Civil Procedure - California - Focus Flash - Lecture

Front 1

6 Main Topics to keep in mind in analyzing civil procedure question

Back 1

1) Are you in the right court
2) Learning about the case
3) Complex cases - e.g. joinder
4) Adjudication
5) Appellate Review
6) Effect of judgment

Front 2

Personal Jxn analysis

Back 2

Idea is: can P sue in D in this state?

Two steps:
1) Satisfy a statute (e.g. state long arm statute) AND

2) Satisfy the Constitution (DP)

Front 3

PJ - State Analysis

Back 3

Statutorily:
PJ of Ds who are
1) served w/ process in the state, or
2) are domiciled in the state, or
3) do certain things (commit a tortuous act, conduct business) in the state

Front 4

PJ - Constitutional Analysis

Back 4

Test: does D have "such minimum contacts w/ the forum so that exercise of jxn does not offend traditional notions of fair play and substantial justice?"

Front 5

My Parents Frequently Forgot to Read Children's Stories

Back 5

Minimum Contacts: Purposeful availment; Forseeability

Fair play & substantial justice: Relatedness of contact and claim; Convenience; State's interest

Front 6

Minimum Contacts - determined...

Back 6

1) Domiciled, consents, present in the forum when served w/ process (traditional basis)

Front 7

What constitutes Contacts

Back 7

1) Purposeful availment - D's voluntary act; D Reached out to the forum, causing some effect

2) Foreseeability - foreseeable that D could get sued in the forum

Front 8

What is Fairness - Fair play and substantial justice

Back 8

1) Relatedness - quality of the contact w/ the forum, does the claim arise from there?

2) Convenience - the forum cannot put D at a SEVERE disadvantage in the litigation

3) State's interest - providing forum for its citizens

Front 9

Specific v. General jxn

Back 9

Specific - where claim arose from the forum state

General - need continuous and systematic ties, even though the claim did not arise from the forum state.

Front 10

Prior judgments preclusive effects - general thoughts....

Back 10

1) Use the 1st case's system of law

2) Issue/Claim preclusion are affirmative defenses, should be raised in the D's answer; brought up by summary judgment b/c no dispute of fact.

Front 11

Claim Preclusion (res judicata)

Back 11

Principally, a party gets one chance to sue on a cause of action (or claim). Must show:

1) The earlier judgment is valid, final, and on the merits

2) the cases are brought by the same claimant against the same D

3) the same cause of action (or claim) is involved in the alter lawsuit; and

4) the cause of action was actually litigated or could have been litigated in the prior action.

*Fed - judgment final once rendered; CA - judgment final when conclusion of any possible appeals. [FsCCL]

Front 12

When are cases NOT judged on the merits?

Back 12

when it entered the judgment based on:

1) Jxn
2) venue
3) Indispensable parties

Front 13

Distinction in defining "COA" between F and CA

Back 13

1) Fed - claims arising out of the same transaction or occurrence that is the subject matter of a claim asserted by the P.

2) CA - Primary rights doctrine - defined as an invasion of a single primary right

Front 14

What is the Primary Rights Doctrine?

Back 14

Can bring separate injury claims (e.g. property and personal) at different times - primary right

*however - be on the lookout for issue preclusion (collateral estoppel) issue; especially where it may be primary rights, but w/ like issues.

Front 15

Collateral Estoppel - Issue Preclusion

Back 15

Precludes litigation of same issue in subsequent case - analysis:

1) Did first case end in a valid, final judgment on the merits?

2) The same issue was actually litigated and determined in Case 1

3) The issue was Essential to the judgment in Case 1, w/out this issue, the judgment in case 1 would have been different.

4) Against someone who was a party to the previous litigation

Front 16

Against WHOM can issue preclusion be asserted?

Back 16

Against the person who was a party to Case 1 (or who was represented by a party) - req'd by DP.

Front 17

WHOM can ASSERT the issue preclusion

Back 17

Traditionally needed mutuality- by someone that was a party to Case 1

Modern: nonmutuality

Front 18

Nonmutual defensive Collateral Estoppel

Back 18

Asserted by D, D in case 2 who wasn't party to Case 1 is using it as a shield:

1) Same steps as RJ
2) Step 5: most cts today will allow Case 2 D who wasn't party to Case 2 to use IP against Case 1 party if Case 1 party had a full and fair opp to litigate in case 1.

Front 19

Nonmutual Offensive Collateral Estoppel

Back 19

Asserted by assholio P - P in case 2 who wasn't party to Case 1 is using it as a sword.

1) Same 4 steps
2) step 5: Most cts today would not allow but there is trend to allow, consider factors:

a) Case 1 party had full and fair opp to litigate in Case 1
b) Case 1 party could foresee mulitple suits
c) Case 2 P could not have been joined easily in Case 1

Front 20

SMJ

Back 20

Need:
1) Diversity, or
2) Federal Question

Front 21

Diversity of Citizenship requirements:

Back 21

1) action must be between "citizens of different states" AND

2) the amount in controversy must exceed $75K

*need COMPLETE diversity

Front 22

How do we determine a litigant's citizenship?

Back 22

A natural person who is a US citizen, citizenship is the state of her domicile - Domicile:

1) present in state (physical)
2) the subjective intent to make it her permanent home (mental)

*test for diversity when case is Filed.

Front 23

Corporations - citizenship is...

Back 23

1) state where incorporated AND
2) the one state where the corporation has its PPB

Front 24

Principal Place of Business - determination test:

Back 24

1) Nerve center (decisions made
2) Muscle center (where the corp does more stuff than anywhere else)

Front 25

How do we know what the amount in controversy is?

Back 25

Whatever the P claims in good faith is OK unless it is clear to a legal certainty that that she cannot recover more than $75K

*irrelevant as to what P wins; but if recovery is less than $75K may need to pay D's litigation costs.

*aggregating allowed

Front 26

P1 sues D for $70K, in the same case, P2 sues D for $6K, OK?

Back 26

NO - cannot aggregate these two claims b/c the case is not by a single P against a single D.

*joint tortfeasors - can claim $75.1 to each D

Front 27

Equitable relief to meet the controversy amount

Back 27

Two tests - when injunction would be allowed - either met:

1) P's viewpoint - does the blocked view decrease the value of P's property by more than $75K?

2) D's viewpoint: would it cost D more than $75K to comply w/ the injunction?

Front 28

What cases will the Fed court NOT hear, even if diversity requirements are met?

Back 28

1) Issuance of divorce
2) Alimony
3) child custody
4) Probate

Front 29

Federal Question cases

Back 29

Complaint must show a right or interest founded substantially on a federal law - the claim ARISES under federal law.

Front 30

Well-Pleaded complaint rule

Back 30

P's claim, properly pleaded, must arise under federal law. Properly pleaded means the complaint would set forth only a claim and nothing else. So in assessing whether there is a federal question jxn, the court ignores any extraneous stuff that has nothing to do w/ the claim itself

*IS P ENFORCING A FEDERAL RIGHT?

Front 31

Supplemental Jxn

Back 31

When case is already in federal court, additional claims that do not meet

TEST: the claim we want to get into F court must share a COMMON NUCLEUS OF OPERATIVE FACT w/ the claim that invoked federal smj. This test is always met by claims that arise from the same T/O as the underlying claim.

Front 32

What the limitations of Supplemental jxn?

Back 32

1) Cannot be used to overcome diversity cases.

2) can be utilized to bring in state claims under like FQ claims.

3) Can also be used to overcome amount in controversy

Front 33

Supplemental Jxn - so a non-federal, non-diversity claim can be heard in F court if it meets the test UNLESS it is:

Back 33

1) asserted by a P
2) in a diversity of citizenship (no FQ) case AND
3) would violate complete diversity

Front 34

Supplemental Jxn - Discretionary factors

Back 34

Court has discretion NOT to hear the supp claim: if the FQ is dismissed early in the proceedings; or if the state law claim is complex, OR state law issues would predominate

Front 35

Removal

Back 35

Allows Ds (only) to have case filed in state court "removed" (txf) to federal court. Removal is a one way street - it goes ONLY from a state trial court to a federal trial court. If improper, federal court can remand to state court.

Front 36

Test for Removal

Back 36

Generally - can remove if it can be heard in federal court (SMJ)

1) removed to the federal district embracing the state court in which the case was originally filed

2) must be removed no later than 30 days after service - or from the date that it was first made removal.

*ALL Ds must agree
*No removal allowed if any of the D is a citizen of the forum where the case was filed

Front 37

Removal Procedure - Fed.

Back 37

1) Rule 11 - attach all docs and file notice F court, then file copy in state court. No permission needed

2) Improper - P moves to remand - w/in 30 days of removal. IF no SMJ, can remand anytime.

Front 38

Erie Doctrine

Back 38

In diversity cases - F court must apply state substantive law.

Substantive:
1) elements of a claim or defense
2) statute of limitations
3) rules for tolling

*apply federal law, if there is a conflict.

Front 39

California - SMJ

Back 39

generally subject matter jxn - superior courts.

Use of different classifications

Front 40

What are the classifications for CA SMJ?

Back 40

1) Limited Civil cases - < 25K
2) Unlimited Civil Cases >25K
3) Small claims: individual: < 7.5K; entity: < 5K

Reclassified - automatically or on motion (notice/hearing)

*does not consider merits of the case
*can consider materials beyond the pleadings (arb. award, settlement conferences)
*aggregate - look at the entire case

Front 41

What are D's responses?

Back 41

1) by motion, or
2) by answer

*either w/in 20 days after service of process - or risk default

Front 42

What motions are made?

Back 42

Rule 12(b) defenses:
1) Lack SMJ
2) Lack of PJ
3) Improper Venue
4) Insufficiency of process (prob. w/ papers)
5) Insufficient service of process
6) Failure to state a claim
7) failure to join indispensable party

*can be raised by motion or answer

Front 43

Which 12(b) defenses are waivable?

Back 43

2,3,4,5 - must be asserted in the FIRST motion or answer or else they are deemed waived

Front 44

Answer - is a pleading

Back 44

1) within 20 days after service of process; but after Rule 12 motion, must serve answer w/in 10 days after the ruling

2) Respond to allegations of complaint (admit/deny/state that you lack sufficient info to admit or deny)

*failure to deny can constitute an admission

3) Raise affirm defenses. e.g. sol, sof, res judicata, self defense

Front 45

CA - D's response - Demurrers

Back 45

1) must be w/in 30 days after service of process

2) General Demurrer, like the 12(b)(6) motion to dismiss

a) lack of smj

3) Special demurrer - other defenses (rarely tested)

*terminology - motions are granted/denied; demurrers are sustained or overruled

Front 46

CA - D's response - Motion to quash service of summons

Back 46

1) Lack of PJ or improper process or improper service of process.

This motion MUST be made BEFORE or WITH a demurrer or a Motion to Strike, or else D waives these defenses.

Front 47

Forum non conveniens

Back 47

same in Fed and CA.

Permits a court to stay or dismiss an action if it finds that the action should be heard, in the interest of substantial justice, in a different state or county. Must show:

1) alt forum is suitable; and
2) private and public interest factors balance in favor of the alt forum.

Front 48

Motion to Strike - CA

Back 48

Before responding to a pleading, a party may move to have stricken any insufficient defense or any redundant, immaterial, or scandalous matter. (irrelevant, false, immaterial matter) - strike from complaint

Front 49

CA - Answer

Back 49

like the Fed - responds to allegations and raises affirmative defenses. Admitting/Denying/ or stating that lack information to admit or deny.

*affirm defenses - just sufficient facts.
*30 days after service of process
*if demurrers or motions fail, D must answer w/in 10 days after the ruling

Front 50

Counterclaims, when are they filed?

Back 50

w/ the D's answer

Front 51

What are the types of counterclaims, and explain

Back 51

1) Compulsory - arises from the same t/o as P's claim. MUST BE FILED IN THE PENDING CASE, OR IT'S WAIVED. The claim cannot be asserted in another action.

2) Permissive: does NOT arise from same T/O as P's claim. You may file it w/ your answer in this case or can assert it in a separate case.

Front 52

How is a counterclaim procedural brought in?

Back 52

Assess whether it invokes diversity or FQ jxn. If so, fed court is fine. It not, try supp jxn.

Front 53

What is the test for allowing supplemental claims

Back 53

The calim we want to get into F court must share a COMMON NUCLEUS OF OPERATIVE FACTS w/ the cl that invoked F SMJ. Uusally met by claims that arise from the same T/O as the underlying claim

Front 54

What is a limitation to using supp. jxn?

Back 54

the PLAINTIFF cannot use supp jxn to overcome a lack of div/

BUT - can be used to overcome lack of diversity in a FQ claim; and overcome amount in controversy

Front 55

What is a Cross Claim

Back 55

Claim against a Co-Party. MUST ARISE from the same T/O as the underlying action

Front 56

Relation Back Doctrine - To join a new claim after SOL

Back 56

Amendments after the SOL has run - relates back - to the original filing date, IF they concern the same conduct, T/O as the original pleading.

Front 57

Relation Back - to join a new party after SOL

Back 57

1.) party knew of action w/in 120 days of its filing; AND

2.) she also knew that , but for a mistake, she would have been named originally.

3.) concerns the same conduct, T/O as the original

Front 58

Who is a necessary party?

Back 58

An absentee who meets ANY of the tests:

1) w/out A, Court cannot accord complete relief (avoid multiple suits)

2.) A's interest may be harmed if he isn't joined; OR

3.) A claims an interest which subjects a party (usually D) to multiple obligations

*Feasible? (div/ personal jxn)

Front 59

Impleader

Back 59

Joining TPD - usually to owe indemnity or contribution to the defending party on the underlying claim.

*P can assert claim against TPD, and vice versa - so long as rising from the same T/O as the underlying case.

Front 60

CA; Claims by D - have different names, what are they?

Back 60

1) Cross-Complaint against P (i/o counterclaim) - same rules apply

2) Cross Complaint against co-party (i/o of impleader) same rules apply

3) Cross Complaint against TPD - same as F impleader, may be filed anytime before the court has set a trial date.

*each must respond w/in 30 days.

Front 61

Pleadings - F - what is required?

Back 61

Documents setting forth claims and defenses. F uses notice pleadings, just enough detail to allow the other side to be on notice and a make reasonable response.

Front 62

Rule 11

Back 62

Requires attorney (or pro se party) to sign all pleadings, written motions and papers (except discovery documents, which are treated by another rule).

Front 63

After signing the pleadings, what is person representing?

Back 63

That to the best of her knowledge and belief, AFTER REASONABLE INQUIRY:

1) the paper is not for an improper purpose

2) legal contentions are warranted by, and

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

Front 64

Rule 11 and safe harbor

Back 64

notice to court is not necessary, give the other party notice of Rule 11 violation, which gives a 21 day safe harbor time to correct the prob.

However, if the court by sua sponte raises the Rule 11 violation, no safe harbor.

Front 65

What is required in a complaint?

Back 65

1) state of the SMJ
2) short and plain statement of the claim, showing entitled to relief;
3) demand for judgment

*MUST plead facts supporting a plausible claim

Front 66

Special matters must be pleaded with...

Back 66

Particularity or Specificity: e.g. Fraud, mistake and special damages.

Front 67

CA - types of pleadings covered:

Back 67

1) complaint
2) Answer
3) Demurrer
4) various motions
5) Cross-complaint

Front 68

CA - needs what kind of pleading?

Back 68

A fact pleading i/o notice pleading - needs more detail in pleadings than F court.

*21 day safe harbor for Rule 11 (or the like) applicable when brought by other party OR by court.

Front 69

CA - Complaint need:

Back 69

1.) Statement of facts constituting a cause of action

2.) Demand for judgment for relief to which the pleader claims to be entitled.

Front 70

Must P in CA state the amount of damages?

Back 70

generally yes. exception:

1) wrongful death/ personal injury case

2) involving punitive damages

*D can ask for a Statement of Damages, must be provided w/in 15 days

Front 71

CA - what things must be pleaded w/ particularity:

Back 71

FRAUD, civil conspiracy, tortious breach of K, unfair business practices, product liability claims among mult Ds resulting from exposure to toxins.

Front 72

CA - when can fictitious Ds be used?

Back 72

If P is genuinely unaware of the id of a D, she may name the D as a "Doe" D. State that she is unaware of the D's true id and MUST STATE the COA against the Doe D. Not in F court.

Front 73

F - Class Action - what must be demonstrated initially

Back 73

1) Numerosity: too many class members for practicable joinder

2) Commonality: there are some questions of law or fact in common to class

3) Typicality: Rep's claims/defenses typical of the class; and

4) Representative is adequate - fairly and adequately rep cl

[No Common Type just Rare]

Front 74

F - Class Action - what are three types?

Back 74

1) Prejudice - class treatment necessary to avoid harm either to class members or to party opposing class. *depletion of funds leaving some w/out remedy

2) Injunction or declaratory judgment (not damages) sought b/c class was treated alike by other party

3) **Damages: (most likely on exam)
a) Common questions predominate over individual questions; AND
b) class action is the superior method to hand the dispute

Front 75

What are the court's duties in a class action suit? (F court)

Back 75

1) certify as a class action (at an early practicable time)

2) define the class and the class claims/issues/defenses

3) In type 3 action, must NOTIFY the class members, individually and reaosnably (rep pays)

Front 76

Who is bound by a class action judgment?

Back 76

All class members, except those that opted out in type 3 class.

Front 77

Does the court need to ask for feedback?

Back 77

yes - whether to settle or dismiss the case; in type 3, provide second chance to opt out.

Front 78

SMJ - in class action suits in federal courts - determined by:

Back 78

1) Arises under FQ, no prob
2) Diversity - look to the citizenship of rep. AND rep's claim exceed $75K

Front 79

CA - Class action requires

Back 79

when the question is one of a common or general interest, of many persons, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. Show:

1) Ascertainable class
2) well defined community of interest

Front 80

CA - what does a well defined community of interest consider?

Back 80

1) Common questions predominate

2) rep is adequate

3) class will result to a substantial benefit

Front 81

What are some distinctions between CA and Fed courts involving class action suits?

Back 81

CA:
1) no type of class action distinction

2) no individual notice req'd, can be by publication; court decides who will pay

3) all cl members who do not opt out are bound by the judgment

4) no need to appoint class counsel

5) settlement/dismissal must be approve by the court

6) Class members aggregate total amount of the members (limited/unlimited)

Front 82

Jury Trials - F court

Back 82

right only applies to civil cases, not equity cases

*is mixed issues - right to jury still allowed

*must demand in writing no later than 10 days after service

Front 83

Jury process in F Court - voir dire and peremptory - explain.

Back 83

1) Voir dire - unlimited strikes for cause (e.g. bias, prejudice, related to a party)

2) 3 peremptory strikes - must be used in a race and gender neutral way

Front 84

What is a Motion for judgment as a matter of law?

Back 84

aka JMOL/ directed verdict

Take the case away from the jury, usually motioned after the other side has been heard at trial.

1) D can move twice, close of P's evidence and at close of all evidence

2) P can bring once

Standard: reasonable people could not disagree on the result - there's only one way to conclude

Front 85

What is a Renewed motion for judgment as a matter of law?

Back 85

aka JNOV - same as JMOL essentially.

However, must have made a JMOL to preserve right to a JNOV. Motioned after the judgment rendered by a jury; move w/in 10 days.

Front 86

Motion for a new trial - when is it appropriate?

Back 86

1) Situation - some error at trial, move w/in 10 days

2) Grounds:
a) prejudicial (not harmless) error
b) new evidence that could not have been obtained w/ due diligence
c) prejudicial misconduct of party or att or 3rd party or juror

Front 87

Motion to set aside judgment - grounds and timing:

Back 87

1) Clerical error - anytime
2) Mistake, excusable neglect - reasonable time (1 year)
3) New evidence that could not have been discovered w/ due diligence - reasonable time
4) Judgment is void - reasonable time

Front 88

CA - if there are both legal and equity issues, what is tried first?

Back 88

Equity issues are tried first

Front 89

CA - jury selection distinctions

Back 89

1) each party (F- "side") is entitled to 6 peremptory challenges (as opposed to 3 in F); unlimited challenges for cause.

Peremptory challenges may NOT be based on race/color/religion/sex/national origin/ sexual orientation/ similar grounds

Front 90

CA - JMOL and JNOV

Back 90

1) JMOL - motion for directed verdict

2) JNOV - motion for judgment notwithstanding the verdict

*same as Fed. only different is that party making the motion need NOT be required to make the motion for d/v at trial.

Front 91

CA - Grant of new trial

Back 91

1) Basis: same as fed.
2) where the court concludes "that the error complained of has resulted in a miscarriage of justice"
3) Damages - shocks the conscience

Front 92

What is a remittitur?

Back 92

Court asks, after finding that the damage reward shocks the conscience - order new trial, or have P take a lesser figure i/o going through new trial. **allowed in both state and F

Front 93

What is an Additur?

Back 93

Where jury award is so low, and shocks the conscience; order new trial or additur; D the choice of paying a greater amount in damages or go through a new trial.
**ok in S but unconstitutional in F.

Front 94

CA - motion to set aside judgment - when?

Back 94

b/c of mistake, inadvertence, surprise, or excusable neglect.

Motion must include D's answer; accompanied by affidavit of fault by the party or lawyer demonstrating the mistake, inadvertence, surprise, or excusable neglect.

Time: reasonable time, not to exceed 6 months.