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18 Cards in this Set

  • Front
  • Back

Fact Pleading - Documents setting forth Claims and Defenses must:

(1) Allege the ultimate facts on each element of each cause of action


(2) Allow for meaningful response

Frivolous Litigation Requirements

Same as FRCP Rule 11

Frivolous Litigation - Sanctions - When Initiated

Sanctions can be Initiated


(1) Sua Sponte


(2) On Motion by Opposing Party


Frivolous Litigation - Sanctions - When court may order party or attorney to pay opposing party's expenses and attorneys fees:

(1) Bad Faith in Litigation


(2) Frivolous Tactics in Litigation



Can be Initiated:


(1) Sua Sponte


(2) Motion by Opposing Party


(3) No Safe Harbor

Requirements for a Complaint (v)

Complaint must Contain


(1) Fact Pleading Requirements


(2) Statement of Facts


(3) Statement of Whether this is a Limited Civil Case


(4) Statement of Damages


(5) Demand for Judgment

CA Pleadings - Special Matters that must be Pleaded with Reasonable Particularity

(1) Civil Conspiracy


(2) Tortious Breach of Contract


(3) Unfair Business Practices


(4) Products Liability Claims among multiple Defendants resulting from exposure to toxins

CA Pleadings - Rule for Fictitious Defendants

If P is unaware of a Defendant's identity, he may name the defendant as "Doe"

Defendant's Response to Pleading - Possible Responses (7)

(1) General Demurrer


(2) Special Demurrer


(3) Motion to Quash Service of Summons


(4) Motion for Inconvenient Forum


(5) Motion to Strike


(6) Answer


(7) D's Claim/Cross-Complaint

Defendant's Response - General Demurrer

Defined: pleading that acts like a motion by the D, asserting that P's complaint fails to state facts sufficient to constitute a cause of action



*Similar to 12(b)(6) - Failure to State a Claim


Defendant's Response - Special Demurrer

Pleading that Acts like a Motion by the D; asserts a defense (failure to join indispensible party, failure to make a definite statement, lack of legal capacity)



(1) Waived if not raised timely


(2) Not available in limited Civil Cases


Defendant's Response - Motion to Quash Service of Summons

Motion that Asserts Defenses of:


(1) Lack of PJ


(2) Insufficient Process


(3) Improper Service of Process

Defendant's Response - Motion for Inconvenient Forum

Waived if raised after Demurrer or Motion to Strike, May be Raised after Answer

Anti-SLAPP Motion to Strike

SLAP: Strategic Lawsuits Against Public Participation [ex. P sues D for act D took in furtherance of free speech right; D makes anti-slapp motion to strike]



Requirements:


(1) D: must show that P's COA arises from protected activity; then burden shifts


(2) P: must show probability of winning on the merits



D who wins anti-slapp suit can turn around and sue P for malicious prosecution

Defendant Claims - California Cross-Complaint

CA Cross Complaint = Federal Counterclaim, Crossclaim and Impleader

Defendant Claims - 3 Kinds of Cross-Complaints

(1) Cross-Complaint Against P


(2) Cross Complaint against Co-Defendant


(2) Cross-Complaint against Third Party

Right to Amend (Plaintiffs and Defendants)

Any party has a right to amend one time:


(1) Before D files answer or demurrer; OR


(2) After demurrer but before hearing on the issue of demurrer

CA - Right to Amend - Relation Back Rules

Requirements:


(1) Amended Pleading concerns same T/O as original pleading

CA - Right to Amend - Amending Pleadings to Substitute Named D for Fictitious D

Amended Pleading will relate back if


(1) Amended Pleading concerns same T/O as original pleading;


(2) The original complaint was filed before the SOL ran;


(3) Contained a charging allegation against "Doe"; and


(4) Substitution of named D for fictitious D is within 3 years of filing of original pleading