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241 Cards in this Set

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1.

Diversity Jxd
- Must be between "citizens of different states" (or citizen of state and foreign aliens and
- Amount exceeds 75k.

- Must be complete diversity between Ps and D's.
2.

Determination of Citizenship
- Natural person who is a US citizen.
- Based on domicile
- Domicile det. by establishing presence in sate and intent to make it their permanent home.

- Tested at time of filing. .
3.

Citizenship for Corporation
- Where state incorporate AND
- where state has principal place of business.
x- where corp. decisions are made. (nerve center test).
4.

Unincorporated Association (partnership) Citizenship
Citizenship of all members.
-
5.

Decedents, minors and others
Only citizen of their own, not representative.
6.

Amount in Controversy
-Claim Must EXCEED 75k
- by 1 cent.
- P must claim as much as poss in good faith unless legally certain outcome otherwise.
x- actual recovery irrelevant unless winning P who pays D's costs. (usually opposite)
7.

Amount in Controversy
- Aggregation
- Adding two or more claims to meet amount requirement.
- Aggregate (add) claims of one P against one D. (any and all claims).
-
-
8,

AIC
Joint Claims
- "joint"
- Use total value of claim
9.

AIC
Equitable Relief
- When D sues for injunction. Granted When Claim amount is from-
- P's viewpoint OR
- D viewpoint.
10

Exclusions to Otherwise Fed. Jxd.
Divorce alimony or child custody.
10.

Federal Question
Complaint must show a right or itnerest founded substantially in on a federal law.
- claim "arises under" federal law.
11.

Well Pleaded Complaint
P claims itself must arise under fed. law.
- Ignore other material of P
- "Is P enforce a federal right?" (If yes FQ, If no not.)
12.

Supplemental JXD.
- For ctate Cases After Admission to Federal Court come in, not admissible under div or FQ.
Can come in through supplemental jxd.
13.

Supplumental Jxd
-Test
- Must share a common nucleus of operative fact.
- Satisfied if arises from same transaction or occurence
14.

Supp Jxd.
- Diversity
- FQ
- DIVERSITY, P can Not use Supp. Jxd. to overcome lack of diversity in diversity case, but can satisfy amount in controversy.

- Supp jxd can be used to overcome lack of diveristy in a FQ case.
15.

Supplemental JXD
- Non-FQ non-diversity claim can be hear in fed court if it meets the "test" Unless it is:
1. Asserted by a P
2. In Diversity case (not FQ) and 3. would violate complete diversity.
16.

Supplemental JXD
- Discretionary Factors
Court may refuse to hear if:
- FQ dismissed early in the proceedings or
- complex state law claim or
- state law predominates claims.
17.

Removal
- Sued D may be able to remove to case to fed court (state trial to fed. trial only)
- Must be withing 30 days of SERVICE of first doc that MAKES the cases removable.
- If Improper fed court can remand.
18.

Removal
- Test
D Can remove case if it would
invoke diversity or FQ.
- ALL Ds must agree.
19.

Removal
- Diversity case rules
- No D can be a citizen of the forum(court).
x- if dismissed against citizen case becomes removable
- Not removal more than 1 year after case was filed in state court.
20.

Removal
- Forums Removable To
- Fed district court embracing the state court the case was filed in.
-
21.

Removal
- Procedural
Notice in fed court stating grounds for removal, under Rule 11,
22.

Erie Doctrine
- In Diversity cases, fed. court must apply state substantive law.
- All fed. procedural rule on point applied, based on Supremacy clause.
23

Erie Doctrine
- If no fed. law on point,
substantive if
- elements of claim or defense,
- statute of limitation or
- conflict of law rules
24.

Venue
- Local Action
- After subject matter jxd, determines which fed. court is proper.
- Actions about ownership, posesssion or injury(inc trespassis) MUST be filed in district land lies.
25

Venue
- Residence
- Domicile.
- Corps. reside in all districts where subject to Personal JXD when case filed.
26.

Venue
- Transfer
- Fed dist court may transfer a case to any other district where case could have been filed.
x- venue is otherwise proper and has personal jxd over matter.
- Has discretion to txr to another court based on convenience to parties and witness and "interests of justice.
27

Venue
- Transfer
- Factors in Discretion
Public- burden fo jury, keeping local controversy in local court.
- Private Factors- Convenience( where are Ws and Evi)
- If venue in original district improper, court can transfer in interests of justice or dismiss.
28

Forum Non Conveniens
- Where another court is far more convenient, but transfer impossible (foreign court), court may dismiss or stay the case if public and private factors statified. (must be strong showing)
- FNC not granted if P is resident of the present forum.
29.

Service of Process.
- Requirement
- D must receive notice.
O must must deliver:
- summons (formal court notice of suit and time for response) and
- copy of the compliant
- Must be served within 120 days .
30

Service
- Who can
- Any non-party that is 18 years old.
31

Service
- Manners
- Personal Service
- Substituted Service at Usual abode.
- Serve Person of suitable age and who resides there.
- Service on agent of D and service withing scope of agency.
- State law of state where fed court sits or where serve is affected
31

Service
- Geographic Limitation (Longarm Statute)
Fed court can serve process outside of state in which it sits ONLY if the state law allows.
32.

Service
- Later Documents
Service delivering or mailing to partys attorney.
33.

Pleading
- Rule 11 Certifications
- Atty or party must sign all papers, except for discovery.
- Effective every time "position" presented to court.
34.

Pleading
- Rule 11
- Sanction
May be levied discretional agaisnt attorney firm or party, a
- Designed to deter bad conduct
- Can be non-monetary sanction.
- Paid to court.
- Party must have chance to be heard beforehand.
35.

Complaint
- Effect
- Requirements
- Commences action
Req:
- statemetn of grounds for subject matter jxd.
- Must plead facts supporting a PLAUSIBLE claim..
- short and plain statement of the claim showing entitlement to relief
- Demand for relief sought
36.

Matter Requiring More Particularity In Pleading
Must be pleaded in great detail
- Fraud
- Mistake
-- Special Damages- (damages that do NOT normally flow from complaint)
37.

Default- Rule 12
-
Dy must respond by motion or answer withing 21 days of service of process
38.

Rule 12 Motions
- Form-
- Motion for more definite statement- statement so vague D can frame a response
statement,
- Motion to strike- immaterial matter
39

12(b) Motion Defenses
- Can be reaised via motion or answer
- Lack of subject matter
- Lack or PXD (waivable)
- Improper Venue (waivable)
- Insufficiency of Process(acutal papers) (waivable
- Insufficiceny of service(waivable)
- Failure to State a Claim
- Failure to join an indispensable party.
40

12(b) Motion Defenses
- Waivable
- Must be put in motion or answer (whichever first) otherwise defense waived.
- If not waivable, can be raised any time during tiral
41

Answer
Timing
- Must be Served with 21 days of service, but if D makes 12 motion and it is denied, answer must be filed in 14 days of denial.
42

Answer
- Responses
- Admit
- Deny
- "Lack of suff. info to admit or deny"- Acts as denial, but N/A to public knowledge or in D's control
43

Failure to Deny
- Can constitute an admission on any matter, except damages.
44

Affirmative Defenses
- Pleading Requirements
Must be plead otherwise risks waiver.

SOF
SOL
Self-defense etc.
45

Counterclaims
- Compulsory
Must be stated in D's answer
- Compulsory- Arises from same transaction or occurrence as P's claim.
x- MUST be filed in answer of pending case, otherwise waived. (cant be asserted in another action, but NA if never had to answer)
- Must satisfy subject matter jxd. or supplemental jxd.
46.

Crossclaim
- Claim against Co-Party.
- Must arise from same transaction or occurrence .
- No req that if be filed in the pending case.
- Must be subject matter jxd.
47

Amended Pleadings
- Can Occur Where
- P has absolute right to amend once withing 21 days after D serves first Rule 12 response.
- D can absolute right to amend once withing 21 days of serving his answer.
- If no right, can can grant if "justice so requires" (Delay, Prejudice, Futility of amendment.)
48

Variance
- Where evi at trial doesn't match what was pleaded (k to assault)
- If D does not object (varainace with the pleadings) and introd into evidence, P can move to amend complaint to conform to evidence to show assault claim.
49

Relation back of Amended Pleadings
- Amended pleadings "relate back" if they concern the same conduct, transaction or occurrence of the original pleading
- Amended pleading will be treated as filed when original complaint filed so at to avoid SOL.
50.

Relation Back to Change D
Relates back if:
1. It concerns same s conduct transaction or occurnce,
2. New party knew of action within 120 of filing and
3. Knew that, but-for the mistake, she would have been named.
- Applies ONLY when P sued wrong D first but right D KNEW about it
51.

Discovery
- Required Disclosures
- Initial Disclosure- Person or docs liekly to have discoverable info
- Expert Disclosure- those who may be used at trial and related info
- Pre-trial disclosure- Detailed info of trial evidence, inc docs and id of testifying W's
52.

Discovery Tools
- Partys v. Non Partys
Both:
Depositions-
53

Discovery Tools
- Depositions-
- Sworn oral testimony to questions of counsel. recorded.
- Nonparty should be subpoenaed, but is not compelled to attened.
- Subpoena duces tecum- Req deponent to brimg materials. Notice of depo is suff for party no subpoena required.
54.

Discovery Tools

Interrogatories
Questions propounded in writing to another PARTY.
55.
Discovery Tools
-Request to Produce
Request to another party (or nonparty with subpoena) requesting that she make d available for review certain documents.
56

Discovery Tools
-Physical or Mental Examination
Only available via court order.
- Only discovery tool as such
57

Discovery Tools
- Request for Admission
Requests by one party to another part to admit the truth of any discoverable matter.
58.

Certification of Discovery Requests and Responses
Counsel signature certifies that
- It is warranted
- not interposed for an improper purpose and not undly burdensome.
59.

Duty to Supplement
- Must supplement response if party leans that its response in discovery was incomplete or incorrect.
60.

Scope of Discovery
- Anything relevant to a claim or defense.
"relevant"- Reasonably calculated to lead to discovery of admissible evidence.
61

Discovery Privileges
- Privilege is a bar to discovery.
62.

Work-Product (Trial Prep materials)
- Material prepared in anticipation of litigation.
- Discoverable if movant show:
x- substantial need and
x- its not otherwise available
- Mental impressions, opinions, conclusions and theories are absolutely privileged.
- Inc. product generated by the party or any rep of the party.
63.

Work-Product (Trial Prep materials)
- Claiming of Privilege
= Must claim protection expressly and describe materials witheld.
- If inadvertent production of protected material and upon notification, receiving party must return until court decides if necc.
64.

Work-Product (Trial Prep materials)
- Experts
- Req to produce info about experts under discovery rules, .
- Party can depose any experts whose opinions may be presented at trial.
- Consulting expert who was retained by will nto testify, no discovery absent "exception need" (no means availabel elsewhere_
65

Discovery
- Enforcement
- Protective Order
Protective Order- Request is overburdensom, involves trade secrets, not reasonably accesible, or seeks work product.
Partial Viol
66

Discovery
- Enforcement
- Partial Violation
Partial Where recieving party answer some question but not other, light sanction.
x- Can get order compelling party to answer question and costs for attorney fee of bring the motion.
x- If party violates court order to compelling to answer, then Rambo sanctions
- Party seeking sanction must certify that tried in good faith to get info without court invovement.
67

Discovery
- Enforcement
- Total Violation
- Rambo Sanction
Establishment order that est facts - as true
Strike pleadings of disobedient party(in re issue of discovery.)
- Disallow evi of disobedient party (in re issue of discovery)
- Dismiss P's case(if bad faith shown)
- Enter default judgment against D (if bad faith shown)
68.

Joining of Parties
- Proper Parties That May be Joined
YEs if claims
- Claims arise from same T&O and
- Raise at least one common question

Applies to both Ps and Ds
Must fulfill subject matter jurisdiction following joining.
69.

Joining of Parties
- Necessary Parties
- Will be necessary if a non-party:
- is neccesary allow court to afford complete relief among existing parties (multiple suits).
- non-party's interest will be harmed without joining.
- Non-party claims an interest that subjects a party to multiple obligations.

Joinder must be feasible (personal jxd and joining wont destroy diversity)
70

Impleader
- D wants to bring in new D due to indemnity or contribution to defending party on the underlying claim.
- Right to implead within 14 days after answer, otherwise must get court permission.

Must file third-party complaint and serve process on TPD.
71

Impleader
- P v TPD and TPD v. P
- P assert claim agaisnt TPD (and vice-versa) claim is based on same T&O as underlying case.
- Must fulfill subject jxd. (or supp jxd.)
72

Class Action
Where Rep sues on behalf of class members. Must show:
1. Numerosity- Too many class members for practical joinder.
2. Commonality- Some questions of law or fact in common to class.
3. Typicality- Rep claims or defenses must be typical of those of the class/
4. Rep Adequate- Rep must fairly and adequately rep the class.
72.2

Class Action
- Types of Cases
1. Prejudice- Class treatment necc to avoid harm to class members or party opposing class (ie many claims to fund where individual claims may deplete leaving some without remedy)
2. Equitable Relief sought because class treated alike by other party (employment discrimination)
3. Damages- Common questions PREDOMINATE over individual questions and class action is THE superior method for handling the dispute (mass tort).(most likely)
73.

Class Action
- Notification to Class
Under Damages Class ACtion
- Court must notify class members, inc individual nitce to all reasonably identifiable members.
Must inc. notice they can opt out, bound if they don't, and right to separate counsel.
Class rep must pay for notice

Prejudice and Equitable relief do not req notice.
74.

Class Action
- Those Bound By Judgment
All class members except those who opted damages action.
No right to opt out of damages class action.
75.

Class Action
- Settle or Dismissal
Req Court approval.
- Court will give notice to class members to receive feedback in re settlement or dismall.
- Damage class members may get second chance to opt out.
75.

Class Action
- Subject Matter Jxd
- Can arise under FQ or
- Diversity. Considers citizenship of rep only, and reps claim must 75k (doesnt inc other members)
76.

Pretrial Adjudication
- Voluntary Dismissal
- May be allowed on court order, when P pays D's cost.
- P may have right to do so by filing written notice of dismissal without prejudice before D serves answer or MSJ.
x- If later dismisses second case, it is with prejudice.(even if originally brought in state court)
77.

12(b)(6) Failure To State a Claim
- Test only sufficiency of P's allegation.
- Will P win if facts alleged are true, would P win? (do they state claim law would recognize)
- Examines only face of complaint, not evi.

- If made after D's answer- "motion for judgment on the pleadings"
78.

Summary Judgment
- No genuine dispute on material issue of fact and
- Party is entitled to judgment as a matter of law.

- Can look at first hand knowledge evi, (gen in light most favorable to nonmoving party)
x- wont examine info in unverified pleadings.(but if D fails to deny soemhting may be considered admission and evi)
79.

Pretrial Conference
- Can be held to process case and forster settlement
- Final pretrial conf det issues to be tried and evi to be offered and SUPERSEDES the pleadings.
80

Right To Jury Trial- 7th
- Jury det facts, judge instructs on law
- Jury right to civil suits at law.
- If both law and equity, jury decides facts underlying damages claim.
- If both, 1st determine legal facts then dismiss jury.
- Need to have 6-12 jurors (no alternate jurors)
81

Right To Jury Trial
- Demand
- Must be demand in writing withing 14 days of serives of last pleading to raise jury triable issue
82.

Voir Dire
- No limit of strike "for cause" (bias prjudice, related to party
- Peremeptory strikes- 3 per side
x- Must be used in race and gender neutral way.
83.

Motion for Judgment as a Matter of Law
(aka directed verdict)
-Brought after other side has been heard at trial (D can usually move at close of P's evi and at end of trial)
- Granted if reasonable people could not disagree on the result, viewing the evi in light most favorable to the nonmoving party.
84.

- Renewed JMOL
JMOL if comes up after trial. (after jury determination)
- must have moved for JMOL at trial .
- Must move withing 28 days of entry of judgment
- Granted when jury reached a conclusion that reasonable people would not have reached
85.

Motion for a New Trial
- Where Judgment entered but errors req a new trial.
- Must motion wihting 28 days of judgment.
86.

Appellate Review
- US App can review what dist court did.
- Gen. only right to appeal from final judgment.
x- Ultimate decision by trial court on merits of entire case. (Does judge have anything left to do on merits of the case.
- Notice of appeal must be filed in TRIAL court withing 30 days of final judgment.
87.

Interlocutory Review
- Class Action
- App has discretion to review order granting or denying cert of class action.
- Must be sought withing 14 days of order.
- Does not stay proceedings at trial court unless trial judge or app so order.
24.1

Venue
- Transitory Claims
- Transitory if Diversity or FQ)
- Venue appropriate where:
x-Where all D's reside in same dist.
x- a substantial part of the claim arose.
x- If all D's reside in same STATE venue appropriate at any district of that state.
31.1

Service
- Manners
- Waiver by Mail
- P send D complaint and waiver form to D with prepaid envelope and D executes and mails waiver withing 30 days, waiver filed upon mailing.
x- If D fails to do so without good cause, can be liable for cost of service.
34.1

Pleading
- Rule 11
- Sanction
- Safeharbor
- If sanctions motioned for by opposing party, party in violation has 21 days to fix problem and avoid sanctions, between service and filing of motion in court.
- If court raises sua sponte, no 21 day safeharbor.
45.1

Counterclaims
-Permissive
- Does NOT arise from same transaction occurrence, can be filed via answer or in a separate case.
- Must satisfy subject matter jxd. or supplemental jxd.
66.1

Discovery
- Enforcement
- Total Violation
- Party fails to attend depo or respond otherwise, heavy sanction.
x- Rambo sanction plus atty fees.

Party seeking sanction must certify that tried in good faith to get info without court invovement.
69.1

Joining of Parties
- Necessary Parties
- If non-party cant be joined.
Court must proceed without party or dismiss (considers alternate forum, likelihood of harm to non-party, can court shape relief to avoid the potential harm
72.1

Class Action
- Certification Timing & Effect
- Court must certify as class as an early practicable time,
- Must define class claims issues or defenses and appoint class counsel to fairly and adequately rep interests of the class.
85.1

Motion for a New Trial
- Grounds
- Extensive. Whenever judge think should start over.
x- prejudicial error makes judgment unfair (wrong jury int, evidentiary ruling)
x- Ne evi that couldnt have be obtained w/o due diligence
x- prejudicial misconduct of any actor in case
x- judgment against weight of evi
x- Excessive or inadequate damages.
33.1

Pleading
- Rule 11 Certifications
- Effect
By signing person certifying that to best of her knowledge and belief After Reasonable Inquiry:
1. Paper not for improper purpose
2. Legal contentions are warranted by law (or nonfrivolous argument for law change.
3 . Factual contentions and denials of contentions have evidentiary support or are likely after further investigations
200.

Personal JXD
- Can P sue D in that state?
- Must:
x- satisfy state long-arm statute and
x- the Const. (due process).

- Same in fed and state.
201

In personam JXD
P wants to impose personal obligation on D becuase of some contact between D and forum state

Satisfied in Cal when:
- Constitutionally satisfied.
202

In personam JXDa
- Constl Limit (Shoe Test)
- Does D have minimum contacts with the forum so that exercise of jxd does not offend traditional notions of fair play and substantial justice?

Satisfied when D:
- is domiciled in forum
- consents or
- is present in forum when served with process (if not tricked).
203

In personam JXDa
- Constl Limit (Shoe Test)
- Contact
- Must be relevant tie between D and
- contact must result from "purposeful availament"(D's voluntary act, cant be accident or happenstance)
-
203.1

In personam JXD
- Constl Limit (Shoe Test)
- purposeful availment
- Trying to make money
- use roads in state
- causing an effect in forum
203.1

In personam JXD
- Constl Limit (Shoe Test)
- Foreseeability
- Must be forseeable D could be sued in the forum.
205

In personam JXD
- Constl Limit (Shoe Test)
- Fairness
- Specific JXd
- If there is a relative contact, Does P's claim arise from D's contact with the forum?
- If so court may uphold jxd even if D does not have a great deal of contact with Cal. (Specific Personal JXD.
- If not satisfied must have general personal jxd.
206

In personam JXD
- Constl Limit (Shoe Test)
- General Personal Jxd
- If D has have continuous and systematic ties with the forum, D can be sued for a claim that arose anywhere
- Otherwise must have specific jxd.
207

In personam JXD
- Constl Limit (Shoe Test)
- General Personal Jxd
- Continuous and Systematic
- Domicile
- Inc.
- Major facilities
- Many others
208

In personam JXD
- Constl. Limit (Shoe Test)
- Fairness Factor
- Convenience
- Forum ok unless it puts D at a SEVERE disadvantage in litigation so as to deny DP.(wealth of parties not important).
- Balanced against State interest in providing forum to its citizen.
208

In personam JXD
- Constl Limit (Shoe Test)
- Fairness Factors
- Relatedness
- Convenience
209

My Parents Frequently Forgot To Read Children Stories
Minimum Contact:
- Purposeful available
- Foreseeability

(Fair Play and Substantial Justice)
- Relatedness of contact and claim
- Convenience
- State interest
210

In personam JXD
- The Internet
- Inreractive website can be purposeful availament (depends on if it actively conducts business or is passive information provider)
212.

Subject Matter Jxd
- Superior courts of Cal. have gen subject matter jxd over almost any civil case?
- Limited amount of FQ that go straight to fed (bankruptcy, patent, fed. securities)
212.

- Limited Civil Case
AIC doesn't exceed 25k.
- No claimaint can recieve more than 25 k
- Court gen cant:
x- grant permanent inj., or
x- declaratory judgment, or
x- title to land, or
x- file special demurrer.
212.

- Unlimited Civil Case
- Gen equitable relief or
- Damages exceeds 25k
- Claimant can recover any amount.
213

Small Claims ase
If P individual, 7,500 or less
P an entity, 5k or less.
214

Classification of Limited/Unlimied
P can choose to Inc:
- Amount of demand
- Recovery sought,
Value of Prop
Amoutn of lien
- Not inc. atty fee, interest or cost.
- Limited must be noted in caption of complaint.
214.1

Reclassification of Limited/Unlimited
- Automatic
Court will not lose subject matter jxd.
- Reclassified if
- If P amends complains in way that changes classification.( automatic).
215

Reclassification of Limited/Unlimited
- On Motion
- On motion, party or court can if notice is given to all parties and a hearing is held.
x- Court will not decide on merits
x- Court can look beyond pleadings at arbitration awards and settlement conference statements. (must consider judicial arbitration awards)
215

Reclassification of Limited/Unlimited
- On Motion
- Standard for Unimited to Limited
Court may reclassify from unlimited to limited when:
- Court is convinced that the verdict will result in 25k or less or
- More than 25k is virtually unobtainable.
215

Reclassification of Limited/Unlimited
- On Motion
- Standard for Limited to Unlimited
When court is convinced that there is poss the verdict will be 25 k.
215

Reclassification of Limited/Unlimited
- Effect of Multiple Claims
- Entire case must be unlimited or limited.
- Aggregate all of P's claims if one P and one D.
- If two Ps and 1 D and any one Ps 'claim exceeds 25k, any P bring limited civil case.
- IF D files cross-complaint that exceeds 25k, who case reclassifed as unlimited.
- If P brings unlimted claim, and D files cross complaint that is less than 25k, still Unlimited
220.

Venue
Must be appropriate county.-
221.

Venue
- Local Action
- Land related, (recover, ownership, injury to)
- Venue is county where land lies.
222.

Venue
- Transitory Action
- Gen. venue ok where any D resides when case if filed.
- Where a K entered or to be performed.
- In personal iunjury, county where injury occurred
223.

Venue
- Transitory Action
- For corps
- PPB (sec. of state or where member or partner resides)
- Where it entered into or is to perform
- Where breach occured or liability arises.
224.

Venue
- Transitory Action
- When all D's alien to state
Venue is ok anywhere in CA
225.

Venue
- Transfer Of Venue
- If current venue is improper can motion to transfer, so long as as it is with or before the answer demurrer or motion to strike.
- If current venue is proper may still transfer if:
x- reason to believe impartial trial not poss .
x- Convenience of Ws and ends of justice would be promoted or
x- no judge is wualified to act.
- If parties cant agree on a venue, Court choose.
226.

Inconvenient Forum (Forum Non Conveniens)
- Where court dismisses or stays because the far more appropriate court is in a different judicial system (another state or country)
- Granted when "in interest of substantial justice, action should be heard in forum outside Calfiornia"
- Examines same factors as federal court
- Can grant motion on condition that D waive personal jxd or SOL objection in the other forum.
227.

Service of Process
- D must be served with process (summons and copy of complaint)
-Can be served by any non party that is at least age 18 (same as fed.)
228.

Service of Process
- Methods
- Personally (same as fed.)
- Substituted Service-
229

Service of Process
- Corp
Satisifed if to:
- Agent for SOP or
- An officer
- Gen manger
- Personally or left with somebody apparently in charge at office during usual business hours.
230.

Service by Mail
- Summon complaint, and two copies of acknowledge/waiver form with self addressed stamped envelope back to P

- D has 20 days to return the form and
- Service deemed complete when D executes (not
231

Service by Publication
- P atty msut submit affidavit that D CANNOT be served after demonstrationg reasonable diligience
232

Service out of State
Can be made by California law ot by mail.
233.

Immunity From Service
- Fed- If present in state only as witness or party cant be served.

- Cal- Abolished this immunity.
234.

Subsequent Docs
Can be dleviered or mailed.
If mailed add 5 days to time required for response (fed. is 3)
235.

Pleadings
- Fact Pleading
- Req more dea
236.

Frivolous Litigation
Same as fed Rule 11.
- Cal. parties also get 21 day safeharbor if court brings motion.
- Court can req, party or atty or both to pay expenses and atty fees incurred by another party because of bad faith or frivolous tactics in litigation.
- Must be motion and opportunity to be heard.
237.

Frivolous Litigation
- "Frivolous"
Frivoulous - compeltey without metir or for sole purpose of harassing an oppoinsing party (motion cna be filed immediately no safeharborb)
238

Complaint
Req:
- Statement of facts constitution Cause of Action stated in clear and precise language.
- Must plead ULTIMATE facts and
- Demand for judgment for relief to which the pleader claims to be entitled.
- No subject matter jxd showing req.
- Limited civil case must state so.
- If P seeks damages, gen. must state amount unless
239

Complaint
- Statement of Damages
- Where P forbidden from stating damages in claim D can request SOD and P must provide withing 15 days.
- If P fails , D can move for court order requiring such.
- SOD must be issued before default judgment will be granted.
240.

Complaint
- Fact Pleading v.
Fact- Must allege the ultimate facts on each element of each cause of action.
241

Complaint
- Heightened Pleading Requirement
- Where fraud alleged, facts must be pleaded with particulairty.
Also inc-
- Civil conspiract
- Tortious breach of k
m Unfair business practice
242.

Complaint
- Fictitious D (Doe Practice
If P generally unaware of identity of D, can name D as Doe and must allege that she is unaware of D's true identity and must state the cause of action against Doe (Charging allegation)
x- Poss SOL issues.
243

Verified Pleading
Signed under oath by party, (rare)
- shareholder in derivities suit or suit against govt entity)
x- treated as afadvits
244.

Complaint
D must respond in appropriate wat withing 30 days after process
245

Responses of D
- General Demurrera
- Considered a pleading, but acts like a motion.
- Can assert some defenses.
x- Failure to state facts suff. to constitute a cause of action (most important GD defense.)
x- Can also apply for lack of subject matter jxd (gen NA)

Can also raise defenses in answer and in motion for judgment on pleadings and D has pleaded and time for demurrer has expired.
246.

Response of D
- Failure to state facts suff. to constitute a cause of action
- Like 12b6
- Court can take factual alleged as true and limits assessment to face of complaint.
- If granted, P can usually try again.
- Will apply fact to elements of claim
248

Special Demurrer
-Defenses
- Complain uncertain ambiguous or intelligent (like fed. more definite statement)
- Lack of legal capacity,
- Defect or misjoinderof parties
- Failure to file a certificate of merit- (Req to sue architects, engineers, and surveyors for malpractice)
- Existence of another case between same parties on same cause of action
247.

Special Demurrer
- Court review is same as general demurrer (complaint and judicial notice)
- Considered a pleading
- All Can be raised in answer except cert of merit.
- Waive if not raised in demurrer or answer.
- Not available in limited civil cases.
249

Motion v Demurrer
- Motions oare granted or denied.
- Demurrer sustained or overruled.
251

Motion to Quash Service of Summons
- Defenses
- Lack of PXD.
- Improper Process
- Improper service of process
-
250

Motion to Quash Service of Summons
- Must make via special appearnce
- MUST be made before or with demurrer, answer, or mation to strike, otherwise waived.
- Answer with afifrmative defense of lack of PXD forbidden (already waived). Must make file MTQ to assert.
251

Motion to Quash Service of Summons
- If denied
- Dmust plead within 15 days
- Appellate review only with writ of mandate withing 10 days of order denying motion.
252

Motion to Dismiss or State for Inconvenient Forum
- Waived if made after demurrer or motion to strike.
- But can be raised after an answer
253

Motion to Strike
- Same as fed-
=- Party can file to strike all or part of pleading that is irrelevant, false or improper matter.
254

Motion to Strike
- Anti-Slapp Motion to Strike
- Leg. concerned about strategic lawsuits agaisnt public participants.
- Where P sues D to chill valid exercise of free speech right or petition to govt
- Anti-SLAPP NA if P enforcing a public right.
- P's COA must arise from protected activity.
x- If it does, burden shifts to P to show probability of winning on the meroits.
- If D wins anti-SLAPP motion can sue original P for malicious prosecution.
255.

Answer
Same as Fed
256

Answer
- Gen. Denial
Short doc in which D simply denies each and every allegation of P's complaint. Permitted if D cont do so consited with rules in re frivolous lit.
257

Answer
- Affirmative Defenses
- Must inc. ultimate facts suff. to constitute and affirmative def.
- I pfi
258

Answer
- Verififucation
Req if P filed verified complaint
259

Default

Answer
- Verififucation
D must file anser or demurrer or one of motions withing 30 days.
- Motion to stirke doesnt extend time to demurr
260

Cross Complaint
Claims by D
1. Against P
2 Against co-D
3. Against an impleaded 3rd part

(not coutnerclaims, cross complaint and impleaded
261

Cross Complaint
- D v P
- Cross complaint, not part of answer, must be filed before or at same time as an answer.
- If arises from same T&O, it is compulsory and must be asserted
- If not same T&O, can be filed separately.
262

Cross Complaint
- D v other D
- like fed crossclaim, may be diled anytime before court set trial date.
- Must arise from same T&O as underlying dispute
- Never compulsory.
263

Cross Complaint
- D v. Impleaded TPD
- Can be brought before court has set trial date.
- Never compulsory
- Gen Indemnity claim.
264

Cross Complaint
- Response time
- Service Req
- 30 days.
- If cross complaint asserted agaisnt peron who has not yet appeared in the case, it must be serve with summong
265.

Amended Pleadings
- Right as a matter of course.
- Leave
- P has right as matter of cours,e before D files answer or demurrer or
- after demurrer but before hearing on the issue raised by demurrer, can amned once.
- Otherwise can seek leave at any time (grnated unless undue delay prejudice
- Can amend to conform to Evi
266.

Amended Pleadings
- Relation Back
- Available to add new claims after SOL has run, if new claim relates to same gen fact as originally pleaded.
- To change D after SOL, it there was "misnomer," P sued wrong D but right D knew (same as fed.
267.

Amended Pleadings
- Relation Back
- Fictitious D's
- RB allowed if:
x- Original complaint was filed before SOL ran and it contained charging allegation against fictiicous D and
x- P was genuinely ignorant of identiy of DOe D and
x- P pleaded that ignorance in the original complaint.
- If P subs w/in 3 years of filing it relates back.
268.

Discovery
- No required disclosures.
269.

Discovery Tools
P must getcourt order to take discovery within 10 days after service (w/in 20 days for depos.)
270;

Deposition
- Gen same as fed. can deopp all, must subpeona non-party.
- No-presumptive time limit on length or number of depps in Cal.
271

Interrogatories
- Same as fed, can only be sent to other parties.
- No limit on form interrogatories.
- Specific interrogatories, cant contain sub-parts, and 35 allowed in unlimited civil case.
- Can serve more with declaration supporting the need for more.
272.

Req to Produce (Inspection Demand)
- Same as Fed
- Both req form desired for electronically stored info.

- Fed- Can be used against non-party if subpoena.
- Cal- Statute doesnt say so, but possible if after taking depo of non-party, and serve with subpoena duces tecum (req party to bring docsto depo)
273

Req to Produce (Inspection Demand)
- Subpoena duces tecum
- Business REcords
Can be subpoened absent depo.
274.

Discover
- Physcial Demadn
- Must have court order )(same as fed) unless PI case, D can demand one physical exam
x- phys exam, D atty can attend
x- mental exam, D atty can attend with court order
275.

Request for Admission
- Amount Allowed
- Same as interrogatories(35 unless dec. supporting of need)
- No limit on request to admit genuineness of docs.
276.

Discovery in Limited Civil Case
- Party can take 1 depo.
- Combined total of 35 for interrogatories, inspection demands, and requests for admission. for each party.
- Addtl discovery allowed only under court order.
277

Supplemental Discovery
- Unlimited Cases
- No standing duty to supplement given reponses as long as info was accurate and complete when given.
- Requesting party can propound supplemental interrogatory to elicit later acuired info bearing on answers previously made. or
- Supplemntal demand for inspection demanding inspection of later acquired or discovered doc.
- Can do twice before trial date set and once after.
278

Scope of Discovery
- Anything relevant to subject matter involved in the pending action. (slightly broader than fed.)
279

Scope of Discovery
- Relevant
Same as fed.
" Material reasonably calculated to lead to discovery of admissible evi.
280

Scope of Discovery
- Privileges
- Barr to discover
Where claiming, must obect with particularity.
281

Scope of Discovery
- Right of Privacy
- Court will balance need for info against need for privacy.
282.

Work Product
- Fed- any product generated by party or any rep of party.
- Cal- Pro se product that would be work product of their atty.
- Party can only get discovery of work product if court det that denial would unfairly prejudice party seeking or result in injustice (same as fed)
- But writing that reflect atty impressions conclusion opion or legal research never discoverable.
283

Discovery
- Experts
- Any party can request simultaneous exchange of expert W info.
Inc:
- list of experts & Nature and substance of test,
- and expert qualifications and reports by the epxert.
- Then can depo expert.
- If party doesnt exchange info, court may exclude expert test.
- Info of consulting experts not available.
284.

Enforcement of Discovery Rules.
- Parties must gen meet and confer to work out discovery problems.
285

Enforcement of Discovery Rules.
- Misuses
- Not playing by rules making unjustified objection
- Can sanction party or atty
- Sactioned must be given notice and opp to be haeard.
286.

Enforcement of Discovery Rules.
- Misuses
Court starts at top and goes lower as misuses worsens.
Motioning party must inc type of sanction sought.
287

Protections Order
Same as fed.
- To protect against unwarranted annoyance, embarrassment, oppression, burden or expense.
288

Electronically Stored Info
Can object to ESI not reasonably accessible due to undue burden or expense.
289.

Joinder
Same as fed.
290

Necessarily and Indispensable Party
Same and fed.
291

Class Action
- Must show
x- An ascertainable class and
x- a well defined community of interest.
Cal allows when question is"
- "one of common or general interst of many persons and
- it is impractiable to bring them all before the court one or more may sue for benefit of all."
292

Class Action
- "well defined community of interest"
Court considers whether:
- common questions dominate
- rep is adequate and
- Class will result in substantial bene. to parties and court.
292

Class Action
- Types
No types in state court.
293.

Class Action
- Notice
- Can be given by publication
- Individual notice not req.
- Court decides who bears cost of notice. (rep in fed.)
294.

Class Action
- Those Bound
All those who dont opt out under court allowance
294.

Class Action
- Settlment
Same as fed, must be approved by court.
295

Class Action
- Amount in controversy
To det whether limited or unlimited:
- Aggregate all claims
296

Voluntary Dismissal
- Before/After Trial
P can move to dismiss anytime before trial starts, court will decided whether to grant and with or without prejudice.
- After, can be granted onyl with prejudice unless parties stipulate otherwise or court finds good cause to dismiss without prejudice.
297.

Involuntary Dismissal
- All courts can dismiss for failute to prosecute, failure to abide by court rule, various reasons raised by demurrer motion to quash
- Court has discretion to dism0ss if case has not been brought to trial or served within two years of filing
298

Mandatory Dismissal
Case MUST be dismissed if:
- Not brought to trial withing 5 years after filing or
- Process not served within 3 years of filing.
299.

Failure to Plead Facts Constitutiing a Cause of Actions
Usually a general demurrer.
300

MSJ
Same as fed court.
- Moving
301

Recovery Allowed
- Not limited to amount in complaint.
- Can recover whatever evi supports.
- No claimant can recover more than 25k in limited case.
302

Jury Trial
- Legal v. Equitable
Cal const gen same jury right along legal/equitable line as 7th. Except:
- Jury will det issues of fact related to law, not equity.
- Equity First Rule- unlike fed, facts will be tried on equity COA first (in fed legal jury issues first).(
303.

Jury Trial
- Where Damages Incidental to Equitable Relief
- Fed- Jury right to factual det in re damages
- Cal- No jury right at all because law claim is incidental.(cen
302

Jury Trial
- Demant
Party must annouucen demand for jury at time the case is set for trial or withing 4 days after notice of setting of trial.
- Failure to do so consitutes waiver
303

Number of jurors
-12 unles parties agree in open court for lesser number
- If juror excused, alternate replaces.
- If no alternate, trial continues unless there's an objection
304

Voir Dire
- 6 peremptory challenges and unlimited challenges for cause.
- Peremptory challeges cant b used on basis of "race, color, religion, sex, national origin, sexual orientation, or similar grounds" (broader than fed.)
306

Verdict
- Only 3/4 of jurors req. (fed. unanimous)
307

Motion for Directed Verdict
- Gen. Same as JMOL
- "Reasonable people couldn't disagree on result"
- Cal Parties can move at close of all evi
- If made at opening statement or close of P evi (aka motion for non suit-
308.

Motion for Judgment Notwithstanding the Verdict (JNOV)
-Same standard as directed verdict
- Must file nitce of intention to move before entry of judgment or
xx- 15 days of mailing or service of nitce of entry or judgment or
xx- 180 days after entry of judgment
(need not make motion for directed verdict at trial, as in fed.)
309

Motion for New Trial
- Timing same as JNOV
- Bases-
x- Anything that makes retial necc as to avoid "miscarriage of justice)
x- excessive or inadequate damages(if figure shock the conscience)
xx- Court may suggest remittitur or additur.
310

Remittitur or Additur.
Remittitur- P can take lesser amount court suggests or go through trial again. (ok in state and fed)
Additur- D can give more or go through new trial (NA in fed(unconstl).)
311.

Appellate Review
- Unlimited
- Limited
- In unlimited case with final judgment, can be appealled to Cal app. district superior court.
- Notice must be filed in trial court, 60 days after mailign service or notice of entry of judgment

- Limited Case- Appealled to appelate dept of superior court
312.

Appellate Review
- Req
- Must be final judgment on merits.
- If only final as to one of several parties, can be appealed in Cal (not fed.)
313.

Interlocutory Revew
- Statutory
- Collateral Order Rule
- Extraordinary Writ- If order
313.

Interlocutory Review
- Extraordinary Writ
If order not otherwise appealable, the aggrieved can seek a writ of mandate or prohibition.
- Not technically an appeal.

-EW is only way to appeal denial of motion to quash service of summons.
314.

Interlocutory Review
- Extraordinary Writ
- Showing Requirement
- Seeking party must demo that
x- she will suffer irreperable harm if writ not issued
x- normal route of appeal from judgment is inadequate and
x- she has a beneficial interest in outcome of the writ proceeding.
315

Preculsion
- Where there has been earlier case det
1. Is there judgment already entered
2. that precludes litigation of any matters in another case?
316

Preculsion
- Choice of law where 2 is in different court system (fed to state)
- Case 1 jxd law determines issue preclusion.
317

Preculsion
- Effect where case 1 is currently appealed
Fed- Still entittled to claim or issue preclusion effect
Cal- Not entitled
318

Claim and Issue Preclusion
- Timin
- As affirmative defense should be raised in her answer or MSJ.
319.

Claim Preclusion
- Can only sue on a COA once.(one bite at apple)
Req:
1. Must show Case 1 and 2 brought by same claimant against same D and
2. Case ended in a valid final judgment on the merits.
x- on merits unless based on jxd, venue, or indispensable parties. (inc default judgment)
3. Same Cause of ACtion(or claim
320.

Claim Preclusion
- "Same Cause of Action(or claim)"
Fed.- Claim means transaction or occurence.

Cal- COA means for each right invaded.(primary rights theory)(personal injury v. prop damages)

-Fed and Cal- Inc. all breaches up to time of filing suit
321.

Issue Preclusion
Precludes relit. of a particular issue. Req:
1. Case 1 ended in a valid, final judgment on the merits and
2. Same Issue Was actually litigated and det in Case 1
3. Issue essential to judgment in Case 1 (w/o judgment Case 1 would have been diff.)
322.

Issue Preclusion
- Nonmutual DEFENSIVE Issue PreclUsion
- Use by non-party to case 1 who is D in Case 2. -
- Ok if party had full chance to lit in Case 1
323.

Issue Preclusion
- Nonmutual OFFENSIVE Issue Preculsion
- Use by non-party to case 1 who is P in Case 2

Must satisy 1-4 and be "fair"
- Full and fair opp to lit in case 1
- Multiple suits foreseeable
- D couldn't not have been easily join ed in case 1
- There are not inconsistent judgments on the record.
Civ Pro Priorities
1. PXD
2. Fed. Subject matter JXD.
3. D's Responses
4. D's Claims
5. Pleading Theories
6. Class Action
7. Trial and Motion
8. Preclusion
228.1

Service of Process
- Methods
- Substituted Service-
x- Can only be used when personal service "cannot with reasonable diligence" be had.
x- Effective 10 days after mailing
xx- Must be made at usual abode(mailing address not po bocx)
xx- Must be left with competent member who is at least age 18
xx- Person must be informed of the contents and
xx- Must also be mailed furst class mail with prepaid postage.
238.1

Complaint
- Where P not allowed to state Damages.:
x- Personal injury or wrongful death or
x- P claims punitive damages.
xx- D will request a statement of Damages
286.1

Enforcement of Discovery Rules.
- Misuses
- RAMBO Sanctions
- Monetary (ins atty feed
- Estbalishment order
- Refusal to allow party to support its position with evi at trial
- Striking Pleadings
- Entering defulat judgment against D or dismiss P cause of Action
319.1

Claim Preclusion
- Judgment On Merits
x- on merits unless based on jxd, venue, or indispensable parties. (inc default judgment)
321.1

Issue Preclusion
- Cont.
4. Can be asserted only against person who was party in first case (req by DP)
5. Can be asserted by
x- Traditional Mutuality- by one who was party in Case 1
x- Some court allow non-mutual assertion (person not partyto Case 1) of issue preclusion
Personal JXD
- Traditional
x- D's domicile
x- Presence in State
x- Consent
Personal JXD Non Residents
-Long Arm
- Constitutionality
x- Modern DP
Modern DP
- Minimum Contacts &
x- Purposeful availament and
x- foreseeabilt
- Traditional notions of fair play and substantial justice
x- relatedness of claim and contact,
x- convenience
x- state interests
x- systematic and continuous contacts.