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27 Cards in this Set
- Front
- Back
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CA Service of Process
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1) Summons
2) Complaint By any non-party over age of 18 |
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CA Service of Process -- Methods
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1) Personal (same as Fed)
2) Substituted Service (DIFF from FED) -- if individual service "cannot with reasonable diligence be had" 3) Mail (Diff from Fed) 4) Service by public --LAST RESORT-- |
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CA Service of Process -- Substituted Service
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IF individual service "cannot with reasonable dilligence be had"
1) @ Defendant's usual abode or mailing address 2) Must be left with a competent member of the household @ least 18 yo 3) Person must be informed of contents 4) Process must also be mailed by first-class mail, postage pre-paid to D |
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CA Service of Process -- Mail
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p. 46
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CA Service of Process -- Outside of CA
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Any manner allowed by CA law
OR Mail w/ postage pre-paid and return receipt requested |
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CA Service of Process -- Immunity
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Cannot be compelled to testify in CA if non-resident
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CA -- Frivolous litigation
(DIFF from FED) |
Statute mirrors Rule 11 -- but 21 day safe harbor includes sua sponte motion by Court
Another CA statute -- attorneys fees and costs payable if in bad faith or frivolous tactics --frivolous tactics = w/o merit or sole purpose of harassing an opposing party --NO SAFE HARBOR |
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CA -- Complaint (Contents)
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1) Statement of ULTIMATE facts
2) Demand for judgment 3) Amount sought (EXCEPTIONs -- personal injury, wrongful death, puntive damages) |
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CA -- Fact Pleading
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Must allege ultimate facts on each element of each COA
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CA -- Heightened Pleading Requirements
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Require specific particularity:
Fraud Civil consipracy, tortious breach of K, unfair business practices, mass product liability claims among multiple Defs from exposure to toxins |
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CA -- Fictitious Defendant
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Must allege:
1) P unaware of D's true identity 2) must state cause of action against the Doe defendant |
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CA -- Defendant's Responses to Initial Complaint
Timing |
Due within 30 days
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CA -- Defendant's Responses to Initial Complaint
BIG LIST |
1) Answer 2) Demurrer -- General / Specific
3) Motion to Quash Service of Summons 4) Motion to Dismiss or Stay 5) Motion to Strike |
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CA -- Defendant's Responses to Initial Complaint -- Answer
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CA -- Defendant's Responses to Initial Complaint
Answer DUE within 30 days of service of process competion If verified complaint, need verified answer Affirmative defenses -- must state with specificity ultimate facts |
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CA -- Defendant's Responses to Initial Complaint
General Demurrer |
1) failure to state facts sufficient to constitute
2) lack of SMJ 3) affirmative defense type stuff) becomes motion for jugdment on the pleadings after D has pleaded and time for demurrer has expired |
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CA -- Defendant's Responses to Initial Complaint
Special Demurrer |
1) Uncertain, ambiguous, or unintelligible
2) Unclear about which theories of liability are asserted against each of the defendants 3) lack of legal capacity 4) existence of same case already existing between parties 5) defect/misjoinder of parties 6) failure to plead whether K oral or written 7) failure to file certificate of merit (architects, engineers, land surveyors for professional negligence) |
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CA -- Defendant's Responses to Initial Complaint
Motion to Quash Service of Summons |
Usually to assert:
1) Lack of PJ 2) Improper Process 3) Improper Service of Process SPECIAL APPEARANCE 1)Lack of PJ 2) Improper Process 3) Improper Service of Process Must be made BEFORE or WITH: Demurrer Answer Motion to Strike NEVER AFTER --> otherwise these defenses WAIVED |
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CA -- Defendant's Responses to Initial Complaint
Effect of Denial of Motion to Quash |
Defendant must plead within 15 days
Can only be reviewed by appellate court if Writ of Mandate sought w/in 10 days |
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CA -- Defendant's Responses to Initial Complaint
Motion to Dismiss or Stay |
Must be filed before answer/demurrer/motion to strike
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CA -- Defendant's Responses to Initial Complaint
Motion to Strike |
To strike all or part of any pleading
Court may strike anything irrelevant, false, or improper |
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CA -- Defendant's Responses to Initial Complaint
Anti-SLAPP Motion to Strike |
When First Amendment invoked --> Defendant can file anti-SLAPP motion
Burden then shifts for Plaintiff to show probability of winning on the merits --motion must be more than Plaintiff enforcing a public right Defendant who wins anti-SLAPP motion can sue for malicious prosecution under SLAPP-back suit |
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CA -- Defendant's Responses to Initial Complaint
Answer |
DUE within 30 days of service of process competion
c |
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CA -- Defendant's Responses to Initial Complaint
Cross-Complaints |
If arises from same transaction or occurrence as P's claim --> compulsory (must be asserted)
If does not arise from the same transaction or occurrence as P's cause of action --> permissive (does not have to be asserted in the same claim) (see separate card for cross-claims against co-parties and third-parties) serve w/ SUMMONS if party has not yet appeared in the case |
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CA -- Defendant's Responses to Initial Complaint
Cross-claim Against Co-Parties |
(defendants suing other defendants)
must arise from the same t/o ALWAYS permissive |
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CA -- Defendant's Responses to Initial Complaint
Cross-Complaints Against Third-Parties |
usually for indemnification/contribution
same as Federal interpleader ule Interpleader -- stakeholder must be diverse from every claimant Statutory Interpleader -- one claimant must be diverse from another claimant (stakeholder citizenship irrelevant) |
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CA -- Defendant's Responses to Initial Complaint
Amending Pleadings |
Plaintiff can amend pleading before Defendant answers/demurrers
-After demurrer filed (but before hearing), Plaintiff or Defendant can amend once as a matter of course -Plaintiff or Defendant can also seek leave of Court to amend -Amendment to conform to evidence (After trial) also available Sustained demurrers or Granted motions to strike usually come WITH leave to amend, possibility WITHOUT |
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CA -- Defendant's Responses to Initial Complaint
Relation Back and Amended Pleadings |
Applies to new claims
-ok even after SOL runs for "misnomers" --fictious defendants --> if true defendant substituted within 3 years, relation back |
