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156 Cards in this Set

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  • Back
What are the three types of jurisdiction?
1) in personam
2) in rem
3) quasi in rem
What is jurisdiction in personam?
When the forum has power over a particular defendant.
What is in rem jurisdiction?
When the forum has power to adjudicate the rights of ALL people with respect to a particular piece of property.
What is quasi in rem jurisdiction?
When the forum has power to determine the rights of particular people with respect to a particular piece of property
In CA, how may a court obtain in personam juridiction?
1) physical presence at time of personal service (okay they are here only as a witness in a judicial proceeding)
2) domicile--place where maintains permanent home
3) consent--express, implied, general appearance, by contract, appointment of agent
4) long arm statute--extent of constitution
What are the constitutional limitations of in personam jurisdiction?
1) sufficient contact
- physical power
- contact and fairness
2) Notice
What is contact for the purposes of in personam jurisdiction?
1) minimum contacts such that jurisdiction would be fair and reasonable
2) purposeful availment of the privileges of conducting activities in the state
3) must know or reasonably anticipate that her activities in the forum render it foreseeable that she may be haled into court
What is fairness for in personam jurisdiction?
Must not offend the traditional notions of fair play and substantial justice...

1) claim is related to D's contacts
2) D has systematic and continuous activity in the state
3) Convenient to the defendant (forum is convenient unless gravely difficult and inconvenient)
4) state has a legitimate interest
5) plaintiff's interest in convenience and effectiveness
6) furtherance of social policies
What notice is required for in personam jurisdiction?
notification via a reasonable method and given an opportunity to appear and be heard
What is required for in rem jurisdiction
Property is located in the state
what is required for quasi in rem jurisdiction?
Still require minimum contacts:

1) for disputes about property in state --> need close connection between litigation and the contact
2) for disputes unrelated to the property --> need additioanl contact besides presence of property such that in personam over the defendant is proper
How does a case meet diversity of citizenship?
1) complete diversity--plaintiff and defendant are citizens of different states
2) matter in controversy over $75,000
What determines an individual's citizenship?
- The permanent home to which he intends to return or remain
- Child: citizenship of his parents
What determines a corporation's citizenship?
- where the corp is incorporated and the principal place of business
- If executive office and place of business are different, use state where physical operations are
- If operations are all over, then use state where "never center" (aka executive office) is
What determines the citizenship of corporations in foreign countries?
They are aliens for diversity purposes. But if they are also in the US, they have citizenship in the states as well.
What determines the citizenship of unassociated associations?
Corp is a citizen of each state where any member is a citizen.
The legal representative of the estate of a decedent, infant, or incompetent is a citizen of what?
Same citizenship of the decedent, infant, or incompetent.
How is the citizenship of a class in a class action suit determined?
Via the representative of the class.
What is the citizenship of a permanent resident alien?
She is a citizen where she is domiciled even though it is foreign.
How does the court treat a collusion to defeat or create diversity?
The court will not will through the non-genuine citizenship.

To determine if there is diversity, the court will look at where true interests lie
What is supplemental jurisdiction and how does it relate to diversity jurisdiction?
Under supplemental jurisdiction, a court can hear cases they normally could not because of lack of a 1) federal question or 2) diversity and hear it if the claims arise from a common nucleus of operative fact as its "sister" claim that was able to invoke federal subject matter jurisdiction.
How does a party seeking to intervene in a case as of right get jurisdiction?
Must have an independent basis of jurisdiction (federal question or diversity).

CANNOT come in under supplemental jurisdiction.
What is impleader and does it matter if the third party destroys diversity?
Impleader occurs when the defendant impleads another party into the claim. i.e. A sues B who then impleads C. Lack of diversity between A and C does not destroy diversity.
Supplemental jurisdiction may not support what types of claims if the main case is based solely on diversity?
1) claims by plaintiffs against persons made party via impleaders, compulsory joinders, permissive joinders
2) claims by compulsorily joined plaintiffs
3) claims by persons seeking to intervene as plaintiffs
What is a cross-claim?
A v. B and C, then B sues C (or vice versa). This is okay if B v. C is same T/O as A v. B and C.

PLUS must get into federal court via either federal question, diversity, or supplemental jurisdiction (common nucleus of operative fact)
In the requirement that the matter in controversy must exceed $75,000, what does "in controversy" mean?
1) it does NOT mean the collateral effects of the judgment
2) does not include interest and costs (lawyers fees are not costs)
3) includes "costs" of equitable relief (e.g. costs of injunction)
4) punitive damages
How may one determine the "cost" of equitable relief?
1) from P's viewpoint: What is the value of the harm caused?
2) from D's viewpoint: What would it cost to comply with the injunction if ordered?
3) A mixed test:whether under EITHER test, the amount in controversy exceeds $75k
How does aggregation work with multiple claims against the same defendant?
May all be aggregated to reach over $75k even if they are not legally or factually related.
How does aggregation work with one plaintiff against several defendants based on separate liabilities?
P cannot aggregate the claims.
How does aggregation work with one plaintiff against several defendants in the same claim?
There is no aggregation problem if there is joint liability because the court will view the amount in controversy for the claim as a whole.
How does aggregation work if there are several plaintiffs against one defendant?
The several plaintiffs may aggregate their claims only where they are seeking "to enforce a single title or right in which they have a common or undivided interest."
In terms of aggregation, how does CA differ from federal courts?
They don't!
How may claims overcome the problem of not meeting the amount in controversy issue?
If there is diversity, but the amount in controversy is not enough, they may join another claim to reach the amount via supplemental jurisdiction if it involves the same nucleus of operative fact.

Note: there MUST already be diversity!
May counterclaims be combined with the claim to reach over $75k?
No.
May compulsory counterclaims (same T/O) be used to reach over $75k?
Irrelevant since a compulsory counterclaim is brought in under supplemental jurisdiction and as such amount in controversy is a non-issue.
May permissive counterclaims (different T/O) be used to reach over $75k?
Nope--must have independent grounds for jurisdiction (federal question or diversity)
May a plaintiff use D's compulsory or permissible counterclaim to remove to federal court?
No, because only a defendant may remove to federal court.
What is the Erie Doctrine?
The federal court must use its federal procedural rules, but must apply substantive state law.
How does one determine whether something is "substantive" or "procedural?"
They use the "outcome determinative" test. A state law rule that substantially determines the outcome of litigation must be applied. If a federal rule is "arguably procedural" the federal rule will be applied.
How does a CA federal court deal with torts conflict of laws in a diversity case?
1) determine whether the laws of both states are the same
2) if laws are not the same, look to see if both states have an interest in the outcome
3) if both states have an interest, the court weighs the impairment to each state should the other's law be applied.
How does a CA federal court deal with contracts conflict of laws in a diversity case?
1) determine whether there is a choice of laws clause in the contract
2) if there is, the court determines whether the clause is enforceable by determining whether the chosen state's law has a substantial relationship to the parties or transaction
4) if enforceable, court sees whether the law conflicts with a fundamental CA policy
5) if law conflicts, court determines whether CA has materially greater interest that other state in determining the issue

If no conflicts of law clause or is unenforceable, the court will determine whether CA has an interest
What is the Multiparty, Multiform trial Jursidiction Act?
Applies to accidents involving at least 75 people...
Minimal diversity + one of three must be met:
1) one defendant must reside in a different state where the accident took place
2) any two defendants reside in a different state
3) substantial parts of the accident took place in different states.
How is venue in federal court determined?
1) where any defendant resides if all defendants reside there
2) where a substantial part of the events giving rise to a claim occurred
3) actions based solely on diversity --> where any defendant is subject to personal jurisdiction
4) if not solely based on diversity --> where any defendant may be found
5) local actions: where the land is located
How is venue in CA state court determined?
1) in any county where any defendant resides at the start of the action.
2) if no defendants reside in California --> any county is proper venue
3) contract actions: proper in the county in which the obligation is to be performed or where the contract entered
4) Personal injury actions: proper venue where injury occurred.
When is venue proper against a corporation in CA?
1) proper in the county in which the contract is made or to be performed
2) in which the obligation or liability arises
3) in which the breach occurs
4) country in which corporation has it principal place of business
When may venue be transferred in CA?
May be transferred if venue is proper if:
1) there is reason to believe the an impartial trial cannot be had in the original county
2) the convenience of witnesses and the ends of justice could be promoted by the change
3) there is no judge of the court qualified to act
When may claims originally filed in state court be removed to federal court?
1) case could have originally been filed in federal court
2) for cases removed on basis of diversity, no defendant is a citizen of the state where the action is filed
Who may exercise the right of removal?
only the defendant
Where is the venue for the action removed?
Venue is the federal district court "embracing the place where such state action is pending."
May a defendant remove a case to federal court if there are multiple claims or multiple parties?
Yes, defendant may remove entire claim if is contains "a separate and independent claim or cause of action" with federal question jurisdiction.

The federal judge may later sever non federal question parts of the case.
If there is no federal question jurisdiction and diversity does not exist, is removal allowed?
No, unless the non-diverse parties eventually get dismissed from the action and there is complete diversity.
If a case qualifies for federal jurisdiction because of diversity and one defendant is a citizen of the sate, may it be removed?
No, it's not removable to federal court in the state.
For diversity cases, what are the deadlines for removing the case and giving notice?
1) Must be removed at least one year after it commenced in state court
2) notice of removal must be filed within 30 days of defendant receiving notice of removal.
Which parties may remove a case to federal court?
Only defendants.
When there are multiple claims or multiple parties, when may the defendant remove the entire case?
When the case contains a "separate and independent claim or cause of action" within federal jurisdiction.
What can a plaintiff who wants to be in state court do if the case has been removed to federal court?
- P may remand the case back to state court.
- the federal court may remand back once all the federal claims have been resolved and all state, non diversity cases are left
Does a federal court have the power to enjoin a pending state court proceeding?
No--generally they are prohibited from enjoining a pending state court proceeding unless expressly authorized by statute or necessary, or to protect its judgments.
May federal court enjoin a threatened criminal court proceeding?
No--not unless irreparable harm is clear and imminent (e.g. serious First amendment problems).
May a federal court hear a case that is pending in state court?
Yes, unless the doctrine of abstention applies.
When does the doctrine of abstention apply?
1) if the state law is unclear and could be interpreted to avoid the federal constitutional question
2) if there is a state administrative regulatory plant that would be disturbed by federal interference
When may the federal court intervene on a state case?
If the plaintiff can prove:
1) great and immediate irreparable injury
2) bad faith in the prosecution of state action
3) harassment or other reasons for federal relief
How is service made in federal court?
- any non-party 18 or older may serve process
- personal service
- service left at defendant's usual place of abode
- service upon authorized agent
- valid as according to state rules
How is service made in California?
- any non-party 18 or older
- personal delivery
- substituted service (leaving copy of summons and complaint at authorized locations with authorized people followed by mailing)
- service by publication
How is a party served outside of state in federal court?
Under statute and rules for out of state service, the federal court will get personal jurisdiction over those served out of state:
1) if they are third party defendants or required to be a party for justice (must be served within 100 miles of where suit is)
2) and when out of state service is allowed by federal statute
How is a party served out of state in CA court?
- same as federal courts
- first class mail, postage prepaid and return receipt required
In federal and california courts, what immunity of service rules apply?
- Federal: immunity from service of those parties, witnesses, and lawyers appearing in state for an action
- CA: no immunity from process when in state for litigation
What is an interlocutory injunction and how is it used in procedure?
An equitable remedy by which a person is ordered to act or to refrain from acting in a specified manner. It is used to maintain the status quo under trial is held.
What types of interlocutory injunctions exist?
1) preliminary injunction
2) temporary restraining order
What does a preliminary injunction require be proven before granted?
Requires notice and showing of likelihood of winning on the merits (same in CA as Fed)
When is a temporary restraining ordered?
When it is necessary to prevent irreparable injury to the party, and the injury will result before a preliminary injunction hearing can be held
What are the requirements for an ex parte restraining order?
1) specific facts showing immediate and irreparable injury
2) efforts to give notice
3) must provide some security (money) to pay for any costs or damages incurred by the adverse party if he was wrongfully enjoined or restrained.
What type of notice is required for a temporary restraining order?
Doesn't need notice of the TRO hearing but person must receive actual notice of the TRO itself.
How long does a TRO last (Fed)?
Within 14 days unless the restrained party consents to an extension or good cause is shown for extension.
How long does a TRO last (CA)?
There is no specific time limit, but automatically ends when a preliminary injunction is either denied or granted.

- Without notice of TRO hearing, it will be automatically set within 15 days of the filing.
What type of general pleading does CA use and what specific types may be filed?
Fact pleading--requires the pleading of ultimate facts to support each element of each cause of action

1) complaints
2) demurrers
3) answers
4) cross complaints
What type of general pleading does federal court use?
Notice pleading--serves to give notice to opposing party.
What elements does a Federal Complaint contain?
1) statement of grounds for jurisdiction
2) statement of the claim showing entitlement for relief
3) demand for judgment for relief
What elements must a CA state complaint contain?
1) statement of facts constituting the cause of action
2) demand for judgment
3) If damages sought, amount must be stated except for punitive damages or those involved in personal injury or wrongful death
Prior to filing an answer, the defendant may raise which defenses in a 12b motion?
1) lack of subject matter jurisdiction (anytime)
2) lack of personal jurisdiction (at time he files motion or answer)
3) improper venue (at time he files motion or answer)
4) insufficient process (at time he files motion or answer)
5) insufficient service of process (at time he files motion or answer)
6) failure to state a claim upon which relief can be granted (prior to trial)
7) failure to join a required party (prior to trial)
Two exceptions where mailbox rule does not apply:
[1] Rejection mailed first, then letter of acceptance – rejection received first. Letter of acceptance operates as a counteroffer.

[2] Acceptance mailed first, then rejection sent – rejection received first. If offeror relied on letter of rejection before the acceptance is received, estoppel may apply.
What are grounds for a general demurrer? (CA)
1) pleading fails to state facts sufficient to constitute a cause of action
2) court lacks subject matter jurisdiction
What are grounds for a special demurrer? (CA)
1) lack of legal capacity
2) existence of another pending action
3) defect or misjoinder of parties
4) uncertain pleading
5) failure to plead whether a contract is oral or written
6) failure to file certain required certificates
When is a motion to quash service of summons used? (CA)
1) objecting to personal jurisdiction
2) objecting to service of process

If raised before or with answer, demurrer or motion to strike, D is not considered to have made a general appearance.
What is required in a motion for forum non-conveniens? (CA)
1) alternative forum is suitable
2) private and public interest factors in favor of the alternate forum

If granted, court will decline jurisdiction to hear the case in CA.

May make before general appearance (before demurrer or motion to strike) or wth demurrer or motion to strike.
What is a motion for more definite statement? (fed)
An answer to a pleading that is so vague or ambiguous that a responsive pleading cannot reasonably be framed.

Opposing party has 14 days to respond.
What is the CA equivalent of a motion for more definite statement?
Special demurrer--brought because the pleading is "uncertain"
What is a motion to strike? (fed)
It is a motion brought before responding to a pleading to have stricken any insufficient defense or any redundant, immaterial, or scandalous matter.
What is a motion to strike? (CA)
- A party moving to strike any irrelevant, false, or improper matter included in a pleading, or any part of a pleading not filed in conformity with statute, rule or court order.
- Anti-SLAPP motion to strike
What is an anti-SLAPP motion to strike? (CA)
If P sues D for an act D took in furtherance of her free speech right to right to petition the govt on a public issue, D can make an anti-SLAPP motion to strike

Steps:
1) D must make a showing that the cause of action in the complaint arises from protected activity (e.g. free speech)
2) burden shifts to P to show probability on prevailing on the merits

Cannot be brought if suit is truly in the public interest or on behalf of the public.
What is a SLAPP-back suit? (CA)
D who wins an anti-SLAPP suit can sue the person who sued her for malicious prosecution.
What does an answer consist of in federal court?
1) Must contain a specific denial or admission to each allegation in the complaint or a general denial with specific admissions.
2) Lack of information to admit or deny
3) Affirmative defenses
4) Anything not denied is admitted

Timing:
1) answer w/i 21 days of notice
2) If rule 12 motion, then 14 days after court's decision
3) 14 days after a ct grants rule 12e motion
What does an answer consist of in CA court?
1) general or specific denials
2) lack of information to admit or deny
3) anything not denied is admitted
4) affirmative defenses

Timing:
1) 30 days after service of process to answer
2) If brought a demurrer or motion to strike and it was denied --> 10 days answer
What is a default judgment?
If a party sends a complaint and the defendant fails to plead or respond, the court will enter default of the party.

Federal court enter default if:
1) plaintiff's claim against the defaulted defendant is for a certain amount
2) default entered because D failed to appear
3) defendant is not an infant or incompetent

CA court enter default if:
1) action arises out of a contract or judgment
2) for a certain sum
3) D not served by publication
Is notice required when a default judgment is entered?
Federal:
- all parties including defaulting party must be given notice

CA:
- defaulting party not entitled to notice of hearing and has no right to appear to present evidence
What is a California counterclaim called and what two types exist in both fed and CA?
Called a cross complaint in CA

1) Compulsory--same T/O and must be pleaded as counterclaim or else barred
2) Permissive--any other claim D has against P
Factually, what must a complaint contain?
1) facts based on P's personal knowledge, information and beliefs
2) facts must not be inconsistent
When must P reply to a counterclaim/cross-complaint be made?
Federal: if applicable, within 20 days after P receives service of D's answer.

CA: same except it would be in response to a "cross complaint"
When can amendments to a pleading be made?
At all stages of litigation:

Federal--once within 21 days of serving or within 21 days of receiving a response
California
- once as a matter of right before answer or demurrer is filed, or after demurrer but before trial
- after trial, only upon written consent of adverse party or by leave of court upon motion
When does relation back apply with to add a new claim against an already named defendant?
Relation back applies when adding a new claim if new claim based on "same general set of facts" as in original complaint.

Sometimes must:
1) involve same accident or injuries
2) must refer to same offending instrumentality
When does relation back apply to adding a defendant mistakenly unnamed to the case? (federal)
If statute of limitations has run, then amend away b/c relation back doesn't need to be applied.

If statute of limitations has run, then usually not unless
1) same T/O
2) within 120 days of filing the complaint the correct D received notice of the amendment and won't be prejudiced
3) correct D knew or should have known that she should have been the named defendant
When does relation back apply to fictitious does? (CA)
May relation back if:
1) the original complaint timely filed before statute of limitations ran and contained charging allegations against all fictitious defendants
2) P genuinely ignorant of Doe's identity
3) P pleaded such ignorance in the original complaint

P usually have 3 years from filing original complaint.
What things does a party certify to the court when they file court papers (e.g. motions, pleadings, etc.)
1) it is not presented for improper purposes
2) legal contentions are supported by existing law or is nonfrivolous
3) allegations are factual contentions and are likely to have evidentiary support
4) denials of factual contentions are warranted on the evidence or lack information
How may sanctions for violating the certification requirements be brought?
1) the court may enter and order and describe the violation
2) opposing party may serve a motion for sanctions

CA additions:
1) court assesses whether the party exercised due diligence
2) if sanction brought by opposing party for improper purposes, then that party open for sanctions as well

Sanctions: monetary penalties, attorney's fees, etc.
When is there a compulsory joinder?
Party MUST be joined if:
1) complete relief cannot be given to existing parties in his absence
2) disposition in absence may impair his ability to protect his interest in the controversy
3) OR his absence would create substantial risk
What if a compulsory joinder cannot be joined?
Court must decide whether to proceed for dismiss the case. Must consider:
1) whether the judgment in the party's absence prejudice him or the existing parties
2) whether the prejudice can e reduced
3) whether judgment would still be adequate without the party
4) whether P will be deprived of an adequate remedy
When is there a permissive joinder?
Party may be joined as permissive if:
1) some claim made by each P against each D relating to or arising out of same T/O
2) there is a question of fact or law common to all the parties
What are the requirements of a federal class action law suit?
1) class so numerous that joinder of all members is impracticable
2) questions of law or fact common to the class
3) named parties' interests are typical of the class
4) named parties will adequately represent the interests of the class
5) one of the following situations is present
- separate action would risk inconsistent results
- injunctive relief is appropriate
- common questions of law or fact predominate over individual issues and a class action is a better method of adjudication
What type of notice must be given in a federal class action suit?
Notice in federal class action is usually not required--only in common question suits.

1) nature of the action
2) definition of the class
3) the class claims, issues, or defenses
4) binding effect on the class
How is jurisdiction determined in federal class action diversity suits?
Go by the representative of the class:
1) her claim exceeds $75k
2) her citizenship to establish diversity
How is federal subject matter jurisdiction determined in a class action suit?
Under Class Action Fairness Act
1) ANY class member is diverse from ANY defendant
2) amount in controversy in aggregate is over $5 million
3) class is at least 100 members
4) any defendant may remove to federal court
Which actions are excluded under CAFA (aka no subject matter jurisdiction)?
- actions against states, state officials, govt entities
- class action that solely involves a claim under federal securities laws or based on incorporation
When MUST a federal court decline jurisdiction despite gaining it via CAFA?
1) more than 2/3 members in class are citizens of the state where filed
2) D from whom "significant relief" is sought is a citizen of the state
3) the principal injuries occurred in the state
When MAY a federal court decline jurisdiction when CAFA grants it?
1) if more than 1/3 but less than 2/3 of class are citizens of the state
2) the defendants are citizens of the state

Court will consider the following factors:
1) whether claims involve matters of national interest
2) claims will be governed by law of state where filed
3) whether the state has a distinct nexus with its citizens
When can a shareholder bring a shareholder derivative suit?
1) she was a shareholder at the time of the transaction complained of
2) action is not collusive for jurisdiction purposes
3) she made a demand of the directors
What are the requirements for a class action in CA?
When the question is one of common interest...

Elements:
1) ascertainable class
2) well defined community of interest among class members

"Community of interest" consider:
1) common questions of law or fact
2) class action device will result in substantial benefits to the parties
3) the class rep will adequately represent the class
What is an interpleader suit?
A suit initiated by the plaintiff (stakeholder) to compel two or more parties to litigate a suit, usually over their valid claim over property.
What are the requirements for an interpleader suit in federal court?
Rule 22:
1) complete diversity and in excess of $65k
2) OR federal question

Section 1335:
1) minimum diversity
2) $500 at issue

The person instituting the interpleader may have a stake in the property interpleaded.
What are the requirements for an interpleader suit in CA court?
Similar to federal except that it is unclear whether or not the stakeholder needs to be a disinterested party...
What is intervention in right (federal)?
It allows a nonparty to the suit to join the litigation because a judgment in the case may affect the rights of nonparties, and they should be heard.
What is permissive intervention? (federal)
Available when the applicant's claim or defense and the main action have a question of fact or law in common.
What is intervention in CA?
Permissive standard: whether the intervenor's interest is "direct and immediate" or is

If it is merely "indirect and consequential" then no intervention.
How may a defendant implead a third party in federal court?
D may implead if the 3rd party may be liable to D for any recovery P gets (e.g. indemnity).

1) Must be jurisdiction--either diversity, federal question, supplemental
2) venue need not be proper for 3rd party
3) 3rd party may assert defenses against D or P
How may a defendant implead a third party in CA court?
1) May implead if arises out of same T/O
2) 3rd party may assert any defenses against D or P
What is a cross claim (aka cross-complaint in CA)?
It is a suit between co-defendants or co-plaintiffs arising out of the same T/O

CA: cross complaint is permissive and requires a transactional relationship to the original complaint or same subject
What disclosure requirements in discovery exist in both Federal and CA courts?
CA: there are not automatic disclosure requirements!

Federal:
1) Initial disclosures
- names and contact info of people likely to have discoverable info, unless solely for impeachment
- copies of documents, e-docs, tangible things party may use for defense, except if solely for impeachment
- computation of damages
- copies of insurance agreements

2) Expert testimony disclosures
- ids of experts to be used
- expert's qualifications and opinions to be expressed and basis of opinions
- at least 90 days before trial unless expert used solely to rebut in which case 30 days after disclosure of rebuttable evidence

3) Pretrial disclosure
- list of witnesses at least 30 days before trial
- list of exhibits at least 30 days before trial
- objections made within 14 days after disclosure or else waived
In general, what type of evidence is discoverable (fed and CA)?
Fed: any non-privileged matter that is relevant to the claim or defense of any party and reasonably calculated to lead to discovery of admissible evidence

CA: must be relevant to the subject matter involved in the pending action
Must work product be disclosed (ca and fed)?
Fed:
- discoverable only if "substantial need" to avoid "undue hardship"
- absolute no disclosure of mental impressions, opinions, conclusions

CA:
- absolute no to work product with impressions, conclusions, opinions, legal research
Must consulting experts be disclosed? (ca and fed)
Fed: a party may depose TESTIFYING experts and may discover consulting experts via depos and interrogs

CA: do not need disclosure with consulting experts
Is a party required to provide supplemental discovery? (Fed and CA)
Fed:
Duty to supplement required disclosure and discovery if party learns that the info given was incomplete or incorrect.

CA:
no general duty to supplement previous discovery responses
What discovery tools are available in either court?
1) pre-action discovery (perpetuating one's own or another's testimony)
2) oral deposition of witness
3) depo via written questions
4) interrogs
5) production of physical material
6) physical and mental exams when in question
7) requests for admission
How may depos be used (ca and fed)?
- may be used to impeach later in trial
- for any purpose if the deponent is an adverse party
- for any purpose if the deponent is dead
- for any purpose if the deponent is at a distance greater than 100miles (fed) or 150 miles (CA)
What sanctions may the court apply if a motion to compel is not complied with?
1) order matters treated as admitted
2) prohibit opposing party from supporting or opposing certain claims or defenses
3) strike pleadings, enter default judgment, hold party in contempt
What types of federal court specific discovery sanctions may be given?
- immediate sanctions if fails to appear at own depo or fails to answer any interrogs
- automatic sanctions if fails to disclosure required info or fails to supplement discovery responses. such withheld evidence will be excluded from evidence
What types of CA court specific discovery sanctions may be given?
1) initial misuse --> monetary sanctions
2) subsequent misuse --> more serious sanctions
What pretrial proceedings are required? (Fed and CA)
Fed
- parties must meet and confer to discuss the claims, settlements, proposed discovery plans, timing, etc.

CA:
- not specifically required to meet and confer
What rights does a party have in getting a jury trial? (Fed)
- guaranteed under the 7th amendment for all "suits in common law" and exceeding $20
- must give a written demand for jury trial 14 days after filing pleading; failure --> waiver
What rights does a party have in getting a jury trial? (CA)
1) actions existing in common law similar to those at the creation of the CA constitution
2) trials in which the gist of the action is legal rather than equitable

- must make deposit if jury fees and expenses
- request for jury trial must be made at time the case is first set for trial or five days after notice of trial
- must orally or in writing waive right to jury trial, or fail to deposit fees or fail to demand jury trial; though ct has discretion
May a court consolidate trials?
Yes, in both fed and CA courts, if cases have a common question of law or fact.
May a court separate trials?
Yes, in both fed and CA courts, if separation --> judicial economy
When may involuntary dismissals be ordered? (ca and fed)
Fed: as D's request for failure to comply with fed rules or court order

CA: may be brought my ct or party motion for failure to bring matter to trial or timely serve process or as a sanction.
When may a party voluntarily dismiss a case? (fed and ca)
Fed:
- may dismiss w/o prejudice before D files an answer or summary judgment motion or if parties stipulate
- otherwise, dismissal w/prejudice unless leave of court

CA:
- voluntarily dismiss w/o prejudice before ct makes any ruling on an issue or before trial
- w/prejudice anytime move to dismiss after trial unless parties agree otherwise
What is a JMOL or directed verdict and when is it appropriate? (Fed and CA)
A judgment as a matter of law (JMOL/directed verdict) is a judgment in favor of one party if the evidence is such that reasonable people could not disagree as to the result viewed in light most unfavorable to the nonmoving party.

- IF D moves for JMOL after P finishes opening statement, it's called "nonsuit motion"
What is a renewed JMOL or JNOW and when is it appropriate? (Fed and CA)
A renewed judgment as a matter of law, formerly called judgment notwithstanding the verdict, is a judgment entered after a jury has returned a verdict, and the court takes the judgment away and gives it to the trial loser.

- Standard: if the evidence is such that reasonable people could not disagree as to the result (same in CA and fed)

Fed: a renewed JMOL only is JMOL has already been raised at some point
CA: a renewed JMOL does not require a directed verdict first

Timing: 15 days after mailing of judgment notice, or 180 after entry of judgment
When can a motion for a new trial be brought and on what grounds may it be brought?
Timing: 15 days after mailing out of judgment notice or after 180 days of entry of judgment

Grounds:
- misconduct on the part of the judge, adverse party, jury
- newly discovered evidence that moving party could not have discovered earlier
- excessive or inadequate damages
- insufficient evidence to justify the verdict
- verdict is against the law
- error in law during trial
- excessive or inadequate damages--"shocks the conscience"
What is remittitur and when is it appropriate?
Both fed and CA:
In a case where the damages figure shocks to conscience in how high it is, court can order a new trial or give P the chance to take a lower figure
What is additur and when is it appropriate?
Both fed and CA:
In a case where the damages figure shocks the conscience in how low it is, court can order a new trial or give D option of paying a greater amount in damages
When may summary judgment be granted?
Should be granted if, from the pleadings, affidavits, and discovery, there is no issue of material fact and the moving party may get a judgment as matter of law.

Timing, when to move--
Fed: at any time, up until 30 days after the close of discovery
Ca: after 60 days have elapsed since the general appearance of the party against whom the motion is brought

What type of support needed:
Fed: affidavits, discovery, admissions in pleading
CA: moving party must serve a statement of all undisputed material facts with supporting evidence for the fact

Court decision is not appealable.
When is a motion to set aside judgment appropriate?
If there has been a "mistake, inadvertence, surprise, or excusable neglect."

- must include an affidavit of fault by attorney attesting to his mistake, etc. (only CA)
- must be brought within a reasonable time, within 6 mo of the judgment
What is the final judgment rule? (fed and ca)
One cannot appeal until until the merits of the entire action are resolved

Fed: if multiple parties, one of the parties cannot appeal until ALL parties' judgment have been handed down

CA: if there are multiple parties, a D can appeal once that particular party's judgment is handed down
What is the timing for appeals? (Fed and ca)
Fed:
- filing a notice of appeal within 30 days from entry of the judgment

CA:
- within 60 days after mailing of service or
- within 180 days of entry of judgment
When an order is not otherwise appealable, how may a party get its problem addressed?
Extraordinary writ:
- writ of mandate: to compel a lower court to do something the law requires
- writ of prohibition: to stop a lower court from doing something the law doesn't allow

Must demonstrate:
1) they party will suffer irreparable harm if the writ is not issued
2) the normal route of appeal from final judgment is inadequate
3) party has a beneficial interest in the outcome of the writ proceeding

May be made in response to court denying a motion to quash service of summons.
What is res judicata (claim preclusion) and how is it determined?
1) earlier judgment was final, valid, and on the merits
2) cases are brought my the same claimant against the same defendant
3) the same cause of action or claim is involved
4) the cause of action was actually litigated or could have been litigated in the prior action

Note: In fed, "final judgment" means when judgment rendered. In CA, it means after all appeals have been exhausted.
In res judicata, what exactly does "cause of action" mean?
Fed:
- all claims arising out of the same transaction or occurrence that is the subject of the claim brought by P

CA:
- narrow definition than Fed
- a cause of action is defined as an invasion of a single primary right
What is collateral estoppel (issue preclusion) and how is it determined?
A previous judgment is conclusive in a subsequent action on a different cause of action between P and D as to issues actually litigated and essential to the judgment in the first action.
Against whom can issue preclusion be asserted?
Only against one who was party to case 1.
By whom can issue preclusion be asserted?
Traditionally, required mutuality. IOW, only asserted by one party to case 1.

Non-mutual defensive (not a party in case 1, but who is D in case 2):
1) Did case 1 end in a valid, final judgment?
2) Was the same issue litigated and determined in case 1?
3) Was the issue essential to the judgment of case 1?
4) Is issue preclusion being asserted against one who was a party in case 1?
5) Asserted by someone party in case 1? Nope, thus no mutuality, but okay as long as person against whom it is offered had a chance to fully litigate in case 1.

Non-mutual offensive (not a party in case 1, but who is P in case 2): same first 4 questions
1) Did case 1 end in a valid, final judgment?
2) Was the same issue litigated and determined in case 1?
3) Was the issue essential to the judgment of case 1?
4) Is issue preclusion being asserted against one who was a party in case 1?
5) Asserted by someone in case 1? Nope, thus no mutuality, but okay as long as person against whom offered had a chance to fully litigate.
Factors:
- full and fair chance to litigate?
- person could have foreseen multiple suits?
- person asserting it could not have joined in case 1?
- are there any inconsistent judgments on record? if so, probably no issue preclusion...