaratory;
(1 & 2 No notice req./no opt out)
3) damages (best way to handle because common questions predominate)

In class actions for damages, all reasonably identifiable members must be notified, they must be informed of...
their ability to opt out, that the class judgment is binding on all class members, and that they can enter a separate appearance through counsel.

Front 39

Class Action Certification

Back 39

“At early practicable time” in certifying the class the court must define the class, claims, issues, or defenses and appoint a class counsel who must fairly and adequately represent the interests of the class.

Front 40

Termination of a Class Action Suit

Back 40

Settlement or dismissal of class claims require court approval

Front 41

Class Action SMJ

Back 41

SMJ based on the representative's diversity and the rep’s amount in controversy

Front 42

CA Class Action Suit Rules

Back 42

CA: Requires 1) ascertainable class; 2) well-defined community of interest (common questions predominate; substantial benefit to parties & court; representative is adequate)
1. Notice: NO and can be by publication /cost determined by court
2. Opt Out: Members are bound who do not opt out
3. Class Counsel: No court appointment of class counsel
4. Settlement/Dismissal: Approval by court required

Front 43

Discovery Scope-Fed and CA

Back 43

A. Relevance: (anything relevant to a claim or defense; relevant is anything reasonably calculated to lead to admissible evidence.)
i. CA: anything relevant to subject matter
ii. Privileged Matter: NOT discoverable (CA: same; responding party objects and identify docs, author, date, special privilege claimed all in privilege log)
B. Privacy: CA recognizes right of privacy (limits discovery)

Front 44

Required Disclosures

Back 44

1. Initial (within 14 DAYS of 26(f) conference): identify persons/docs; computation of damages claimed; copies of insurance agreements
2. Experts: identify to be used at trial; written report = opinions, methodology, qualifications, compensation
3. Pre-Trial Disclosures: no later 30 DAYS before trial; detailed evidence = docs, identity of witnesses
(CA: No such thing as required disclosures)

Front 45

Discovery Tools

Back 45

Depositions
Interrogatories
Requests to Produce
Physical/Mental Examination
Request for Admission
Duty to Supplement

Front 46

Pretrial Adjudication

Back 46

i. Voluntary Dismissal
ii. Involuntary Dismissal
iii. Dismissal for Failure to State Claim (12b6)
iv. Default judgment
v. Summary judgment

Front 47

Voluntary Dismissal

Back 47

P files written notice of dismissal once without prejudice; D serves answer/moves for SJ. On P's second written notice of dismissal, the case is dismissed with prejudice.
3. CA: P can anytime before trial commences/court discretion

Front 48

Involuntary Dismissal

Back 48

1. Court DISCRETION if case not brought to trial within 2 YEARS of filing
2. Mandatory dismissal required > 5 YEARS
(CA: Same)

Front 49

Dismissal for Failure to State Claim (12b6)

Back 49

1. The court looks at face of complaint (not evidence); with the assumption that all allegations are true, and the P would not win a judgment; must be done before filing an answer
2. CA: Failure to plead facts constituting cause of action = a general demurrer

Front 50

Default judgment

Back 50

DJ occurs where D fails to respond within 20 days after service of process.

Front 51

Summary judgment

Back 51

SJ is aimed at determining whether there is any need for trial (the only need for trial is to resolve disputes of fact); moving party must show (in light most favorable to non-MP) that no genuine dispute of material issue of fact, and that he is entitled to judgment as a matter of law; must be filed after the answer. (court can only consider evidence)
1. CA: Same standard as Fed
2. Burden Shifting: Burden shifts to opposing party to demonstrate triable issues of fact exists; MP must file and serve separate statement of material facts she claims is undisputed with supporting evidence for each fact
a. Opposing party responds indicating facts she believes in dispute + supporting evidence for each fact

Front 52

Trial, Judgment, and Post Trial Motions

Back 52

i. Jury Trial
ii. Motion for Judgment As A Matter of Law (JMOL) (CA: Motion for Directed Verdict)
iii. Renewed Motion for Judgment As Matter of Law (RJML) (Judgment notwithstanding the verdict-JNOV)
iv. Motion For A New Trial
v. Additur and Remittitur

Front 53

Jury Trial-Fed & CA

Back 53

Fed: A jury trial must be demand within 10 DAYS of last pleading, 7th Amendment preserves right to jury trial in EQUITY but not law. If case involves both, resolve the legal issues first.
CA:a. CA: 7th amendment doesn’t apply but same principles (but court tries equity issues first)

Front 54

Motion for J as a matter of law

Back 54

Fed: JMOL-A JMOL will be granted where there is no substantial evidence and reasonable people could not disagree as to the result. Courts generally view evidence in light most favorable to nonmoving party
CA: Motion for Directed Verdict – This is called a motion for non suit if motion made after P goes

Front 55

Renewed Motion for Judgment As Matter of Law

Back 55

Fed: RJML-Occurs where the jury reached a conclusion reasonable people could not have reached; must be done at the close of all evidence (within 10 days of entry, losing party asks court to set aside verdict and enter in its favor)
1. To bring motion, party must have moved for JMOL at close of evidence as prerequisite
CA: (Judgment notwithstanding the verdict-JNOV) Uses federal standard but the party is not required to make motion for directed verdict at trial.

Front 56

Motion For A New Trial

Back 56

A motion for a new trial will be granted for...
prejudicial error:
new evidence that could not have been obtained with due diligence for the original trial,
prejudicial misconduct of party; OR attorney, judgment is against the weight of the evidence;
Motion must be done raised within 10 DAYS after judgment.

CA: same except that error must have resulted in a miscarriage of justice

Front 57

Federal Appeal Rules

Back 57

Final Judgment Rule – only can appeal final judgments -- ultimate decision by trier of fact on merits. Filed w/in 30 DAYS of entry of final judgment. Denial of MSJ-no. Denial of new trial-yes. Denial or grant of motion to remand-no. Denial or grant of RJOML-yes.
Interlocutory Appeal - can appeal even w/out final judgment. Class actions – ct of appeals has discretion to review certification of class. Must seek review w/in 10 DAYS and does not stay proceedings at trial level unless an order is given.

Front 58

California Appeal Rules

Back 58

A. Timing – usually earlier of 60 DAYS after mailing of notice of judgment or 180 DAYS after entry of judgment
B. Limited Civil Cases – appeals to appellate division of the superior court not the CA ct of appeals
C. Interlocutory Review – if not appealable can seek a writ of mandate or writ of prohibition from the CA Ct of Appeals. Must demonstrate irreparable harm and the normal rout of appeal at final judgment is not adequate. Usually for something like appealing lack of PJ.

Front 59

Res Judicata

Back 59

“claim preclusion”
A 1) valid final judgment 2) on the merits in a previous case is binding on future cases in certain circumstances.
Final-when the judgment is rendered
CA its at the conclusion of all appeals. There must be the same Ps with the same Ds. The CoA must be the same from the previous cases (in Fed Court, all claims that arise from same T/O) The COA has to actually been litigated or could have been.

Front 60

Collateral Estoppel

Back 60

“Issue preclusion”
A judgment is conclusive in any subsequent action where the issues were actually litigated and essential to the judgment.
Mutuality-It used to be that mutuality had to apply but modernly it has been eroded. This erosion allows a ‘stranger’ to rely on CE when
1) issue must have been identical between the two cases,
2) final judgment on the merits,
3) party that is being CE had a fair opportunity to be heard
4) is it fair and equitable to apply CE and
5) (in CA) the party against whom CE is being used is in privity with the party from the first case.