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54 Cards in this Set

  • Front
  • Back
What kind of jurisdiction does the Superior Court of California have?
General subject matter jurisdiction--it can hear just about any case.

The only cases it can't hear are those that invoke exclusive federal jurisdiction.
What are the three classifications of cases within the Superior Court?
(1) Limited Civil Cases (limited pleadings and discovery) -- amount in controversy doesn't exceed $25K

(2) Unlimited Civil Cases -- amount in controversy exceeds $25K. A claimant can recover any amount at all.

(3) Small Claims Cases (simple procedures) -- Individual: $7,500 or less. Entity: $5,000 or less
In California, venue is proper in the county where...
(1) ANY defendant resides when the case is filed; and
(2) in contract cases, venue is OK where the contract was entered or to be performed; and
(3) in personal injury/death cases, venue is OK in county where injury occurred.
How does transfer of venue work in California courts?
If original venue is improper, D can move to transfer to a proper county.

If original venue is proper, a court, may transfer on motion if:
(1) reason to believe impartial trial cannot be had; or
(2) convenience of witnesses and justice promoted; or
(3) no judge is qualified to act
*Parties must agree on venue; otherwise court will decide.
What are requirements for service of process for California courts?
(1) Non-party 18+ must serve
(2) MUST attempt personal service, which is good anywhere within the state.
(3) Substituted service: can only use to serve an individual if personal service fails after reasonable diligence.
-- Must be made ad D's usual abode or mailing address;
-- Must be left with competent; member of the household who is at least 18;
-- That person must be informed of the contents; and
-- Process must also be mailed to D by first-class mail, postage-paid.
How do you serve process to a corporation in a California state case?
Must deliver process to agent, officer, or general manage. May be left with someone apparently in charge during regular office hours.
When is waiver of service by mail effective in CA courts?
Service is deemed complete when D executes the acknowledgment form, and D must respond within 20 days after that.
When is service of publication used?
Only as a last resort and only on affidavit from plaintiff's attorney that D cannot be served after reasonable diligence.
Under CA law, how do you serve an individual that is not within the state?
Can be made out of state in any manner allowed by CA law, or by mail (postage prepaid, return receipt). Service deemed complete 10th day after mailing.
Does CA have the same immunity as Federal law for out of state visitors in-state for the purpose of being a witness/party to another civil case?
NO. CA has abolished this immunity.
How does CA differ in its pleading requirements?
It requires fact pleading, rather than notice pleading, which requires more detail.
Does CA have a rule similar to Rule 11 (regarding frivolous litigation)?
YES, it mirrors Rule 11 with one exception:
-- CA: 21-day safe harbor applies not only in motions brought by a party, but ALSO when the court raises the issue SUA SPONTE.

-- CA law also allows court to order a party/attorney to pay expenses and attorney's fees incurred b/c of bad faith or frivolous tactics.
If damages are sought by a plaintiff, must plaintiff state the amount in her complaint?
Generally yes, but MUST NOT state damages in:
(1) personal injury/wrongful death
(2) whenever plaintiff claims punitive damages.

In these cases, D can request "statement of damages" (SOD), and P must provide w/in 15 days. Also must serve SOD on D before taking default judgment.
What are verified pleadings?
They are pleadings signed under penalty of perjury, and can be treated as AFFIDAVITS. Rarely required (example: derivative suits).
What is the CA rule regarding fictitious defendants?
Only if P genuinely unaware of a D's identity, she may name D as "Doe" defendant.
-- Must allege that she is unaware of D's true identity and must state cause of action against "Doe".
-- Once identity is discovered, P can amend complaint and get "relation back" to original complaint.
Under CA law, when must Defendant respond to complaint?
Within 30 days after service of process is complete.
What is a General Demurrer?
It is a pleading used by D to assert two defenses:
(1) P failed to state facts sufficient to constitute a cause of action (similar to 12(b)(6); and
(2) Lack of subject matter jurisdiction

NOTE: if court sustains on first ground, P will get another opportunity to allege.

ALSO NOTE: these defenses can also be raised in D's answer or in a motion for "judgment on pleadings."
What is a Special Demurrer?
A pleading used by Defendant (or sometimes P) to raise a large number defenses. Must be raised in answer or by demurrer; otherwise waived. Special Demurrer Defenses:
(1) complaint is uncertain, ambiguous
(2) complaint is unclear about which theories of liability
(3) existence of another case between same parties/same action
(4) defect or misjoinder of parties
(5) failure to plead whether a contract is oral or written
(6) failure to file a certificate (required to sue for professional negligence).
(7) lack of legal capacity

NOT AVAILABLE IN LIMITED CIVIL CASES
What is a motion to quash service of summons?
Motion asserting 3 defenses by D:
(1) lack of PJ
(2) improper process;
(3) improper service of process.

NOTE: must be made before or with filing of demurrer or motion to strike. Can't file with answer (as it is considered a general appearance).

*can only appeal to Court of Appeal within 10 days of denial.
What is the anti-SLAPP motion to strike in California?
When P sues D for an act D took in furtherance of her free speech right or right to petition the government on a public issue, D can make an anti-SLAPP motion to strike.
-- D must make showing that P's cause of action arises from protected activity.
-- motion not available to a P whose case is truly in the public interest or on behalf of general public.
-- If D succeeds, burden shifts to P to show the probability of winning on merits.
-- A D who wins anti-SLAPP motion can file SLAPPback suit against P.
Upon D's motion to strike P's complaint, the court may strike:
all or part of the complaint which is "irrelevant, false, or improper matter."
What is a General Denial and when is it permitted?
It is an answer (in the form of a short document) in which D denies all allegations of P's complaint.
-- Permitted if D can do so without violating frivolous litigation rules.
What can P do if D's answer is insufficient for failing to state facts sufficient to support affirmative defenses?
P can demur to the answer.
If a D's demurrer or motion to strike is denied, D must:
file an answer within 10 days of that denial.
In California, what are the terms equivalent to counterclaims, impleaders, and cross-complaints called in federal court?
They are ALL called cross-complaints.
In CA, may a cross-complaint be included in an answer?
NO, must be filed as a separate document.

Cross-complaint against P:
-file before or with answer.
-compulsory if same T/O as P's claim

Cross complaint against co-party:
-same TO as underlying dispute
-NEVER compulsory

Cross-complaint against TPD:
-D may join TPD
-NEVER compulsory
-TPD may raise defenses that D could have raised against P
-**Right to join is TPD is BROADER in state court. Can join TPD for ANY CLAIM that TPD is liable for on underlying case, if same TO as claim against D or involves an interest in the controversy.
In CA, what are the rules regarding the amendment of pleadings and "relation back?"
-- P can amend complaint before D files an answer or demurrer.
-- After demurrer, but before trial, a party can amend once.
-- Any party can seek leave to amend at anytime.
-- Parties can amend pleadings to conform to evidence.
-- Relation back available to add new claims after SoL has run if new claim relates to the same general facts as originally alleged.
-- Relation back available to change D if the right D knew about error.
-Relation back within 3 years substituting fictitious D is OK if: (1) original complaint filed before SoL ran and contained charging allegations against "Does"; (2) P was genuinely ignorant of D's identity; and (3) P pleaded that ignorance in original complaint
What are the California requirements for a class action?
Must show:

(1) an ascertainable class; and

(2) a well-defined community of interest. Considerations include (i) if common questions predominate; (ii) class rep is adequate; and (iii) the class will result in substantial benefit to parties and court.

(3) Individual notice NOT required; publication notice OK.

(4) Class members who don't opt out are bound (court may decide whether to permit opt-out)

(5) Court does NOT have to appoint class counsel

(6) Settlement/dismissal must be approved by court

(7) Members claims are aggregated (different from federal)
Are discovery disclosures required in California state courts?
NO.
What are the CA rules regarding depositions?
SAME as federal:
-- Can depose party or non-party
-- Should subpoena non-party to ensure attendance
-- Can only depose natural person once unless court otherwise orders

DIFFERENT from federal:
-- no presumptive time limit on deposition
-- no presumptive limit on number of depositions to be taken in case
-- P must get court order to notice D's deposition within 20 days after D was served
What are the CA rules regarding interrogatories?
Basics are same as federal (only sent to parties).

Differences:
-- no limit on the number of form interrogatories (approved by Judicial Counsel) that can be served
-- specific interrogatories may not contain sub-parts, and are limited to 35 in unlimited case (may seek more).
-- responding party can seek protective order
What are the CA rules regarding requests to produce?
(1) No statutory limit on number in unlimited case

(2) P must obtain court order to propound an inspection demand on D within 10 days after D was served.

(3) No express permission to get information from a non-party, but **to get around this, serve non-party with subpoena duces tecum (bring the stuff with you).
Are there any differences in CA from the federal rules with regard to compulsory medical exam for discovery?
It's the same, except that if it is a physical exam, lawyer has right to attend. If mental exam, lawyer can attend with court order.
What are the rules in CA with respect to requests for admission?
Same as federal, but limited to 35 (no limit as to requests for genuineness of documents).
What are the discovery limits in limited cases in California?
-- One deposition per party
-- each party limited to a combined total of 35 interogs, inspection demands, and requests for admission
What is the difference from federal rules in California's rule regarding supplemental discovery?
NO standing duty to supplement discovery requests. Rather requesting party can propound "supplemental interrogatories" or "supplemental demands for inspection."

Limited to TWO before trial date is set and ONE after date is set.
What is the standard for the scope of discovery in California?
Anything relevant to the subject matter involved in the pending action (broader than federal "claim or defense").

RELEVANT means anything "reasonably calculated to lead to the discovery of admissible evidence."

Privileged matter not discoverable. Objecting party must object with particularity (privilege claimed, author, date of preparation, all recipients) -- called privilege log.

Discovery of private matters are limited in CA. Court must balance need for discovery against privacy interest.
In CA, "work product" for discovery purposes is limited to:
Work product that is generated by the attorney or his agents. A writing which reflects attorney's impressions, conclusions, opinions, or legal research is NEVER discoverable.

Anything else is discoverable ONLY if court determines it necessary.

This is different from federal, which includes product generated by party or his representatives.
In CA state court, if the heart of the case is injunction:
no jury for incidental damages.
In the CA voir dire process, each party is entitled to:
six peremptory challenges and unlimited challenges for cause.
What is the requirement for a verdict in CA?
3/4 majority.
What is the main difference between CA and federal in regards to Motion for Judgment Notwithstanding the Verdict (JNOV, in federal)?
In, CA, party making motion NEED NOT have made motion for directed verdict at trial (required in federal).
Is remittitur and additur permitted in CA state court?
YES, both are permitted.

If damage award "shocks the conscience" by being too high, court may offer P new trial or remittitur. If too low, court may offer D option of new trial or additur.

Additur is NOT permitted in federal court.
What's a motion to set aside judgment?
A motion made by D to set aside judgment due to mistake, surprise, excusable neglect. Pops up in a default judgment scenario, where D goofed and didn't respond to complaint.

Motion MUST include D's answer and "affidavit of fault".
What is an extraordinary writ of mandate in California state court?
It is a writ of mandate (not an appeal, but a separate proceeding) to compel a lower court to do something the law requires. A party may seek an extraordinary writ of mandate if subject to an otherwise non-appealable order.

Party seeking writ must demonstrate:
(1) will suffer irreparable harm if writ not issued;
(2) the normal route of appeal is inadequate; and
(3) beneficial interest in outcome of the writ proceeding

Such a writ is EXTRAORDINARY, not routine. Rarely granted for discovery purposes. It will usually involve conflicting trial court interpretations or a novel and important question.
Under CA law, what is an interlocutory review and which orders are subject to such review?
It is a NON-FINAL review by the Court of Appeal. These orders are appealable:
(1) granting motion to quash service
(2) granting dismissal or stay for forum non conveniens
(3) granting new trial
(4) denying motion for JNOV
(5) denying (not granting) certification of class
(6) granting, dissolving, or refusing to grant or dissolve an injunction
(7) directing party or attorney to pay monetary sanctions of over $5,000.
What is the collateral order rule? (California)
Court of Appeal may hear appeal on:
(1) an issue collateral to the merits of the case;
(2) that trial court has decided finally;
(3) if it directs payment of money or performance of an act.
What are the requirements for issue preclusion (res judicata)?

Distinguish between federal and CA law. **THIS IS AN IMPORTANT DISTINCTION
(1) Same P against same D
(2) Previous case ended in valid judgment on merits
(3) Previous case and present case assert the same cause of action (claim).

Under Federal Law: claim means transaction or occurrence.

CA law "PRIMARY RIGHTS THEORY": cause of action for each right invaded, even if same T/O
What is merger and bar?
Refers to claim preclusion:
(1) claimant can't bring claim that he previously won (merger)
(2) or that he previously lost (bar)
What is collateral estoppel (issue preclusion)?
It precludes relitigation of a particular ISSUE litigated and determined previously.

Requirements:
(1) Previous case ended in valid, final judgment on the merits; and
(2) Same issue was actually litigated and determined; and
(3) Issue was essential to the judgment.
(4) Only applies against one who was a party to the previous litigation

***(5) Who can assert collateral estoppel?
-- Traditional view: only a party to the previous case.
-- Federal and CA view: non-party can assert if it is FAIR. Factors include: (i) full and fair opp to litigate; (ii) could foresee multiple suits; (iii) asserting party couldn't have joined easily; (iv) no inconsistent judgments on the record.
Is there a meet and confer requirement in California courts, similar to the federal 26(f) requirement regarding discovery plan?
No, however a case management conference is required within 180 days of filing complaint.
What are the requirements for personal jurisdiction in California?
California's long-arm statute gives its courts power over any person or property over which the state can constitutionally exercise jurisdiction. Thus, we must look to the constitutional analysis to determine PJ in California.
What are the three types of personal jurisdiction?
In personum:
What is the two-prong constitutional test to determine whether jurisdiction can assert jurisdiction over a defendant?
The International Shoe test:

My Parents Frequently Forgot to Read Children's Stories

(1) Contact
Is there a relevant tie between D and the forum state: (i) purposeful availment; (ii) foreseeable that D could get sued here?

(2) Fairness (fair play and substantial justice): If there is relevant contact, would the exercise of jurisdiction be fair or reasonable given the circumstances?
(i) relatedness between contact and claim;
(ii) D's convenience;
(iii) state's interest in providing forum for its citizens