Introduction To California Law Chapter 12

Front 1

Steps in Civil Procedures before trial

Back 1

One party determines that a cause of action (COA) exists.
Proper court is chosen.
Plaintiff complaint and summons is issued by court.
Defendant is served with complaint and summons.
Defendant either defaults or files an appropriate response to complaint (General Denial, Answer, Demurrer, etc.)
Both sides prepare for trial, normally by conducting discovery.
Settlement negotiations and/or alternative dispute resolution options are explored, often several times during trial preparation, and parties report to the court periodically for “conferences”.
The trial date is set.

Front 2

Cause of Action

Back 2

A cause of action is a factual situation that entitles one person to obtain a remedy in court from another person.

Front 3

Original Jurisdiction

Back 3

Original Jurisdiction: is the power to first hear a case; court of original jurisdiction is where the trial takes place

Front 4

Jurisdiction

Back 4

Jurisdiction: is the power or authority to act in a certain situation; the power of a court to hear cases and render judgments

Front 5

Civil Pleadings

Back 5

Complaint
Answer
Counterclaim
Cross-Claim
Third-party Complaint

Front 6

Basic Components of a Civil Complaint

Back 6

1. the Caption
2. the Allegations
3. the Prayer
4. the Date & the Address, Telephone Number, and Signature of the attorney for the plaintiff

Front 7

Summons

Back 7

Summons: is one of the documents used to begin a legal action; it is served on the defendant and tells the defendant to appear in court and respond to the charge or risk a default.

Front 8

Answer: Civil case

Back 8

Answer: The most common response filed by a defendant is called an answer

Affirmative Defenses
General Denial
Specific Denial

Front 9

Affirmative Defenses

Back 9

Defenses raised by the defendant in the answer; reasons why the plaintiff should not recover even if all of the allegations of the complaint are true.

Front 10

General Denial

Back 10

A responsive pleading that denies each and every allegation contained in the complaint. Federal rules state that such a denial should be used only when the defendant is in fact denying all of the allegations in the complaint, including the allegation of jurisdiction of the court.

Front 11

Specific Denial

Back 11

A detailed or specific responsive pleading; it addresses each allegation by number. Any paragraph or allegation that is not specifically denied is deemed admitted.

Front 12

demurrer

Back 12

A pleading used in some states to challenge the legal sufficiency of the complaint. The legal basis for filing a demurrer is that the complaint fails to state a cause of action.Demurrer is prepared by defendant's attorney and filed and served like an answer. The defendant's attorney sets the case for a court hearing so that the judge can determine if the demurrer is valid or not.

Front 13

Pretrial Motions

Back 13

When there are procedural disputes between the parties requests to the court to solve the issues are pretrial motions. The party who makes the request or motion is known as the moving party.
Notice of Motion
Declaration in Support of Motion
Memorandum of Points and Authorities in Support of Motion
Prior to the Hearing the responding party is allowed to file opposing papers which normally consist of the following:
Declaration in Opposition to Motion
Memorandum of Points and Authorities in Opposition to Motion

Front 14

Discovery in a Civil trial, name 6 possible items involved in discovery.

Back 14

Interrogatories
Request for Admissions
Request to Produce or Inspect
Deposition
Request for Medical Examination
Disclosure

Front 15

Interrogatories

Back 15

Written requests for answers to questions, this discovery tool is used by the parties; written responses are required.

Front 16

Discovery

Back 16

Pretrial process of acquiring information.

Front 17

Request for Admissions

Back 17

A written request by one party to another to admit or deny the truth of a statement or the genuiness of a document.

Front 18

Request to produce or inspect

Back 18

A written request by one party to another to follow one side to see and copy documents or to physically inspect real or personal property that is relevant to the lawsuit.

Front 19

Deposition

Back 19

The testimony of a witness given under oath, outside the courtroom and taken before a court reporter, the deponent will be asked questions by the attorney who requested the deposition.

Front 20

Settlement

Back 20

A settlement occurs when the parties reach an agreement on some or all of the issues without actually going to trial.
The remaining unresolved issues are litigated or tried.
Compromise and release
A settlement agreement that ends the case.
Dismissal
With prejudice
Without prejudice; with leave to refile.

Front 21

Concurrent Jurisdiction

Back 21

The case can be brought either in federal court or in state court. Both federal court and the state court have jurisdiction over the subject matter. 'Where a court has concurrent jurisdiction the plaintiff chooses the court in which to initially file a complaint. However, if the case is filed in a state court the defendant has the right to ask the federal court to remove, or transfer the case to federal court.

Front 22

Subject Matter Jurisdiction

Back 22

Involves determining if a case belongs in federal or state court.

Front 23

In rem jurisdiction

Back 23

Jurisdiction based on personal property located within the state; any judgment is limited to an amount equal to the value of the property.

Front 24

What are the 3 steps to selecting proper Court

Back 24

1. Subject Matter jurisdiction: Choose federal court or state court, depending on nature of lawsuit.
2. Territorial or personal jurisdiction: Choose a federal or state court in a state where defendant resides or has sufficient contracts. Personal jurisdiction is based on the defendant's constititutional right to due process. Like all constitutional rights, the defendant can waive this right and agree that any court having subject matter jurisdiction can hear the case.
3. Venue: Choose a specific judicial district or county in the state.

Front 25

Venue

Back 25

The proper geographical court in which to file an action. Venue is important when it comes to the issue of jury pools and decisions that have been made in the courts recently, you are almost always researching decisions made etc.

Front 26

What are the four parts to a complaint?

Back 26

1. Caption
2. The allegations
3. The prayer
4.The date, and address telephone and signature of the attorney for plaintiff. If the factual claims are numerous, the complaint might be divided into different causes of action, or counts. The complaint is always filed with a summons serving the defendant telling him to appear in court on a certain day.

Front 27

Summons

Back 27

One of the documents used to begin a legal action; it is served on the defendant and tells the defendant to appear and respond to the charge or risk default. A term appear is used in the summons, but it does not mean appear in court, it means to file appropriate documents in the action.

Front 28

Default

Back 28

Failure to Appear. If a default is entered against the defendant the plaintiff becomes eligible for a default judgement.

Front 29

Rule 55 Default and Judgement

Back 29

Entering a Default. when a party against whom a judgement for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or others, the cleark must enter the party's default.

Front 30

Entering a Default Judgment

Back 30

This can happen two ways. 1. By the Clerk. If the plaintiff's claim is for a sum certain ro a sum that can be made certain by computation, the clerk, on the plaintiffs request, with an affidavit showing the amount due, must enter judgement for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.
2. By the Court. In all other cases the party must apply to the court for a default judgement.

Front 31

Service of process

Back 31

The actual process of giving the defendant a copy of the plaintiffs pleading. There is personal service and substituted service.

Front 32

Publication process serving

Back 32

Sometimes defendants cannot be located at all. This happens in cases where there are vegas weddings. When this is an option, the Court must first order that service by publication is allowed. After this is done, publication in a newspaper of general circulation.

Front 33

What or Who decides the time limit a defendant has to contest a lawsuit once he is served?

Back 33

Generally time limits are set by statute but may be extended by agreement of teh parties or by court order.

Front 34

Answer

Back 34

The most common response filed by a defendant in a civil case. In this pleading the defendant denies some or all of the allegations of the complaint. Additionally the defendant might set forth affirmative defenses. Once an answer is prepared, it is filed in court, like a complaint.

Front 35

Affirmative Defense

Back 35

In this pleading, the defendant denies some or all of the allegations of the complaint. Additionally, the defendant might admit to part of the allegations, but hen give some reason why the plaintiff is still not entitled to win.

Front 36

General Denial

Back 36

A responsive pleading that denies each and every allegation contained in the complaint. Federal Rules state that such a denial is only used when the defendant is denying each and every allegation.

Front 37

Specific Denial

Back 37

A detailed or specific response pleading; it addresses each allegation by number. Any paragraph or allegation that is not specifically denied is deemed admitted.

Front 38

Counterclaims, cross-claims, and third party actions

Back 38

A claim for damages, filed by the defendant against the plaintiff (counterclaim)a co- defendant (crossclaim)or a new party in the action.

Front 39

What are the 5 methods of discovery in a civl case?

Back 39

1. Interrogatories 2.Request for admissions 3.Requests to produce and or inspect. 4.Deposition 5.Requests for medical examination,

Front 40

Settlement

Back 40

When the parties agree on some or all of the issues without actually going to trial; if settlement is on some issues, the remaining issues are litigated or tried.

Front 41

Pre Trial Conference

Back 41

A meeting between attorneys and the judge that takes place before trial.

Front 42

counterclaim

Back 42

A pleading in which the defendant asks for damages or other relief from the plaintiff.

Front 43

cross claim

Back 43

A pleading in which the defendant asks for damages or other relief from a co-defendant, meaning another defendant.

Front 44

third party action

Back 44

A pleading in which the defendant asks for damages or other relief from a new party to the action.

Front 45

What does the caption in the complaint include?

Back 45

The names of the parties and description of the pleading.

Front 46

What does the defendant file after he receives the complaint and summons?

Back 46

The answer.