Civ Pro - Bm 10/31/13

Front 1

1. PERSONAL JURISDICTION –

Back 1

jurisdiction over the parties in the state (Same analysis in California State Court). Must satisfy a state statute and due process under the constitution.

Front 2

1. PERSONAL JURISDICTION –
a. Long Arm Statutes –

Back 2

Used to assert a state's jurisdiction over non-residents. (2 types)

i. General – permit a state court to exercise jurisdiction over any party as long as it is constitutionally permissible. (*CA – has a general statute)

ii. Enumerated – Narrow and provide that only certain acts will warrant jurisdiction.

Front 3

1. PERSONAL JURISDICTION –
b. In Personam –

Back 3

Jurisdiction over the person based on contacts with the forum state

Front 4

1. PERSONAL JURISDICTION –
b. In Personam –
i. Traditional Basis

Back 4

1. Consent,

2. Personally Served with process within the state, (if not tricked or forced into forum) or

3. Domiciled within the state.

Front 5

1. PERSONAL JURISDICTION –
b. In Personam –
ii. Minimum Contacts –

Back 5

“Whether the D has such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice”

Front 6

1. PERSONAL JURISDICTION –
b. In Personam –
ii. Minimum Contacts –
1. Contact –

Back 6

There must be a relevant tie between the D and the forum state.

a. Purposeful Availment – “Purposely availed himself to the benefits and protections of the forum state”
i. i.e. trying to make money, using roads, causing effect in state.
ii. Internet – Interactive websites are sufficient, passive websites are not.

b. Foreseeablity – “Reasonably likely to be hauled into court there”

Front 7

1. PERSONAL JURISDICTION –
b. In Personam –
ii. Minimum Contacts –
2. Fairness – “fair play and substantial justice”
a. Relatedness

Back 7

between the contact and plaintiff’s claim.

i. Specific – Does P’s claim arise from the D’s contact with the forum state?
1. IF so only minimal contacts are required.
2. D can only be sued there for a claim arising from those activities

ii. General – Does P’s claim NOT arise from D’s contact with the forum state?
1. IF so need continuous, substantial and systematic contacts with the forum. (i.e. doing business, domicile, incorporation)
2. D can be sued there for a claim that arose anywhere in the world

Front 8

1. PERSONAL JURISDICTION –
b. In Personam –
ii. Minimum Contacts –
2. Fairness – “fair play and substantial justice”
b. Convenience –

Back 8

The forum is OK unless it puts D at a severe disadvantage in the litigation. (very hard standard to meet)

Front 9

1. PERSONAL JURISDICTION –
b. In Personam –
ii. Minimum Contacts –
2. Fairness – “fair play and substantial justice”
c. States Interest –

Back 9

In providing the forum to its citizens

Front 10

1. PERSONAL JURISDICTION –
c. In Rem –

Back 10

A court possesses the power to determine the status of property within its state with respect to all possible interest holders in that property.

Front 11

1. PERSONAL JURISDICTION –
d. Quasi In Rem –

Back 11

Proceeding against a person based on the presence of that person's property within the state. Modernly must meet a minimum contacts analysis.
i. Note – Jurisdiction is limited to the amount of property.

Front 12

2. SUBJECT MATTER JURISDICTION (Power over the CASE)
a. Diversity of Citizenship
i. Citizens of different states

Back 12

(or a citizen of a state and a foreign state)
1. Complete Diversity – P can’t be from same state as any D
a. Natural Person – Based on State of Domicile
i. Domicile – (1) Physical presence (2) with subjective intent to remain. (Determined at the time of filing – citizenship before or after doesn’t matter) (Can only have 1 domicile)
b. Corporations – Up to 2 citizenships
i. State of incorporation AND
ii. Principle place of business (ONLY 1)
1. Nerve center test – where decisions are made (headquarters)
c. Resident Aliens – Based on aliens current state of domicile
d. Unincorporated Associations – (Partnership, LLC) use citizenship of EVERY member
e. Legal Representative of Decedents, Minors, Incompetents – Look to their citizenship, NOT the citizenship of the representative.

Front 13

2. SUBJECT MATTER JURISDICTION (Power over the CASE)
a. Diversity of Citizenship
ii. Amount in Controversy Must EXCEED $75,000

Back 13

1. Good Faith Test – Based on the good faith allegations of the P unless it appears to a legal certainty that she cannot recover more than $75,00 not including interest or cost of litigation (i.e. statutory ceiling on recovery)
a. What the P actually wins is irrelevant to determine jurisdiction.
b. However, if the P wins $75,000 or less the P may have to pay D’s litigation costs. (Not including attorneys fees)

2. Aggregation
a. 1 P v. 1D – Can aggregate ANY claims related or unrelated
b. Joint Tortfesors – Use the total value of the claim
c. Cannot aggregate multiple P’s claims against a single D

3. Injunctions – Jurisdictional amount is satisfied if either the gain to P or the cost to D exceeds $75,000.

Front 14

2. SUBJECT MATTER JURISDICTION (Power over the CASE)
a. Diversity of Citizenship
iii. EXCLUSIONS –

Back 14

Federal courts will NOT hear cases involving divorce, alimony, child custody, or probate.

Front 15

2. SUBJECT MATTER JURISDICTION (Power over the CASE)
b. Federal Question –

Back 15

The P must be enforcing a federal right that “arises under” a federal law OR P’s right to relief must require a resolution of a substantial question of federal law.

i. Well pleaded complaint rule – The federal question must appear on the face of P’s "well pleaded complaint.” (NOT in a defense or counter claim)

Front 16

2. SUBJECT MATTER JURISDICTION (Power over the CASE)
c. Supplemental Jurisdiction

Back 16

(Test every claim – Counterclaim, Crossclaim, etc...)

i. *Diversity and Fed Q get you into federal court. SJ may permit an additional claim that does not meet the original jurisdiction requirements. Only works if case already in fed ct.

ii. Common Nucleus Test – The claim must share a common nucleus of operative fact with the claim that invoked diversity or federal question.
1. CNOF is met by claims that arise out of the same transaction or occurrence.
2. Fed Q – The court may hear a related state claim by any party.
3. Diversity – Permits D’s to adjudicate related counterclaims, crossclaims, and impleaders.
a. Note – NO diversity is needed with parties D brings in

iii. Limitation – In diversity cases, the P may not use supplemental jurisdiction to overcome a lack of diversity. (But D can!)
1. Note: P can use supplemental jurisdiction to overcome lack of diversity for a claim in a federal question. P can also use supplemental jurisdiction to overcome a lack of amount in controve

Front 17

2. SUBJECT MATTER JURISDICTION (Power over the CASE)
d. REMOVAL – Allows DEFENDANTS to remove (“transfer”) a case from state to federal court.
i. 6 RULES

Back 17

1. Only D’s can remove (ALL D’s MUST agree)

2. In Diversity cases NO removal if D is a local D. (citizen of the forum)

3. A D who files a permissive counterclaim in
state court waives his right to remove. (NOT for compulsory claims)

4. Must have original subject matter jurisdiction for the Federal Court

5. Which court? Can only be removed to the federal district court embracing the state court which the case was originally filed

6. When? D has 30 days from service of the document that first made the case removable (Usually service of process)

7. In diversity cases NO removal more than 1 year after the case was filed in state court.

Front 18

2. SUBJECT MATTER JURISDICTION (Power over the CASE)
d. REMOVAL – Allows DEFENDANTS to remove (“transfer”) a case from state to federal court.
ii. Procedure

Back 18

1. D files Notice of removal in federal court stating:
a. Grounds for removal,
b. Signed by the parties under Rule 11,
c. Attach all documents served on D in state action,
d. Copy to ALL adverse parties.

2. Then file copy of notice in State Court.

Front 19

2. SUBJECT MATTER JURISDICTION (Power over the CASE)
d. REMOVAL – Allows DEFENDANTS to remove (“transfer”) a case from state to federal court.
iii. Remand –

Back 19

– If removal is improper federal court can remand to state court.
1. P must move to remand within 30 days of removal, but if there is no SMJ then the P can remand anytime.
2. When a removable claim is joined with one or more non-removable claims, the entire case may be removed. The federal court in its discretion, may remand all matters in which state law predominates.

Front 20

2. SUBJECT MATTER JURISDICTION (Power over the CASE)
e. ERIE DOCTRINE

Back 20

i. Issue: the question will be whether the court must apply state law on some issue

ii. General Rule – In a diversity case, federal court MUST apply state substantive law and Federal procedural law.

iii. Step 1 – Is there a Federal Law on point that directly conflicts with State Law? If so, APPLY the federal law, as long as it is valid.
1. Ex. FRCP, FRE, Statutes, Constitution.
2. Note – FRCP is valid if it is arguably procedural (Has never been held invalid)

iv. Step 2 – If there is NO federal law on point ask if it is one of the areas that has already been determined. Court has clearly determined four areas to be substantive: (1) Elements of a claim or defense, (2) statute of limitations (3) rules for tolling statute of limitations, (4) conflict or choice of law rules.

v. Step 3 – If NO federal law on point and it has not been clearly determined, apply the following 3 tests and come to a reasonable conclusion.
1. Outcome Determinative – Would applying or ignoring the state rule a

Front 21

2. SUBJECT MATTER JURISDICTION (Power over the CASE)
f. CA – Subject Matter Jurisdiction – Proper classification within the Superior Court
i. Standard –

Back 21

Superior Courts have general subject matter jurisdiction (i.e. they can hear ANY civil case) Must decide what classification of case is at bar.
1. Exception – Those cases with Exclusive Federal Jurisdiction
a. i.e. Bankruptcy, federal securities, antitrust, and patent infringement.

Front 22

2. SUBJECT MATTER JURISDICTION (Power over the CASE)
f. CA – Subject Matter Jurisdiction – Proper classification within the Superior Court
ii. Superior Court Classifications

Back 22

1. Limited Civil Cases – Civil cases where the amount in controversy does not exceed $25,000. ($25,000 exactly is ok)
a. Injunctions – cannot get a permanent injunction in a limited civil case
b. Limit Pleadings and Discovery – Statutes limit discovery and pleadings.
i. Limited to ONE deposition & a combined 35 interrogatories, inspection demands, and request for admissions.
ii. Can only get additional discovery with a court order
c. Damages are Caped – Cannot recover more than $25,000.

2. Unlimited Civil Cases – Civil cases, amount in controversy exceeds $25,000. Can recover ANY amount.

3. Small Claims – Small claims division of the Superior Court
a. Damages are Caped – $7,500 for individual, $5,000 for entity

Front 23

2. SUBJECT MATTER JURISDICTION (Power over the CASE)
f. CA – Subject Matter Jurisdiction – Proper classification within the Superior Court
iii. Classification and Reclassification
1. Classification –

Back 23

Plaintiff initially determines what type of case it is

a. May consider the amount of the demand, recovery sought, value of the property, or the amount of the lien that is in controversy.
i. Note – Attorney’s fees and cost should not be considered.

b. Multiple Claims – The whole case is either limited or unlimited. If one P asserts multiple claims against one D we aggregate the claims.

c. ANY claim – Unlimited case if ANY claim exceeds $25,000 (i.e. cross complaint or complaint)

d. Caption – P must write Limited Civil in the caption if P files a limited civil case. (Writes nothing for unlimited civil)

Front 24

2. SUBJECT MATTER JURISDICTION (Power over the CASE)
f. CA – Subject Matter Jurisdiction – Proper classification within the Superior Court
iii. Classification and Reclassification
2. Reclassification –

Back 24

May reclassify the case if it was misclassified or if subsequent events require change of classification. (SMJ not lost)

a. Automatic – If P amends her complaint in a way that changes the classification, the clerk will automatically reclassify the case.

b. On Motion – A party can move to reclassify, or the court can reclassify on its own motion if notice is given to the parties and a hearing is held.
i. Court may consider evidence beyond the complaint but may not consider the merits of the case in determining whether to reclassify. (May consider settlement conference but must consider a judicial arbitration award)

Front 25

3. VENUE –

Back 25

Determines which district court is proper (CA – determines which county is proper)

Front 26

3. VENUE –
a. Local Action –

Back 26

Actions regarding ownership, possession, or injury to LAND MUST be filed in the district where the land lies.

Front 27

3. VENUE –
b. If it is not a local action...

Back 27

...it is a Transitory Action – In a transitory action (diversity or FQ) P may law venue in any district:

i. Where ALL D’s reside
1. *Special Rule – in cases where all D’s reside in different districts of the same state, P can lay venue in the district in which any of them reside.

ii. Where a substantial part of claims (events or omissions) occurred
1. Resides
a. Humans – Reside where they are domiciled.
b. Corporations – Reside in EVERY district where they were subject to personal jurisdiction when the case was filed.
i. i.e. Ford resides in every U.S. district
c. Aliens – may be sued in any district (But you still need PJ)
d. Unincorporated Associations – Determined by looking to the residence of the association itself, not its individual members

Front 28

3. VENUE –
b. If it is not a local action...
iii. CA – Transitory

Back 28

1. County where any D resides when the case is filed,

2. Contract – County where the contract was entered or was to be performed,

3. Personal Injury / Wrongful Death – County where the injury occurred,

4. Non Resident of CA – ANY County in CA.

5. Corporation – where the PPB is, where it entered in or is to perform a K, or where the breach occurred or liabilities arise.

Front 29

3. VENUE –
c. Transfer of Venue –

Back 29

In the Interest of Justice the court MAY transfer to any district in which the case Could have been filed.

i. Could – A district w/ proper venue, personal jurisdiction and subject matter jurisdiction

ii. Interest of Justice – Court will balance both public and private interests.
1. Public – Burdened of jury service, protecting citizens, what law should apply
2. Private – Convenience or parties and witnesses, location of evidence

iii. The court to which case is transferred under this statute applies the choice of law rules of original court

iv. If venue in original district is improper, court may transfer in the interests of justice or dismiss.

Front 30

3. VENUE –
c. Transfer of Venue –
v. CA – Transfer of Venue –

Back 30

May transfer between Superior Courts in CA.

1. Original Venue is Improper – D can make a motion to transfer to a proper County with or before a responsive pleading is filed. (answer, demurrer, motion to strike)

2. Original Venue is Proper – A court may, on motion, transfer if:
a. There is reason to believe that an impartial trial cannot be had,
b. Convenience of witnesses and ends of justice would be promoted, AND
c. The judge is qualified to act.
i. Parties must agree on a County or court will choose.

Front 31

3. VENUE –
d. Forum Non Conveniens –

Back 31

If there is a far more appropriate court elsewhere (within a separate judicial system, foreign country), a court may dismiss or stay the action to let P sue D there.

i. Requires a very strong showing of private and public interests to dismiss or stay.

ii. Does not matter that P may recover less in the other court.

iii. Almost never granted if P is a resident of the present forum.

Front 32

3. VENUE –
d. Forum Non Conveniens –
iv. CA –

Back 32

Can be to another State’s court or a foreign country. Court may grant motion on the condition that D waive PJ or SOL objections in the other forum.

Front 33

4. SERVICE OF PROCESS
a. Notice –

Back 33

Notice must be given that is reasonably calculated under all circumstances to apprise interested parties of the pendency of an action.

Front 34

4. SERVICE OF PROCESS
b. Service–

Back 34

ANY non party over the age of 18, must deliver to D: (2 things)

i. Summons – formal court notice of suit and time for response

ii. Copy of the Complaint
1. Note – Process server does not have to be appointed by the court.

iii. Serve within 120 days of filing the case or case dismissed without prejudice (not dismissed if P shows good cause for delay in serving)

Front 35

4. SERVICE OF PROCESS
c. Process

Back 35

i. Personal Service – given to D personally ANYWHERE in the forum state
1. Ex. Ballpark, tennis court
2. CA – In CA you can only use substituted service if personal service fails.

ii. Substituted Service – Delivery to a:
1. Usual place of Abode, AND
2. Left with Competent Person who resides there
a. Competent – suitable age and discretion
b. CA – Must be made at the D’s usual abode or mailing address, left with a competent member of the household at least 18, must inform them of contents, and must also mail process to the D first class, postage prepaid. (Service is deemed effective 10 days after mailing)

iii. Service on D’s Agent – Process can be served on D’s agent if receiving service is within the scope of the agency. (i.e. corporations registered agent, managing agent or officer, or agent appointed by contract)

iv. State Law – Any methods permitted by state law where the federal court sits or where service is effected.

Front 36

4. SERVICE OF PROCESS
c. Process
v. Waiver by Mail –

Back 36

Written waiver is valid if mailed to D by first class mail, postage prepaid, and the D returns within 30 days. (CA – 20 days)
1. The D only waives service and nothing else. (i.e. not PJ or venue)
2. If the D does not return the waiver form and fails to show good cause to for failure to return the waiver form, the D must pay the cost of service.
3. CA – service is deemed complete when D executes the waiver

Front 37

4. SERVICE OF PROCESS
c. Process
vi. CA – Publication –

Back 37

Only on affidavit from plaintiff’s attorney that D cannot be served, after demonstrating reasonable diligence to serve D in another way.

Front 38

4. SERVICE OF PROCESS
d. Out of State –

Back 38

Process delivered out of state is valid if the forms state law allows such service (i.e. long-arm statute)

i. CA – Can be made out of state in any manner allowed by California law OR by mail, postage prepaid, return receipt requested. If by mail service is complete 10 days after mailing.

Front 39

4. SERVICE OF PROCESS
e. Immunity from Service –

Back 39

D is immune from instate personal service if he is instate to be a witness or party in another civil case. (CA – NO such immunity)

Front 40

4. SERVICE OF PROCESS
f. Other Documents –

Back 40

For subsequent papers, i.e. answer, motions, discovery, serve the documents by delivering or mailing the documents to the party’s attorney or pro se party. If mailed add 3 days for any required response. (CA – add 5 days)

Front 41

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
a. Rule 11 Sanctions –

Back 41

Requires attorney, or pro se party, to SIGN all pleadings, written motions and papers. (Except DISCOVERY documents)

Front 42

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
a. Rule 11 Sanctions –
i. Certifying –

Back 42

By signing the person is certifying that to the best of her knowledge or belief, after reasonable inquiry:

1. The document is not for an improper purpose

2. Legal contentions are warranted by law (or non frivolous arguments for law change), AND

3. Factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation.)

Front 43

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
a. Rule 11 Sanctions –
ii. Continuing Certification –

Back 43

The certification is effective every time the position in the document is presented to the court (i.e. at signing, filing, and later oral advocating)

Front 44

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
a. Rule 11 Sanctions –
iii. Discretion –

Back 44

Court has discretion to impose sanctions against the attorney, firm or party in order to DETER a repeat of bad conduct in the future.

Front 45

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
a. Rule 11 Sanctions –
iv. Inherent Power –

Back 45

Remember the court has inherit power to sanction

Front 46

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
a. Rule 11 Sanctions –
v. Monetary and Non-monetary –

Back 46

Sanctions can be non-monetary (striking a pleading, reprimanding the attorney)
1. Monetary sanctions are paid to the court, not the other party.

Front 47

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
a. Rule 11 Sanctions –
vi. Procedural Due Process –

Back 47

Before imposing sanctions, a court must give the party a chance to be heard.

Front 48

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
a. Rule 11 Sanctions –
vii. Sua Sponte –

Back 48

Court may raise rule 11 sanctions sua sponte (on its own)
1. Court does not have to provide the 21 day safe harbor provision (only required if a party is bringing the motion)

Front 49

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
a. Rule 11 Sanctions –
viii. Objective standard –

Back 49

An objective standard is used for judging conduct. A lawyer may not avoid sanctions with a “pure heart and an empty head.” However, an attorney may rely on the reasonable representations of the client.

Front 50

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
a. Rule 11 Sanctions –
ix. Safe Harbor Provisions –

Back 50

A Rule 11 motion for sanctions may not be filed until 21 days following service. Gives counsel time to withdraw or correct the allegations.

1. If another party violates Rule 11, remember that a party must give this 21 day to fix the problem before filing the motion. Cannot file immediately.

2. CA – Safe harbor also applies when the court raises the issue on its own

Front 51

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
a. Rule 11 Sanctions –
x. CA – Frivolous Litigation –

Back 51

– by statute, the court can order a party or his attorney or both to pay expenses and attorney’s fees incurred by another party because of bad faith or frivolous tactics in litigation.

1. Frivolous means completely without merit or for the sole purpose of harassing an opposing party.

2. There must be a motion by the party or the court and an opportunity to be heard.

Front 52

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
b. COMPLAINT –
i. Requirements (3)

Back 52

Principal pleading by the P. Filing commences an action.

i. Requirements (3)
1. Short and plain statement of the claim, showing entitlement to relief
2. Demand for Judgment
3. Statement of the grounds establishing subject matter jurisdiction
a. CA – Statement of SMJ is NOT required in CA.

Front 53

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
b. COMPLAINT –
ii. Short and plain statement of the claim, showing entitlement to relief
1. Notice Pleading –

Back 53

Need to plead sufficient facts to support a plausible claim. (Not just a possible claim)
a. CA – Fact Pleading – Must allege the ultimate facts on each element of each cause of action. (Higher standard then Federal)

Front 54

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
b. COMPLAINT –
ii. Short and plain statement of the claim, showing entitlement to relief
2. Special Matters –

Back 54

Fraud, mistake and special damages must be plead with particularity or specificity

a. CA – Heightened pleading for fraud, civil conspiracy, tortious breach of K, unfair business practices, and product liability claims among multiple D’s resulting from exposure to toxins.

b. Special damages are damages that are special to that P. (those that do not normally flow from an event)

c. Must plead the who, what, where, when, why

Front 55

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
b. COMPLAINT –
iii. CA – Damages –

Back 55

Generally must state the amount of damages except in cases for Personal Injury, Wrongful Death, or Punitive Damages.

1. In those cases the D may request a Statement of Damages, and the P must provide it within 15 days.

2. Note – P must serve a statement of damages on D in PI, wrongful death or punitive damages cases before taking a default judgment

Front 56

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
b. COMPLAINT –
iv. CA – Fictitious Defendants –

Back 56

If P is genuinely unaware of the identity of a D, she may name the D as a “Doe” defendant if the P:

1. Alleges that she is unaware of the D’s true identity, and

2. Must state a cause of action against the “Doe” defendant. (charging allegation)

3. No provision for Doe D’s in Federal Court

Front 57

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
b. COMPLAINT –
v. Verified Pleadings –

Back 57

– signed under penalty of perjury by the party. Can be treated as affidavits.

Front 58

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
c. Defendant’s RESPONSE –

Back 58

Rule 12 requires D to respond (1) by motion, or (2) by answer. To avoid default, D must do either within 21 days after being served with process.

Front 59

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
c. Defendant’s RESPONSE –
i. Rule 12 Motions –

Back 59

Note pleadings but rather a request for a court order.
1. Issues of Form
a. 12(c) – Motion for judgment on the pleadings
b. 12(e) – Motion for a more definite statement (i.e. pleading is so vague that D cant form a response)
c. 12(f) – Motion to strike (i.e. strike immaterial things in pleadings, e.g. demand for jury when no right exists)
i. Any party can bring a motion to strike

2. Rule 12(b) Defenses
a. 12(b)(1) – Lack of subject matter jurisdiction
b. 12(b)(2) – Lack of personal jurisdiction
c. 12(b)(3) – Improper venue
d. 12(b)(4) – Insufficiency of process (problem w/ summons or complaint)
e. 12(b)(5) – Insufficient service of process
f. 12(b)(6) – Failure to state a claim upon which relief can be granted. (i.e. Even if everything you allege in your complaint is true, no legal liability attaches to the D)
g. 12(b)(7) – Failure to join an indispensible party
h. May be raised by motion or in the answer.
i. Waivable – 12(b) 2,3,4,5 are waivable. They must be put in the FIRST rule 12 response (motion or answer) or else they are waived.
i. Lack of SMJ is never waived, and can be raised for the first time after trial or on appeal.

Front 60

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
c. Defendant’s RESPONSE –
ii. Answer – It is a pleading

Back 60

1. Timing – Serve within 21 days after service of process.
a. If D made a Rule 12 motion, and it is denied, she must serve her answer within 14 days after the court rules on the motion.
b. If D waived service, she has 60 days from the P’s mailing of waiver form.

2. Respond to Allegations
a. Admit, Deny, Deny on lack of information or belief – “without knowledge or information sufficient to form a belief as to the truth”
b. CanNOT deny on lack of information or belief if the information is public knowledge or is in D’s control.
c. NOTE – Failure to deny or improper denials can constitute an admission on any matter except damages

3. Raise Affirmative Defenses – D must include any defense he intends to raise. (Ex. SOL, SOF, res judicata, self defense, assumption of the risk)
a. Basically say “even if I did all the things P says, P still cannot win”
b. NOTE – Failure to plead affirmative defenses risks waiver of being able to raise the defense at trial if proper objection is made

4. Counterclaim – Claim against an opposing party
a. Compulsory – An answer MUST state any claim against an opposing party IF it arises out of the same transaction or occurrence as P’s claim.
i. i.e. Must be filed in the pending case or it is waived.
ii. Note – This is the only compulsory claim in federal court
iii. SMJ – Will have supplemental jurisdiction over compulsory counterclaims.
b. Permissive – An answer MAY state any claim against an opposing party if it does NOT arise out of the same transaction or occurrence as P’s claim.
i. i.e. may assert it in another action
ii. Remember – Need SMJ over EVERY claim

5. Crossclaim – Claim against a co-party
a. A pleading may file a cross claim against ANY party that arise out of the same transaction or occurrence as P’s claim.
b. Note – NEVER compulsory crossclaims
c. Remember – Need SMJ over EVERY claim

Front 61

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
c. Defendant’s RESPONSE –
iii. CA – Answer –

Back 61

Must respond in an appropriate way within 30 days. If a demurrer or motion fails, D must plead within 10 days after the ruling.

Front 62

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
c. Defendant’s RESPONSE –
iii. CA – Answer –
1. Answer –

Back 62

Same procedurally with federal law.

a. General Denial – May make a general denial of ALL allegations in P’s complaint if it is appropriate.

b. Affirmative Defenses – Must state facts sufficient to constitute an affirmative defense

c. Cannot include a cross complaint

d. If P filed a verified complaint, D must file a verified answer.

Front 63

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
c. Defendant’s RESPONSE –
iii. CA – Answer –
2. Cross Complaint –

Back 63

Must be filed in a separate document than the answer.

a. In CA, Crossclaims, Counterclaims and Impleaders are called Cross Complaints.

b. Contain the SAME rules as federal just with a different name.

Front 64

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
c. Defendant’s RESPONSE –
iii. CA – Answer –
3. General Demurrer –

Back 64

Can be used to assert 2 defenses

a. The D failed to state facts sufficient to constitute a cause of action

b. Lacks Subject Matter Jurisdiction (i.e. exclusive federal jurisdiction)
i. Note – Can be raised in the answer as affirmative defenses or can be asserted in a motion for judgment of the pleadings.
ii. Like the 12(b)(6) motion the court will take all allegations as true and limit its assessment to the complaint.
iii. The demurrer may be aimed at the entire compliant or individual causes of action.

Front 65

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
c. Defendant’s RESPONSE –
iii. CA – Answer –
4. Special Demurrer –

Back 65

Can be used to assert A LOT of defenses

a. The complaint is ambiguous and vague (unclear about what legal theories of liability are asserted against each D)

b. Lack of legal capacity

c. Defect or misjoinder of parties

d. Failure to plead whether the contract is oral or written

e. Existence of another case between the same parties on the same COA

f. Failure to file a certificate of merit (required to sue architects, engineers, or land surveyors for professional negligence)

i. Cannot be asserted as an affirmative defense

g. Note – Can be raised in the answer as affirmative defenses.

h. Waivable – If not raised in a demurrer or answer it is waived

i. Limited Civil Cases – Special demurrers are NOT available.

j. ALL Demurrers – sustained or overruled

Front 66

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
c. Defendant’s RESPONSE –
iii. CA – Answer –
5. Motion to Quash Service of Summons –

Back 66

Used to assert Lack of:

a. (1) Personal Jurisdiction, (2) Process, (3) Service of Process

b. Waivable – This motion must be made BEFORE or WITH a Demurrer, Answer, or Motion to Strike or else D waives these defenses.
i. i.e. Motion to Quash is a special appearance and the others are general appearances which waive these defenses.

c. If the court denies the Motion to Quash, the moving party can ONLY seek appellate review by Writ of Mandate from the Court of Appeal within 10 days of service of the written notice of entry of the order denying the motion. (i.e. cannot be appealed after a final judgment)

Front 67

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
c. Defendant’s RESPONSE –
iii. CA – Answer –
6. Motion to Dismiss for Inconvenient Forum

Back 67

(Forum non conveniens) – Waived if raised after a Demurrer or Motion to Strike, BUT may make after an Answer.

Front 68

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
c. Defendant’s RESPONSE –
iii. CA – Answer –
7. Motion to Strike –

Back 68

A party can file this to strike ALL or part of a pleading. The court may strike irrelevant, false, or improper matter.
a. A motion to strike does not extend the time in which to demur.

Front 69

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
c. Defendant’s RESPONSE –
iii. CA – Answer –
8. Anti SLAPP Motion to Strike –

Back 69

The legislature has been concerned about strategic lawsuits against public participation, (SLAPP) which are suits brought to chill the valid exercise of free speech and petition.
a. Use – 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.
i. Not available if the P’s case is truly in the public interest or on behalf of the general public.

b. Burden Shifts – If D shows that P’s COA arises from protected activity, the burden shifts to P to show a probability of wining on the merits.

c. SLAPPback Suit – If D wins, she may sue P for malicious prosecution.

Front 70

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
c. Defendant’s RESPONSE –
iv. Amending the Pleadings
1. Plaintiff may amend his pleadings:

Back 70

a. As a matter of Course – Once before a responsive pleading is filed.

b. With leave of court – After a responsive pleading is filed, a pleading may be amended with leave of court if “justice so requires.” Courts will consider prejudice, delay and futility of amendment.

c. Timing – If P amends, D must respond within 10 days or the amount of time remaining on his 21 days, whichever is longer.

Front 71

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
c. Defendant’s RESPONSE –
iv. Amending the Pleadings
2. Defendant has a right to amend once within 21 days of serving his answer.

Back 71

*

Front 72

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
c. Defendant’s RESPONSE –
iv. Amending the Pleadings
3. Variance –

Back 72

When the evidence at trial does NOT match what was pleaded, P may move to amend the pleadings after the introduction of the varying evidence or at the end of trial to reflect what was tried UNLESS D objects to the introduction of varying evidence.

a. If D property objects, the varying evidence is inadmissible because it is at “variance with the pleadings.”

Front 73

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
c. Defendant’s RESPONSE –
iv. Amending the Pleadings
4. Relation Back –

Back 73

Amendment after the SOL has run

a. Join a New Claim – Amended pleadings relate back if they concern the same conduct, transaction or occurrence as the original pleading.
i. “Relation Back” – means you treat the amended pleading as though it was filed when the original was filed, so it can avoid the SOL problem

b. Change a D – Amended pleadings will relate back if:
i. Concerns the same conduct, transaction or occurrence as the original pleading,
ii. The new D knew of the action within 120 days of its filing, and
iii. The new party knew or should have known that, but for a mistake, she would have been named originally.
1. “Mistake” means the naming of an incorrect party not an unknown party
iv. Applies when the P sued the wrong D first, but right D knew about it.

Front 74

5. PLEADINGS – Documents setting forth the claims or defenses. Federal
c. Defendant’s RESPONSE –
iv. Amending the Pleadings
4. Relation Back –
v. CA –

Back 74

Relation back for fictitious D’s is OK if:

1. Original complaint was filed before the SOL ran and contained charging allegations against the fictitious D’s

2. P was genuinely ignorant of the indemnity of the Doe D’s AND

3. P pleaded that ignorance in the original complaint.

4. Then it will relate back if P substitutes the true D for an unknown pleaded “Doe” within 3 years of filing.

Front 75

6. DISCOVERY
a. Scope
i. Standard

Back 75

Can discover anything relevant to any claim or defense

1. Relevant – “reasonably calculated to lead to the discovery of admissible evidence.” i.e. Discovery is broader than admissibility
a. CA – can discover anything “relevant to the subject matter involved in the pending action” (slightly broader than federal)

Front 76

6. DISCOVERY
a. Scope
ii. Privilege –

Back 76

Privileged evidence is NOT discoverable.

1. Must object to discovery request with particularity stating privilege

2. Work Product – Material prepared in anticipation of litigation by a party or party’s representative is generally NOT discoverable.
a. Exception – May be discoverable with (1) substantial need, AND (2) NOT otherwise available
b. Absolute Protection – (1) mental impressions, (2) opinions, (3) conclusions, (4) legal theories.
c. CA – Must be generated by an attorney or his agent ONLY.

Front 77

6. DISCOVERY
a. Scope
iii. CA – Right to Privacy –

Back 77

Courts will balance the need for discovery with the right to privacy interest invaded. (i.e. requiring a bullet surgically removed from D)

Front 78

6. DISCOVERY
b. Required Disclosures – this material must be produced even though no one asks for it.
i. Initial Disclosures –

Back 78

Must be made within 14 days of the mandatory meet and confer conference. (DDINE) (CA – NO initial disclosures)

1. Documents and electronically stored info used to support a claim,

2. Computation of Damages,

3. Insurance

4. Names of witnesses,

5. Expert witnesses who may be used at trial and their reports
a. Reports containing compensation, opinions, data used, qualifications
b. Consulting experts names and opinions are not discoverable absent exceptional need. (i.e. expert retained in anticipation of litigation but will not testify)
c. CA – Any party may request simultaneous exchange of expert witness info.
i. If not disclosed the court can exclude the expert from testifying.
ii. Cannot depose until exchange

Front 79

6. DISCOVERY
b. Required Disclosures – this material must be produced even though no one asks for it.
ii. Pretrial Disclosure –

Back 79

No later than 30 days before trial, must give detailed information about trial evidence, including documents an identity of witnesses to testify live and by deposition.

Front 80

6. DISCOVERY
c. Discovery Devices – May not be used until after the mandatory meet and confer conference unless court order or stipulation allows.
i. Depositions –

Back 80

A deposition is an oral proceeding permitting an attorney to examine ANY person under oath regarding the subject matter of the lawsuit.

1. Parties – Notice of the deposition properly served is sufficient to compel attendance.
a. If requested to produce documents a 30 day notice is required.

2. Nonparties – must be subpoenaed to be compelled to attend. A subpoena duces tecum will compel a nonparty witness to bring documents with her.
a. Non party cannot be compelled to travel more than 100 miles

3. Business – May require a business to designate a person most qualified for the deposition.

4. 10 Deposition Limit per “side” even if there are multiple Ds.
a. CA – Not presumptive limit on the number of depositions in an Unlimited Civil Case. (Limit of 1 in a Limited Civil Case)

5. One day of Seven hours limitation per witness
a. CA – Not presumptive limit on the time limit on depositions

6. Phone and Video depositions are permitted.

7. May not depose the same person twice without court approval

8. Use at Trial
a. The deposition of any party may be used for ANY purpose by ANY adverse party.
b. The deposition of a nonparty may ONLY be used if the witnesses is unavailable at trial

Front 81

6. DISCOVERY
c. Discovery Devices – May not be used until after the mandatory meet and confer conference unless court order or stipulation allows.
ii. Interrogatories –

Back 81

Written questions to a PARTY to be answered in writing under oath.

1. Timing – A party has 30 days to respond with answers or objections.

2. 25 Interrogatory limit – Absent a stipulation or court order.
a. CA – Limit 35 in Unlimited Civil Cases
b. CA – can serve more with a declaration supporting the need for more. Responding party can seek a protective order.

3. Duty to Investigate – Can say you don’t know the answer only after a reasonable investigation.

4. Option to Produce Records – When answer could be found in records but it would be equally burdensome to find it.

5. Use at Trial – May be used against the answering party but NOT by the answering party as this would be self serving.

6. CA – Form Interrogatories – Forms approved by Judicial Council. NO limit on the number of form interrogatories that can be served.

Front 82

6. DISCOVERY
c. Discovery Devices – May not be used until after the mandatory meet and confer conference unless court order or stipulation allows.
iii. Production of Documents or Things –

Back 82

Request to party (or non-party with subpoena duces tecum) that she make available for review and copying, various documents or things, including electronically stored information, or permit entry onto designated property for inspection.

1. Timing – Must respond within 30 days of service stating that the material will be produced or objection.
a. Note – The actual production occurs thereafter at the time and date specified by the attorney

2. Subpoena duces tecum – used to obtain documents from non-parties

Front 83

6. DISCOVERY
c. Discovery Devices – May not be used until after the mandatory meet and confer conference unless court order or stipulation allows.
iv. Physical or Mental Examination –

Back 83

Only available through court order on a showing that a PARTY’s health is (1) in actual controversy, and (2) Good cause (i.e. you can’t get it elsewhere)

1. Note – May also order an exam of a person in party’s control e.g. child

2. CA – D has a right to demand one physical examination of the P in a personal injury case.

3. CA – the lawyer has a right to attend the physical exam. If it is mental exam, the lawyer can attend only if there is a court order allowing it.

4. Exchange of Written Reports – The person examined is entitled, on request, to receive a copy of the report. If the examinee demands such a report, the party causing the examination is entitled, upon request, to like reports of ANY examination previously or thereafter made of the same condition.

Front 84

6. DISCOVERY
c. Discovery Devices – May not be used until after the mandatory meet and confer conference unless court order or stipulation allows.
v. Request for Admission –

Back 84

A request by one PARTY to another PARTY to admit the truth of any discoverable evidence.

1. Authenticate Documents – Often used to authenticate documents. If it is a copy of the document must be sent with the RFA.

2. Timing – Must respond within 30 days of service.

3. 35 limit – But there is NO limit on the number of requests to admit the genuineness of documents.

4. Failure to Deny or Respond – Automatic Admission from failure to deny or respond. (Can amend if failure is NOT in bad faith)

5. Response – may admit, deny, or indicate a lack of information only if you indicate you’ve made a reasonable inquiry.

Front 85

6. DISCOVERY
d. Rule 26 Certification –

Back 85

Parties sign substantive answers to discovery under oath certifying:
i. It is warranted,
ii. Not imposed for an improper purpose, AND
iii. Not unduly burdensome
1. Remember rule 11 does NOT apply to discovery

Front 86

6. DISCOVERY
e. Duty to Supplement –

Back 86

A party has the duty to amend an incomplete or incorrect response or amend an originally correct response that has become incorrect because of newly discovered information.

i. Must supplement initial disclosures, interrogatories, RFA’s, or requests for the production of documents or things.

Front 87

6. DISCOVERY
e. Duty to Supplement –
ii. CA –

Back 87

No duty to supplement discovery responses as long as the information given was accurate and complete when given.

1. Supplemental Interrogatories – The requesting party may propound Supplemental Interrogatories which elicit later acquired information bearing on answers previously made. Can also be used for production of documents.
a. May propound supplemental interrogatories:
i. Twice before a trial date is set
ii. Once after the trial date is set but before trial.

Front 88

6. DISCOVERY
f. Discovery SANCTIONS
i. Protective Order –

Back 88

Permits the court to limit, condition, or delay discovery upon a showing of "good cause" to protect a party from annoyance, embarrassment, oppression or undue burden or expense.

Front 89

6. DISCOVERY
f. Discovery SANCTIONS
ii. Partial Violation –

Back 89

Receiving party answers some discovery and unlawfully objects to others. (3 steps to sanctions)

1. Meet and Confer – Parties have a duty to meet and confer in order to try to resolve the dispute before seeking court orders.

2. Motion to Compel – May get an order compelling the party to answer the unanswered questions plus costs (including attorney’s fees) for bringing the motion.

3. Sanctions – If the party violates the order to compel, the party may bring a motion for sanctions, AND the party could be held in contempt for violating the order (except no contempt for violating an order for a medical exam)

Front 90

6. DISCOVERY
f. Discovery SANCTIONS
iii. Total Violation –

Back 90

Fails completely to respond to a discovery request or attend a deposition. May immediately bring a motion for sanctions. No need to file a motion to compel.

Front 91

6. DISCOVERY
f. Discovery SANCTIONS
iv. CA –

Back 91

iv. CA – prohibits “misuse” of discovery (i.e. not playing by the rules, making unjustified objections, abusive motions, failing to confer, refusal to respond, etc.) A court may sanction a party or attorney for misusing the discovery process. Must be given a notice and chance to be heard.
1. Must indicate the type of sanctions sought
2. A party may seek a protective order to protect against unwarranted annoyance, embarrassment, oppression, burden or expense. (i.e. ESI is too burdensome to get)

Front 92

6. DISCOVERY
f. Discovery SANCTIONS
v. Available Sanctions –

Back 92

A party seeking sanctions must certify to the court that he tried in good faith to get the information without court involvement.
1. Monetary Sanctions
2. Issue Establishment order (Establishes facts as true)
3. Issue Preclusion (as to issues regarding the discovery)
4. Striking the pleadings of disobedient party (as to issues regarding the discovery)
5. Dismissal, or Default (ONLY if bad faith shown)
6. Expenses and Fees (including attorney’s fees) for bringing the motion
a. CA – A party seeking sanctions for discovery abuse must indicate what type of sanction she seeks. (Court will start will monetary sanctions)

Front 93

7. COMPLEX CASES
a. Permissive Party Joinder

Back 93

– a party MAY join a person as a co P or D if:
i. The right to relief arises out of the same transaction or occurrence
ii. There is at least one question of law or fact common to all parties joined
1. Must have SMJ and PJ over every party.

Front 94

7. COMPLEX CASES
b. Necessary and Indispensible Parties
i. Necessary –

Back 94

A party is necessary “if feasible”:

1. Complete relief CANNOT be accorded in his absence OR,

2. A judgment may impair or impede his ability to protect that interest (harm to absentee) OR

3. May expose a party to multiple or inconsistent obligations.

4. Other Notes:
a. Joint Tortfeasors – are NOT necessary parties
b. If Feasible – There is PJ and SMJ over the necessary party.

Front 95

7. COMPLEX CASES
b. Necessary and Indispensible Parties
ii. Indispensible –

Back 95

If joinder of the necessary party is not feasible the court may either proceed without him or dismiss the case. In making this decision the court will balance:

1. Whether there is an alternative forum available

2. What is the actual likelihood of prejudice

3. Whether the court shape relief to avoid prejudice

4. Whether a judgment rendered in the person’s absence will be adequate.
a. Note – Party is indispensible if the court decides to dismiss the case.

Front 96

7. COMPLEX CASES
b. Necessary and Indispensible Parties
iii. Hint:

Back 96

Joinder rules start with “C” – counterclaim, crossclaim – claims between present parties. Claims that start with “I” involve joining someone new to the case.

Front 97

7. COMPLEX CASES
c. Impleader –

Back 97

D MAY join any person who is or may be liable to P's claim against D. (indemnity or contribution)

i. Jurisdiction – Must have PJ over impleaded parties but the court will have SMJ through supplemental.

ii. Timing – Right to implead w/in 10 days after serving answer or after that w/ ct. permission

iii. Note – Once properly joined any party may sue anyone as long as SMJ over each claim

iv. Note – There are no compulsory impleaders.

Front 98

7. COMPLEX CASES
d. Intervention –

Back 98

Absentee who wants to join a pending suit must make a timely application.

Front 99

7. COMPLEX CASES
d. Intervention –
i. Intervention as a matter of right

Back 99

1. Applicants interest may be impaired or impeded, AND

2. That interest is NOT adequately represented by existing parties.
a. Example – Co-owners in land when land is the subject of the lawsuit.
b. Must have proper SMJ

Front 100

7. COMPLEX CASES
d. Intervention –
ii. Permissive Intervention (Court has discretion)

Back 100

1. Common question of law or fact AND

2. Allowing intervention will NOT unduly delay or prejudice the original case.
a. Example: Hippies
b. Must have proper SMJ

Front 101

7. COMPLEX CASES
e. Interpleader –

Back 101

Stakeholder forces all potential claimants into a single lawsuit to avoid multiple or inconsistent judgments. Note – Stakeholder can also be a claimant

Front 102

7. COMPLEX CASES
e. Interpleader –
i. Rule Interpleader (Rule = Regular)

Back 102

1. Diversity Requirement – Complete diversity between stakeholder and claimants.

2. Amount in Controversy – Greater than $75,000

3. Service of Process – treated as a regular
lawsuit

4. Venue – treated like a regular lawsuit

Front 103

7. COMPLEX CASES
e. Interpleader –
ii. Statutory Interpleader

Back 103

1. Diversity Requirement – Diversity between ANY two claimants. (Stakeholders citizenship is irrelevant)

2. Amount in Controversy – $500 or more

3. Personal Jurisdiction – Nationwide (No minimum contacts required)

4. Venue – Any district where any claimant resides.

Front 104

7. COMPLEX CASES
f. CLASS ACTION – Representative sues on behalf of class members
i. Initial Requirements (CANT – must meet ALL)

Back 104

1. Numerosity – So numerous that joinder of all members would be impractical.

2. Commonality – At least one questions of law or fact are common to the class.

3. Typicality – Representatives claims / defenses are typical of those in the class

4. Adequacy of Representation – Representative will fairly and adequately represent the class
a. Note – Court may cure "inadequate representation" problems by appointing a number of representatives, lawyers, or creating subclasses.

Front 105

7. COMPLEX CASES
f. CLASS ACTION – Representative sues on behalf of class members
ii. Must fit in ONE of three categories

Back 105

1. Prejudice – Class treatment is necessary to avoid harm either to class member or to party opposing the class. (i.e. limited fund)

2. Injunction or Declaratory Relief – (Not damages) - If the entire class requests injunctive relief. (i.e. employment discrimination / dumping in pond)

3. Damages – When the (1) common questions of law and fact by the class predominate over individual differences, AND (2) the class action is superior method to handle the dispute. (i.e. Bus crash / cigarette mass tort)
a. Opt Out Notification (Damages) – For a damages class actions the court must notify all reasonably identifiable class members of their right to:
i. Opt Out of the class action,
ii. If they fail to opt out they’ll be bound by the judgment, AND
iii. They can enter a separate appearance through counsel
1. Note – The class representative pays to give notice

Front 106

7. COMPLEX CASES
f. CLASS ACTION – Representative sues on behalf of class members
iii. Certification

Back 106

1. Court must determine at an early practicable time whether to certify the case to proceed as a class action. If the court certifies the class it must define the class and the class claims, issues or defense
a. Class counsel must fairly and adequately represent the interest of the class.

Front 107

7. COMPLEX CASES
f. CLASS ACTION – Representative sues on behalf of class members
iv. Settlement and Dismissal –

Back 107

Settlement and dismissal of class claims in a certified class requires court approval. The court will give notice to the class of the potential settlement or dismissal and receive feedback.

1. Damages Class action – the court must give the class a 2nd chance to opt out

Front 108

7. COMPLEX CASES
f. CLASS ACTION – Representative sues on behalf of class members
v. Subject Matter Jurisdiction

Back 108

1. Federal Question – The most common basis given the 75k threshold in diversity

2. Diversity – Only focus on the Class Representative. (i.e. class rep must be diverse from all Ds and the amount of the reps claim must exceed 75k)

3. Class Action Fairness Act – Valid Jurisdiction if:
a. 100 Class members aggregate their claims to reach 5 million
b. Any one P is diverse from any one D
c. Red Carpet Removal – One D can remove, and a local D can remove.

Front 109

7. COMPLEX CASES
f. CLASS ACTION – Representative sues on behalf of class members
vi. CA Class Actions – Must have an ascertainable class with a well defined community of interest.

Back 109

1. Ascertainable Class

2. Well Defined Community of Interest – Courts will consider:
a. Whether Common Questions of law or fact Predominate
b. Whether the Class Representative is Adequate
c. Whether certifying the Class will result in a Substantial Benefit to the court and parties.

3. Classes – CA does not separate Class Actions into separate classes.

4. Notice – Individual notice is NOT required. Notice can be by publication. In federal court, the class rep pays, in CA the court decides who will pay

5. Opt Out – The court may allow parties to Opt Out, but those parties who do not opt out are bound by the judgment.

6. Dismissal – Settlement or dismissal must be approved by the court.

7. Jurisdiction – May aggregate all plaintiff’s claims to reach the $25,000 threshold for Unlimited Civil cases.

Front 110

8. PRETRIAL ADJUDICATION
a. Voluntary Dismissal

Back 110

A P can voluntarily dismiss as a matter of right before an answer or motion for summary judgment is filed by filing a written notice of dismissal.

i. Only One without prejudice – A party can dismiss once without prejudice. (P can re-file case) A second dismissal operates as an adjudication on the merits. (with prejudice)

Front 111

8. PRETRIAL ADJUDICATION
a. Voluntary Dismissal
ii. CA –

Back 111

Can voluntarily dismiss at any time before trial and is up to the court whether it is dismissed with prejudice.

1. If P moves for voluntary dismissal after trial starts, it may only be granted with prejudice unless parties stipulate otherwise or court finds good cause to dismiss without prejudice.

2. CA state courts have discretion to dismiss if the case has not been brought to trial or D has not been served with process within 2 years after filing.

Front 112

8. PRETRIAL ADJUDICATION
b. Involuntary Dismissal

Back 112

May be allowed on court order for failing to comply with the FRCP or any court order.

i. On the Merits – Operates as a finding on the merits unless it is based on lack of IPJ or SMJ, improper venue, or failure to join an indispensible party.

ii. CA – Mandatory dismissal if the case is not brought to trial within 5 years after filing, or process is not served within 3 years of filing.

Front 113

8. PRETRIAL ADJUDICATION
c. Default / Default Judgment
i. Default

Back 113

Notation by the court clerk on the docket upon a showing that the D failed to respond within 21 days after being served. (60 days if waived service)

Front 114

8. PRETRIAL ADJUDICATION
c. Default / Default Judgment
ii. Default Judgment by Clerk

Back 114

The clerk of the court may enter judgment if:

1. D made NO response at all

2. The claim itself is for a SUM CERTAIN in money,

3. Claimant provides an affidavit (sworn statement) of the sum owed

4. D is NOT a minor, incompetent, or in the military

Front 115

8. PRETRIAL ADJUDICATION
c. Default / Default Judgment
iii. Default Judgment by Judge

Back 115

If any of the 4 elements are not met the judge will hold a hearing to have the parties PROVE UP the damages.

1. Notice – D will only get a 5 day notice if he made some appearance in the case.

2. Amount – The default judgment may not exceed the amount in the pleadings. (This is different if the case goes to trial where the D can recover more or different damages then stated in their pleadings)

Front 116

8. PRETRIAL ADJUDICATION
c. Default / Default Judgment
iv. Set Aside Default

Back 116

The court may set aside a default “for good cause shown” within 1 year for excusable mistake, neglect or fraud.

Front 117

8. PRETRIAL ADJUDICATION
d. 12(b)(6) Failure to State a Claim

Back 117

Even if everything you allege in your complaint is true, no legal liability attaches to the D.

i. The court will ONLY look at the sufficiency of P’s complaint

ii. P’s compliant can also show on its face that there is a complete defense

iii. Aka – Motion for Judgment on the Pleadings

iv. P will usually be given leave to amend if granted.
1. CA – This is called a General Demurrer

Front 118

8. PRETRIAL ADJUDICATION
e. Summary Judgment

Back 118

Summary judgment shall be granted when:

i. There is no genuine issue as to any material fact, AND

ii. The moving party is entitled to judgment as a matter of law
1. i.e. when no reasonable person could find for the nonmoving party.
2. Evidence – Motion is based on the pleadings, affidavits, discovery and other authenticated documents (Whole record)
a. Note – affidavit – sworn statement made under penalty of perjury.
b. Note – Unverified Pleadings AND Inadmissible Hearsay is NOT evidence (Can’t rely on your pleadings / hearsay)
3. The court generally views the evidence in light most favorable to the nonmoving party.
4. Court will NOT weigh the evidence or judge credibility of witnesses.

iii. Burden Shifting – If D moves for summary judgment showing P’s cause of action lacks merit, or P moves for summary judgment showing there is NO defense to the cause of action, the burden shifts to the opposing party to demonstrate that a triable issue of fact exists.

iv. CA – Must file and serve a separate statement of undisputed facts that accompanies the motion for summary judgment.

Front 119

8. PRETRIAL ADJUDICATION
f. Motion for a Judgment on the Pleadings

Back 119

i. Either party may make a motion for judgment on the pleading after the complaint and the answer have been submitted.

ii. Judgment on the pleadings will be granted if the information of the face of the pleadings alone reveals that the movant is entitled to a judgment as a matter of law.

Front 120

9. CONFERENCES
a. Mandatory Meet and Confer

Back 120

Lawyers are to meet least 21 Days before the scheduling conference, to discuss claims, defenses and settlement. Must form discovery plan and present it to the court in writing within 14 Days.

i. CA – Not required to discuss discovery plan.

Front 121

9. CONFERENCES
b. Scheduling Conference

Back 121

– The court enters an order scheduling cut-offs for joinder, amendment, motions, etc.

i. CA – Case Management Conference – must take place within 180 days after filing the complaint. Court will review matters such as service, pleadings, discovery issues, and the appropriateness of ADR. Before the conference, parties must meet and confer and file and serve “Case Management Statement” addressing such issues. Court issues the case management order.
1. “Fast Track” – Cases are actively managed to meet the goals of disposition of the court. (May impose sanction for failure to comply)

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9. CONFERENCES
c. Pretrial Conference –

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The court may hold pretrial conferences as needed to expedite the case and foster settlement. Final pretrial conference determines issues to be tried and evidence to be proffered. Recorded in pretrial conference order that basically supersedes the pleadings. It may be amended to prevent manifest injustice.

i. The final pretrial conference order is an important document – it is a roadmap of issue to be tried, evidence to be presented at trial, witnesses, etc. (allows no surprises at trial)

ii. If no in the final pretrial order – it is not allowed in.

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9. CONFERENCES
d. Alternative Dispute Resolution

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Each court has an ADR program, aimed at reducing case congestion. Courts may require parties to arbitrate their disputes prior to trial.

i. Note – Party who receives an offer to settle and refuses and receives less on the judgment will have to pay the other parties fees.

ii. Contractual Arbitration – when parties agree in writing to arbitrate it is binding

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10. TRIAL
a. Jury

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Decides questions of FACT, and are instructed on the law by the judge.

i. Right to a Jury Trial – The 7th amendment (which ONLY applies in Federal Court) preserves the right to a jury in civil actions at LAW, but NOT in suits in EQUITY.
1. Hybrid Claim – There is a right to a jury trial on all facts underlying the claim at Law, but NO right to a jury trial on the Equitable claim.
a. Note the claim at LAW will be decided first and the claim in equity will be left to the judge.
b. CA – Equity claim will be heard first.
2. Demand – Must demand in writing, no later than 14 Days after service of the last pleading raising issues triable to a jury.
a. CA – Must be made within 5 days.
3. Number – Minimum 6 Jurors, maximum of 12 (6 must be unanimous)
a. No alternate jurors in federal court – all participate unless excused for good cause.
b. CA – 12 Jurors requiring a ¾ verdict allowing substitutes.

ii. Voir Dire – In the jury selection process (“voir dire”) each side has Unlimited strikes for cause (e.g. bias, prejudice, related to the parties). Each SIDE also gets THREE peremptory challenges that may be used for any reason other than discrimination based on race or gender.
1. CA – Each PARTY gets SIX peremptory challenges that cannot be used to discriminate for ANY suspect or semi-suspect classification.

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11. DISPOSITION Without Trial
a. Motion for Judgment as a Matter of Law

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The court may grant a JMOL where reasonable people could not disagree as to the result.

i. Effect – takes the case away from the jury

ii. When? – After the other side has been heard at trial.
1. D can move twice – once at close of P’s evidence and at close of all evidence.
2. P only at the close of evidence.

iii. Court must consider the evidence in the light most favorable to the non-moving party.

iv. CA – This is called a Motion for Directed Verdict

v. CA – When the D moves for this at the end of P’s case, it is called a Motion for a Non-Suit.

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11. DISPOSITION Without Trial
b. Renewed Judgment as a Matter of Law –

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Same standard as JMOL but occurs after the verdict.

i. i.e. If granted, the jury reached a conclusion reasonable people could not have reached.

ii. The motion must be made within 28 days after entry of judgment.
1. CA – Must be filed within 15 days of mailing or service of notice of entry of judgment, OR 180 days after entry of judgment if no notice is received.

iii. Prerequisite – A motion for JMOL made at an appropriate time during trial is a prerequisite to bring a renewed JMOL. (If you didn’t bring a JMOL you can’t bring a renewed JMOL)

iv. CA – This is called a Judgment Notwithstanding the Verdict (JNOV)

v. CA – No prerequisite requirement as in federal court. (not required to make a motion for directed verdict at trial)

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11. DISPOSITION Without Trial
c. Motion for a New Trial

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– Judgment entered but serious errors at trial require a new trial.

i. Timing – Within 28 days after entry of judgment.
1. CA – Must be filed within 60 days after service of the notice of entry of judgment, OR 180 days after entry of judgment if no notice is received.

ii. Grounds
1. Errors in law – wrong evidentiary ruling, jury instructions.
2. Newly discovered evidence – That couldn’t have been discovered with due diligence for the original trial.
3. Attorney, Third Party or Jury Misconduct
4. Verdict is against clear weight of evidence
5. Excessive or Inadequate Damages

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10. TRIAL
d. Additur / Remittitur

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A court may grant a new trial unless a party accepts an additur or remittitur.

i. Remittitur – When jury awards a large figure that shocks the conscience the court can order a new trial or offer remittitur which gives the P the choice of taking a lesser figure (which the court sets) or go through a new trial.

ii. Additur – When the jury awards a low figure that shocks the conscience the court can order a new trial or additur which gives the D the choice of paying a greater amount in damages (which the court sets) or go through a new trial.
1. Note – Additurs are NOT allowed in federal courts because they are considered unconstitutional as violating a P’s right to a jury trial under the 7th amendment.
2. CA – Additurs are allowed.

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11. DISPOSITION Without Trial
e. Motion to Set Aside Judgment

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On motion, the court may relieve a party from judgment if:

i. Newly discovered evidence – That couldn’t have been discovered with due diligence for a new trial motion

ii. Mistake, Excusable Neglect

iii. Clerical Error

iv. “Any other reason that justifies relief.” – Only to be used in extraordinary circumstances, e.g. counsel’s gross negligence

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12. APPELLATE REVIEW
a. Appeal – In Federal Court you appeal from federal district courts to the U.S. Court of Appeals
i. Final Judgment Rule

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Can only appeal from final judgments, which means the trial court has made an ultimate decision on the merits of the entire case.

1. i.e. nothing is left for the court to do on the merits but execute the judgment

2. Note – Grant of motion for a new trial is NOT a final judgment because the trial court must still hear the new trial and decide it on its merits.

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12. APPELLATE REVIEW
a. Appeal – In Federal Court you appeal from federal district courts to the U.S. Court of Appeals
ii. Timing

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Must file notice of appeal in trial court within 30 days after entry of final judgment

1. CA – Must be filed within 60 days after service of the notice of entry of judgment, OR 180 days after entry of judgment if no notice is received.

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12. APPELLATE REVIEW
a. Appeal – In Federal Court you appeal from federal district courts to the U.S. Court of Appeals
iii. Interlocutory (NON Final Review)

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Following are appealable with no final judgment.

1. Multiple Claims and Parties – The trial court may enter a partial final judgment on one claim or to one party which is then appealable.

2. Collateral Orders – A matter may be appealed if it is collateral to merits of the case that is too important to be denied review. (i.e. claim of immunity)

3. Injunctions / Attachments – May review an order granting, continuing, modifying, or refusing to grant an injunction or attachment.

4. Interlocutory Appeals – An interlocutory appeal may be permitted by leave of court if:
a. Trial judge certifies that,
b. It involves a controlling issue of law or fact,
c. As to which there is a substantial difference of opinion, and
d. The Court of Appeals agrees to hear it,
i. Ex. granting or dismissing a collateral motion.
e. CA – Must also direct payment of money or performance of an act.

5. Extraordinary Writ – If an order is not otherwise appealed, the aggrieved party may seek a Writ of Mandamus (to compel a lower court to do something the law requires) or a Writ of Prohibition (to stop a lower court from doing something that law does not allow). (Not technically an appeal)
a. Party seeking writ must demonstrate:
i. That she will suffer irreparable harm if the writ is not issued
ii. The normal route of appeal from final judgment is inadequate
iii. Has a beneficial interest in the outcome of the writ proceeding
b. CA – This is the only way to seek review of a denial of a motion to quash or inconvenient forum.

6. Class Action – Court of appeals has discretion to review an order granting or denying certification of class action.
a. Timing – Must seek review within 14 days of order.

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13. CLAIM / ISSUE PRECLUSION

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– Whether a judgment already entered precludes litigation of any matters in another case.

a. What Law Applies – The law of the system that decided the earlier case (federal or state)

b. Affirmative Defenses – Claim and issue preclusion are affirmative defenses, so they should be raised in your answer or motion or they will be waived.

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13. CLAIM / ISSUE PRECLUSION
c. CLAIM Preclusion

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Based on the premise that you only get to sue on a cause of action (or claim) once to vindicate all your rights to relief.

i. Requirements:
1. Same Claimant Against the Same Defendant – Case 1 and case 2 were brought by the same person against the same person.
2. Judgment was Valid, Final and On the Merits
a. Final – If the case is being appealed is it a Final Judgment?
i. Federal – YES
ii. CA – NO
b. On the Merits – ALL judgments are on the merits UNLESS based on:
i. Jurisdiction (Personal and Subject Matter)
ii. Venue
iii. Indispensible Parties
3. Same Cause of Action (or Claim)
a. Federal – ALL claims arising out of the same transaction or occurrence.
b. CA – Primary Rights – You get one cause of action for each right invaded.
i. i.e. You can bring a separate claim for property damages and personal injury arising out of the same occurrence.
c. Contracts Note – “Rule of Accumulated Breaches” All claims that arose prior to the time suit was brought are precluded (but NOT for breaches occurring afterwards).

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13. CLAIM / ISSUE PRECLUSION
d. ISSUE Preclusion – Precludes re-litigation of a particular issue that has been previously litigated and determined.
i. Requirements

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1. Judgment was Valid, Final and On the Merits in case 1

2. Same issue was Actually Litigated and Determined in case 1

3. The Issue was Essential to the Judgment in case 1– Without the issue the judgment is case 1 would have been different.

4. Against a Party (or their privies) – The issue may only be used against someone who was a party to case 1. (Required by Due Process)
a. Privies – successors in interest, class representatives in a class action.

5. May be used by Whom? (NOT required by Due Process)
a. Mutuality – Traditional View (Minority) – Only by a Party or his privy
b. Non-Mutual – The modern rule is that a Non-Party may preclude a party from re-litigating an issue.

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13. CLAIM / ISSUE PRECLUSION
d. ISSUE Preclusion – Precludes re-litigation of a particular issue that has been previously litigated and determined.
ii. Offensive and Defensive Use of Prior Judgment

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1. Defensive – When D-2 seeks to prevent P from re-litigating a claim lost to D-1.

2. Offensive – When P-2 seeks to prevent D from re-litigating an issue lost to P-1.
a. Non-parties may use Offensive if: (Factors used to determine by court)
i. That party had Full and Fair opportunity to litigate the issue,
ii. Multiple lawsuits were foreseeable,
iii. Unavailable in the first action, (could not have joined) AND
iv. NO inconsistent judgments on record.