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167 Cards in this Set
- Front
- Back
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What is the first stage of a civil case? |
The pleading stage |
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What is the pleading stage? |
The formal allegations by the parties of their respective claims and defenses for the judgement of the Court. Includes complaint, demurrer, answer (def) and cross complaint |
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What is the first day of the lawsuit? |
The complaint filed |
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What is a complaint |
First paper of civil suit filed by plaintiff; identifies parties, describes nature of claim and damages requested |
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What happens after the complaint? |
Summons is issued by court clerk |
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What is a summons? |
Gives defendant notice of lawsuit and advises of obligation to appear |
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After the summons what happens next in the pleading stage? |
Service of process |
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What is service of process |
An invitation to the lawsuit. Plaintiff must cause to be served the summons and complaint to the defendant |
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What are the methods of service of process |
Actual delivery, substitute service, constructive service |
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CCP 415.10 Actual delivery |
A summons may be served by actual delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery. D has 30 days to answer |
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CCP 415.20 Substitute Service |
Can serve defendant “during usual office hours in his office” by leaving summons and complaint with person over 18 apparently in charge and thereafter mailing summons and complaint to defendant at that address. “Service of a summons in this manner is deemed complete on the 10th day after mailing.” |
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CCP 415.50 Constructive Service |
A summons may be served by publication if upon affidavit it appears to the satisfaction of the court after party to be served cannot with reasonable diligence be served in another manner. |
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CCP 415.30 Notice and Acknowledgment |
A summons may be served by mail as provided in this section. A copy of the summons and of the complaint shall be mailed (by first class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment and a return envelope, postage prepaid, addressed to the sender.”Service deemed complete when N&A signed |
Served on voluntary defendants like businesses |
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30 days after service of process is completed and the defendant has not appeared the plaintiff may request this |
entry for default judgment |
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If Plaintiff requests default judgment what can the defendant do? |
File a motion to set aside default judgement. |
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What does set aside default judgment mean? |
Defendant's request to appear in lawsuit and defend |
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What is a motion to quash |
Defendant appears specially to challenge jurisdiction (D has no connection with forum state and court cannot exercise jurisdiction over him) or validity of service (served improperly). Must be made within 30 days from service. If not its waived |
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Motion to change venue |
Because the plaintiff gets to choose where to file, D can object if venue incorrect |
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What is a demurrer? |
D can file a motion to demurrer if the complaint fails to state a cause of action; pleading is uncertain, ambiguous or unintelligible. Must be made within 30 days of service |
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What is a motion to strike? |
D files a motion to strike any irrelevant, false, or improper matter inserted in the pleading |
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What is an answer to complaint? |
Defendant's formal response to complaint. D can admit, deny any allegations of complaint; and set affirmative defenses |
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Cross-complaint? |
By defendant against P or new party. Must be filed with answer |
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What is the discovery stage? |
Both parties gather evidence. Consists of depositions, interrogations, inspection demands, examinations, admissions, expert witnesses, and case management |
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What is deposition? |
Testimony under oath outside of court with same force and effect of testimony in trial. May be used on party or non-party |
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Interrogation? |
Written questions to opposing party answered under oath |
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Inspection demands |
request to inspect, copy, test, sample documents, enter property |
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Requests for admissions |
Parties admit to fact, liability, genuineness of documents |
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Discovery of Expert Witnesses |
simultaneous exchange of information |
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Case Management |
periodic visits to court to ensure case is resolved within statutory timelines |
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What is the final stage of a lawsuit? |
The resolution stage |
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What is the resolution stage? |
Consists of mediation, motion for summary judgement, motion for summary adjudication, mandatory settlement conference, and trial. |
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Alternative dispute resolution |
If parties settle they file a dismissal with prejudice with ends action. |
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Motion for summary judgement |
Parties submit evidence Court looks to see if there is an issue of fact to be decided by trial. If no issue of fact, moving party entitled to judgement as a matter of law |
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Motion for judgement on pleadings |
When complaint , answer, or cross complaint fails to state a cause of action or a defense |
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Mandatory Settlement Conference |
parties appear in court and try to settle case with judge or with lawyer volunteering to help the court |
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Post trial motions |
motion for new trial, motion for judgement notwithstanding the verdict |
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Plaintiff |
Petitioner, claimant |
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Defendant |
Respondent |
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Jurisdicition |
power of court to issue binding rulings |
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certiorori |
review of case by Supreme Court of The U.S. |
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How long does it take for lawsuit |
100% completed within 2 years |
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Common Law |
law made by courts |
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statutory law |
law made by legislature |
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Domicile |
Home; Where you plan to live indefinitely |
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original jurisdiciton |
where the case is filed, developed, tried. Can be state or federal |
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Trier of fact |
trial judge or jury or both |
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Courts of original jurisdiciton |
trial court |
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What is civil procedure? |
Stages of a civil lawsuit and the procedural devices that correspond with these stages |
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Subject Matter Jurisdiciton |
power of the court to hear a certain type of case |
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State courts have which type of subject matter jurdicition |
General jursidiction |
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General jursidiction |
States can hear any case as long as its not inconsistent with the US Constitution or apart of the handful of cases that are exclusive to the federal court (copyright, tax, admiral, bankruptcy) |
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B in SV, CA legislature enacts a law permitting plaintiffs to file copyright infringement cases in local courts. OK? |
B. No That law would be inconsistent with the US Constitution |
A. Yes. CA courts have broad j/d and wish to protect its citizens B. No. That law would be inconsistent with the US Constitution |
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Your LL fails to return your deposit of $1,000. Can you sue her in small claims court? |
A. Yes. This is an action for money involving $10,000 or less |
A. Yes, his is an action for money involving $10,000 or less B. No. Superior court has exclusive j/d over matters involving real property |
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LL sues to evict tenant in small claims court. Tenant is growing MJ in violation of lease. The monthly rent is $2,000. Ok? |
B. No. The small claims court does not have j/d over this dispute |
A. Yes. This is an action for money involving $10,000 or less B. No. The small clams court does not have j/d over this dispute C. No. This matter should be heard in criminal court. |
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You agree to paint a house for $15,000. Owner doesn't pay you. You sue in small claims court. Owner objects to the court's jurisdiction. The court should: |
B. Overrule the objection. The court has j/d over dispute but damages limited to $10,000 |
A. Sustain the objection. Small claims court does not have j/d over the dispute B. Overrule the objection. The court has j/d over dispute but damages limited to $10,000 |
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Federal courts have what kind of jursidiction? |
limited jurisdiction- can only hear cases allowed by U.S. Constitution (bankruptcy, copyright, admirality, and tax) |
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Two ways to get federal jurisdiction |
Federal question and diversity |
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Rule for federal question |
28 USC 1331: district court shall have original jurisdiction over civil actions arising out of the U.S. Constitution, treaties, or federal laws |
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Rule for diversity jurisdiction |
28 USC 1332: district courts have original jurisdiction of all civil actions where the matter in controversy exceeds $75,000 and is between citizens of different states |
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Concurrent jurisdiction |
Cases that can be brought in both federal and state courts |
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Removal |
28 USC 1441: Any civil action brought in a state court of which the district courts have original jdx may be removed by D to the district court for the district embracing the place where the action is pending. |
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Remand |
28 USC 1447: P can challenge removal in federal court by motion to remand w/in 30 days of removal |
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Writ |
an official order |
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State of incorporation |
State where corporation is incoporated |
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Tribunal |
Court |
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Docket |
A formal list of cases registered with a court of law and set down for trial or hearing |
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Codify |
the process of collecting and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code |
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Burden of persuasion |
The party's duty to convince the fact-finder to view the facts in a way that favors that party |
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Vacate |
render void |
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Aggregation |
Plaintiff can sue Defendant in one lawsuit for every claim she has, even if totally unrelated, in order to meet jdx amount |
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Supplemental jurisdiction |
If a single P meets the amount in controversy minimum, co-plaintiffs may join even if their claims are less as long as their case relates to main P. |
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Jurisdiction Jurisprudence |
If the court determines at any time that it lacks subject matter jdx, it must dismiss the case. |
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Well-pleaded complaint rule/ Mottley Rule |
Basis for federal question must be in plaintiff's complaint |
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Holmes Creation Test |
A suit arises under federal law when it arises under the law that creates the cause of action. |
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Original jdx |
Where a case is filed, heard , and tried |
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interlocutory appeal |
an appeal of a ruling by a trial court that is made before the trial itself has concluded. |
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Forum shopping |
the practice adopted by some litigants of having their legal case heard in the court thought most likely to provide a favorable judgment. |
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Non jurisdictional objections |
objection not based on jurisdiction |
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Removal Rule |
28 USC 1441: Any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant to the district court of the United States for the district embracing the place where such action is pending. |
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Exception to removal rule |
28 USC 1441 (b) (2) No removal if jdx based on diversity and any defendant is a citizen of the forum State in which such action is brought. |
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Rule for Remand |
28 USC 1447 : A motion to remand the case…must be made within 30 days after the filing of the notice of removal. If at any time before final judgment it appears that the court lacks subject matter jdx, the case shall be remanded.” |
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Removal with multiple defendants |
All defendants must agree regardless of whether federal SMJ is based on diversity or federal question |
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Intervivos trust |
a fiduciary relationship used in estate planning created during the lifetime of the trustor |
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Beneficiary |
An organization or a person who receives the benefits of the trust. |
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Adjudicate |
the legal process of resolving a dispute |
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testamentary trust
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goes into effect upon the death of the trustor |
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What is service process |
how court acquires jdx over defendant |
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State long arm statute |
CCP 410. 10 “A COURT OF THIS STATE MAY EXERCISE J/D ON ANY BASIS NOT INCONSISTENT WITH THE CONSTITUTION OF THIS STATE OR OF THE UNITED STATES.” |
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Federal long arm statute |
Federal Rule 4 Federal court can only exercise PJ over a D if the courts of the state could. |
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CCP 415.45 Service on out of state defendant |
A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons of the complaint to the person to be served by first-class mail, postage pre-paid, requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing.” |
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How can defendant object to service or jdx |
Within 30 days of service, D can file a motion to quash service of summons on the ground of lack of jdx of the court over him. |
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Setting aside a default |
When service of a summons has not resulted in actual notice to a party in time to defend the action and a default has been entered against him, the party may serve a file a notice to set aside the default. |
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Civil judgement |
lawsuit resolution in civil court |
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Personal jursidiction |
the power of the court to compel a person to appear in court and participate in lawsuit |
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appeared specially |
A party makes a special appearance before a state court for the sole purpose of objecting to the court's jurisdiction over that party. |
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collateral attack |
can permit default to be taken and challenge service then |
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general jurisdiction |
Courts ability to exercise jurisdicition over its citizens |
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specific jurisdiction |
Courts ability to exercise jurisdiction over out of state defendant where they have certain minimum contacts, suit arises out of contacts and it's fair |
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In rem jurisdiction |
If out-of-state defendant owned property in the state, state could properly exercise power over the property |
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FRCP Rule 12 (h) |
A party waives any defense ) [lack of j/d over the person, improper venue, insufficiency of process, or insufficiency of service of process] by failing to make it by motion [to dismiss] under this rule |
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Full faith and credit |
addresses the duties that states within the United States have to respect the "public acts, records, and judicial proceedings of every other state." |
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Judgment proof |
if you don’t have any income or property that the creditor can legally go after, then you are what is often referred to as judgment proof. |
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Long arm statute |
A COURT OF THIS STATE MAY EXERCISE J/D ON ANY BASIS NOT INCONSISTENT WITH THE CONSTITUTION OF THIS STATE OR OF THE UNITED STATES |
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purposeful availment |
an intentional act by one party directed into a particular state, thereby permitting that state to constitutionally assert personal jurisdiction over that party. |
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inconveneient forum |
a discretionary power that allows courts to dismiss a case where another court, or forum, is much better suited to hear the case. |
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sovereignty |
jurisdiction |
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choice of law provision |
a term of a contract in which the parties specify that any dispute arising under the contract shall be determined in accordance with the law of a particular jurisdiction |
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forum selection clause |
a contract with a conflict of laws element allows the parties to agree that any litigation resulting from that contract will be initiated in a specific forum. |
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Minimum contacts for corporation test |
Contracts with buyer, shipped goods to state, knew goods would be sold and used in state, made money from state citizens |
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How many minimum contacts needed? |
1 according to McGee v. Int'l life |
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Stream of commerce |
If a corporation delivers its products into the stream of commerce with the expectation that its products will be purchased by consumers in the forum state, courts in the forum state may have adequate personal jurisdiction over the corporation in product liability cases. |
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Product liability |
a manufacturer or seller being held liable for placing a defective product into the hands of a consumer. |
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Indemnification |
to compensate that party for loss or damage that has already occurred, or to guarantee through a contractual agreement to repay another party for loss or damage that occurs in the future |
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purposeful availment |
defendant's voluntary act to reach out into the forum state was for some benefit to himself. |
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Zippo test |
the greater the commercial nature and level of interactivity associated with the website, the more likely it is that the website operator has "purposefully avail[ed] itself" of the forum state's jurisdiction. |
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Calder v. Jones test |
a) an intentional action, that was (b) expressly aimed at the forum state, with (c) knowledge that the brunt of the injury would be felt in the forum state |
actions targeted at forum state |
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Waiver |
the forum state did not have jurisdiction over a defendant, but the defendant did not object. |
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Consent |
Parties can agree to be bound by the ruling of a court that has subject matter jurisdiction |
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Transient Presence |
personal jurisdiction over a defendant who is served with process while in the forum state only temporarily such as during travel. |
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Rule for stateless citizens |
Cannot bring a federal diversity case against a stateless person |
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Exception to Well-pleaded complaint rule |
if a federal issue is embedded in the state-law claim |
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CCP 415.45 Nail and mail |
Unlawful detainer actions only. Requires order from court after 3 reasonable diligent efforts. posting and mailing required. |
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Mullane v. Central Hanover Bank |
When notice is a person's due process, a mere gesture is not due process |
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Service of Process in Federal Court |
FRCP 4 (e) Can serve by any of the methods in FRCP (personal service, sub service at home or office, or delivery to agent for SOP; OR by any method approved by the state where the federal court sits. |
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Objecting to service of proces |
Motion to quash Motion to dismiss Collateral attack |
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Int'l Shoe v. Washington |
1. defendant must have minimum contact with forum state 2. cause of action rises out of minimum contact 3. fair to exercise jdx |
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Daimler v. Bauman |
For individual the exercise of general j/d is the individual's domicile For a corporation it is where a corporation is at home & PPB |
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Hanson v. Denckla |
defendant must purposefully avail itself |
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WW VW v. Woodson |
Foreseeability alone not enough to establish PJ PJ reasonable when (1) D has contacts with state; (2) contacts purposeful or deliberate (3) claim arises out of contacts (4) j/d fair and reasonable |
1 added to min. contact test |
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Ashai Metal v. Superior Court |
Manf. has awareness that its produce will flow into marketplace Manf. makes $$ and product travels in marketplace |
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McGhee's factors for fairness |
1. Closeness between minimum contact and cause of action 2. Burden on the defendant 3. Interest of the forum state |
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CCP 397 Venue |
1. where D lives 2. In PI cases, where accident occurred 3. K: where K entered, where K performed, D lives 4. Real property: where property located |
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28 USC 1391 federal venue statute |
A civil action brought in 1. any judicial district in which D lives 2. judicial district where c/a, omission giving rise to the claim, or where property is situated 3. in judicial district where D is subject to PJ |
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State: Challenges to Venue |
Motion for change of venue Forum non conveience |
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Federal: Challenges to venue |
Motion of change of venue Forum of non convenience Judge can transfer case to another court in his court system |
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What are pleadings |
formal allegation by the parties of their respective claims and defenses for the judgment of the court |
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CCP 425.10 Elements of Complaint |
1. statement of the facts constituting the cause of action in ordinary and concise language 2. demand for judgment for the relief to which the pleader claims to be entitled |
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FRCP 8: elements of complaint |
1. short and plain statement of the grounds for court's jdx 2. short and plain statement of the claim showing pleader is entitled to relief 2. a demand for relief sought |
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FRCP 9: Heightened Pleading |
In alleging fraud or mistake a party must state with particularity the circumstances constituting fraud or mistake |
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Plausible Pleading |
pleading with particularity |
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Iqubal/Twombly cases |
P needs more than just a statement of elements of the violation; needs facts to show wrongdo |
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Leatherman case |
Federal courts cannot impose heightened pleading standards on any cases other than fraud or mistake |
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Defendant's options to respond to complaint |
Answer Demurrer Motion to dismiss Motion to strike Motion to quash Do nothing |
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What is a default? |
D's failure to file a response within (30 d for State or 21 d for federal) P files a notice of entry of default After default entered, P may apply for default judgment |
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CCP 473 (b) Setting Aside defaults |
Court may set aside default if mistake, inadvertence (oversight), excusable neglect if attorney's mistake inadvertence if accompanied by affidavit from lawyer |
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CCP 473.5 Setting Aside defaults |
May set aside default if service did not result in actual notice |
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CCP 431.30 Elements of an answer |
Answer to a complaint must contain: 1. general or specific denial of the material allegations 2. affirmative defense 3. Affirmative relief may not be claimed in the answer |
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FRCP 8 (c) Affirmative Defense |
Failure to mitigate Comparative fault Statute of frauds Statute of limitations Set Off Res Judicata |
zero frocss I don't need no frauds |
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Types of Cross complaints |
Compulsory: D v. P for same TOSTO Permissive: D v. P for unrelated claim or D v. third party for same TOSTO |
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Challenges to sufficiency of complaint |
Demurrer" failure to state c/a; pleading uncertain Motion to strike: irrelevant false or improper matter |
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CCP 472: Amending Pleading before filing of answer |
Pleading may be amended once by the party before answer is filed or before hearing on demurrer |
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CCP 473: Amending Pleading after filing of answer |
If party want to amend pleading after time has passed, must obtain leave of court or stipulation of the parties |
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FRCP 15: Amending complaint |
Amend once as of right w/in 21 days of service or 21 days after service of answer or 12 (b) motion |
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Tools of Discovery |
Request for admissions Inspections of doc. things, places Interrogatories Physical/ Mental examinations Expert Witnesses Depositions (non parties can include depo subpoena) |
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Types of Expert Witnesses |
Close to trial: must disclose everything in the expert's file if requested Consulting expert- hired to help develop case. If not designated as an expert, opinion protected by work product doctrine |
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Standard for discovery |
Reasonably likely to lead to the discovery of admissible evidence |
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CCP 2018.030 Non privileged |
Attorney client privilege- communications between attorney and client are privilege. Work product- absolute privilege from discovery for |
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Duty to attempt resolution |
"meet and confer" before filing any discovery motion. Failure to do so can result in sanctions |
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CCP 2032.01 Physical or mental exams in PI cases |
Defendant gets one physical exam of plaintiff w/in 75 miles of plaintiff. Limited to conditions in controversy |
Sacramona case |
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CCP 2032. 320 Physical or mental exams in non PI cases |
Need court approval for physical or mental exam "only for good cause" |
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Federal: Types of Dismissals |
Voluntary dismissals: P may file a notice of dismissal before D answer or MSJ. P can refile if S?L has not run. No ct. permission to refile Involuntary: ct. dismiss with prejudice. P can't refile |
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State: Types of Dismissals |
Voluntary dismissals: P may file a notice of dismissal before D answer or MSJ. P can refile if S?L has not run. No ct. permission to refile Involuntary: ct. dismiss with prejudice. P can't refile |
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Res Judicata |
If case dismissed with prejudice, MSJ granted, or jury verdict; it is over. |
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Motion for summary judgment |
no triable issue of material fact. Moving party is entitled to judgment as a matter of law |
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Motion for summary adjudication |
ruling on some but not all, c/a in complaint |
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Erie doctrine |
In diversity cases, federal court apply the substantive state law that would be used by the state where the federal court sits |
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Relation back doctrine |
permits a plaintiff to amend a complaint to allege different or additionaltheories of recovery after expiration of the applicablestatute of limitations, typically after discovery has disclosednew information. |
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