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76 Cards in this Set
- Front
- Back
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What kind of reach do Long-Arm statutes typically provide? What about California?
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All have domicile, presence and consent
Some long arm statutes simply say they reach the constitutional limit. Such as **CA** |
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What is the basic Constitutional Analysis of In personam jurisdiction?
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Does the D have 'such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice?'
My Parents Frequently Forgot to Read Children's Stories Easy Cases (domiciled, presence, consent) |
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What is the contacts analysis of In personam jurisdiction?
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Some tie between D and the forum.
Two Factors to consider: The contact MUST result from PURPOSEFUL AVAILMENT (D's voluntary act, must reach out or direct activities in some way) i.e.. ship goods, use road, cause an effect FORESEEABILITY that D would get sued in this forum (but mere foreseeability is not enough) |
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What is the fairness analysis of In personam jurisdiction?
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Fair play and Substantial Justice
1. RELATEDNESS: between the contact and the claim, does claim arise from contact -Substantial ties (domiciled, continuous business, served)- lead to general jurisdiction 2. CONVENIENCE (severe disadvantage in the litigation - Hard to meet this standard) 3. STATE'S INTEREST (provide forum for its citizens) |
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How is Citizenship of Corporations for diversity determined?
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1. All states where incorporated
AND 2. the ONE state where the corporation has its principle place of business (PPB) i. Headquarters(nerve center) DEFAULT TEST OR ii. Where the corp. does MOST of production of service activity than anywhere else(muscle test) |
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How is Citizenship of Decedents, minors, and incompetents for diversity determined? For corporations in derivative suits?
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Look to their citizenship, not the citizenship of their representative. Corporations are realigned as defendants.
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What and How is the Amount in controversy for diversity determined?
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GOOD FAITH allegation that claim EXCEEDS $75,000.
P who recovers less than $75,000 may be liable to D for litigation costs (not att. fees) AGGREGATION allowed when case is a single P against a single D EQUITABLE RELIEF: P's viewpoint OR D's viewpoint injunction's value exceeds $75,000 EXCLUSIONS: divorce, alimony, child custody or probate |
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What is Federal Question jurisdiction?
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Claim arises under federal law
- Well-plead complaint: Fed Q based on complaint, NOT anticipated defenses |
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What is the Supplemental Jurisdiction Test?
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Test: Claim must share a 'common nucleus of operative fact' i.e. 'same transaction or occurrence' (T/O)
Court has discretion to decline where: (Not really tested) 1. FQ dismissed early 2. State law complex 3. State law issues predominate |
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What Limitations are there to Supplemental Jurisdiction?
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In Diversity Cases only:
Can't be used by P against impleaded or joined parties, compulsorily joined Ps, or intervening Ps. In a DIVERSITY case, PLAINTIFF cannot use supplemental jdx to overcome a lack of DIVERSITY, only to let <75k plaintiffs ride the coattail of at least one >75k plaintiff (there must be at least one) |
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What is Removal and what is the test?
And what is major exception? |
Allows Defendants (ONLY) to have case filed in state court 'removed' to fed court.
- One way only, remanded back if improper Test: If P could have originally filed case there Where: District Court within area of State Court When: No later than 30 days after SERVICE of the FIRST removable document. - All D's must agree Special rules for diversity cases: 1. No removal if any D is a citizen of the forum 2. No removal more than one year after case filed (even if D, a citizen of forum, is dropped) |
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Under erie, what laws are always substantive?
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1. Elements of claim or defense
2. Statute of limitations 3. Rules for tolling statutes of limitations 4. Choice of law |
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What do you do under Erie, if faced with a conflict between state and federal law?
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If it's a substantive issue, follow state law. If it's procedural and there is a federal law or rule on point, apply the federal law. But only use a Rule if it is truly on point and is valid under REA (Rule doesn't enlarge or abridge substantive rights, so far always the case).
If there's no federal law/rule, sometimes what appears to be procedural is really substantive. It might be necessary to use state law, therefore. Consider: 1. Outcome determinative: would applying or ignoring the state rule affect outcome of case? If so, choose state. 2. Balance of Interests: does either federal or state system have strong interest in having its rule applied? 3. Avoid Forum Shopping: will choosing federal cause parties to flock to federal court? If so, choose state. |
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What are the Classification of Cases in **CA**?
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Limited - Does NOT exceed $25,000, not including attorneys fees, interests, or costs. Appealable to Appellate Division of Superior Court only.
- Claimant is barred from reward of more than $25K Unlimited - Exceeds $25,000 Small Claims - $7,500 or less. Separate court, simple procedures. Appealable to Superior Court by D only. Entire Case is either 1 or the other. Aggregate all claims by 1P v. 1D |
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What are the Classification Procedures in **CA**?
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Plaintiff initially determines
Reclassification - If circumstances change the court can reclassify: - Automatically: If P amends complaint in a way that changes classification or D cross-complains seeking over $25,000 - On Motion: A party can move or court can initiate. Notice and hearing for all parties What does court look to in determining? Does not try the case, but can look to arbitration awards and settlement conferences Limited -> Unlimited - If there is a possibility it will exceed $25,000 Unlimited -> Limited - If it is NECESSARILY less than $25K or Virtually Unobtainable |
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How do you determine Venue - Both Federal and **CA**?
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1. Local actions: actions re ownership, possession or injury (including trespass) to land
Federal: the DISTRICT where the land lies **CA**: the COUNTY where the land lies 2a. Transitory Federal: (i) ALL D's reside (All D's in different districts of same state, P can lay in any district in which one resides) (ii) a substantial part of the claim arose (iii) diversity: where any D is subject to PJ; FQ: any D may be found 2b. Transitory **CA**: In a county where ANY defendant resides within case is filed. If no CA residents than ANY county 3. Contract Cases **CA**: ALSO County where K was entered into or performed 4. Wrongful Death **CA**: ALSO where the injury occurred |
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Where do D's reside for venue purposes - Both Fed and **CA**?
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Humans: domicile
Corporations: all districts where it is subject to personal jurisdiction when the case is filed **CA** Corporations: County of where PPB, Entered into K, or Breach occurred or liability arises. Unincorporated businesses: PPB if one file, otherwise county where any member resides. |
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How do you do a Transfer of venue, federal only? What are the restrictions? What will court weigh?
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Sending a case from one federal district to another.
If improper, can transfer or dismiss Can only transfer to a district where case could have been filed: Means (i) a proper venue which (ii) has personal jurisdiction over D (must be true without waiver by the D) Court discretion to transfer even if proper if convenience and interests of justice: 1. Public factors (what law applies, what community should be jury) 2. Private factors (where are the witnesses, evidence, etc?) NOTE: Court to which transferred applies choice of law rules from original court unless original court wasn't proper. -- Does not matter if will recover less -- Almost never granted if P is resident of the present forum |
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What is Forum Non Conviens? When is it possible, and how is it weighed?
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If there is a far more appropriate court elsewhere, may dismiss without prejudice.
- Transfer MUST be impossible (i.e. foreign country) Court will balance same Public and private factors as venue. 1. Public factors (what law applies, what community should be jury) 2. Private factors (where are the witnesses, evidence, etc?) -- Requires a very strong showing because dismissal -- Does not matter if will recover less -- Almost never granted if P is resident of the present forum |
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How do you do a Transfer of venue - **CA** only? What are the criteria?
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From a Court in one County to a Court in another County.
If the original venue is proper may transfer on motion if: 1. Impartial trial not available in this county; 2. Convenience of witnesses and justice; OR 3. No judge is qualified to act Transfer to a county in which BOTH parties AGREE. Otherwise court picks. The court will enforce a reasonable forum selection clause, but not a venue selection clause. |
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What are the requirements for Service of Process Procedure?
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Nonparty over the age of 18
In addition to personal jurisdiction, must give notice Deliver summons AND copy of the complaint Serve within 120 days of filing case or dismissed (unless good cause for delay). **CA** 3 years or 60 days under Fast Track. Court can dismiss if not served after 2 years or brought to trial within 5 years. |
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What are the forms of Service of Process in-state - Fed and **CA**?
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1)Personal service: Papers given to D personally anywhere in forum state
2)Substituted service: Given to another person at usual abode, suitable age and discretion -- **CA** Cannot use this method until reasonable diligence exercised first, must also mail copy to D. 3)Service on D's agent as long as within scope; corp: registered agent 4)State law: any method permitted by state law **CA** Allows publication, but not usually allowed 5)Waiver by mail: Process is mailed to D by first class mail, postage prepaid. Ok, if return waiver form in 30 days. Waives only formal service. If no waiver, may be forced to pay cost of service. **CA** 20 days only. 6) Immunity from Service: only in State to be witness or party in another civil case. **CA** NO immunity |
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What are Pleadings - Fed and **CA**?
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Documents setting forth claims and defenses.
Federal rules adopt 'notice' pleadings: - Only required to convey enough of one's contentions to put others on notice and to allow a meaningful response **CA** used 'fact pleading': Requires more detail |
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What is Rule 11? What does the signor attest to? What are the consequences of violation?
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Requires attorney (or party representing herself, called a pro se party) to sign all pleadings, written motions and papers (except discovery documents, which are treated by another rule)
Certifying that to the best of her knowledge and belief, after reasonable inquiry: (1) the paper is not for an improper purpose (2) the legal contentions are warranted by law (or nonfrivolous argument for law change) (3) that factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation). Motion for violation is served on other parties but is not immediately filed with court. Party allegedly violating Rule 11 has 21 days 'safe harbor' to withdraw the document or fix the problem. Court can raise Rule 11 sua spontae (on its own), but no 'safe harbor' then. **CA** also gives safe harbor in this case unless there is bad faith. Lawyer warrants no improper purpose, legal contentions non-frivolous, facts are or are likely to have evidentiary support. |
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What is the Complaint in federal court? What must it contain?
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Principal pleading by plaintiff. Filing commences an action.
Requirements: 1) SMJ - statement of subject matter jurisdiction; 2) CLAIM - short and plain statement of the claim, showing entitled to relief; 3) JUDGMENT - demand for judgment. (Even though courts tend to be more forgiving or lenient with pro se litigants, these requirements must be met.) Special matters that must be pleaded with particularity or specificity: fraud, mistake, and special damages. - Special damages do not normally flow from an event. |
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What is the Complaint **CA**? What must it contain?
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Filing commences an action.
Contents: 1. A statement of facts constituting the CAUSE OF ACTION 2. Demand for judgment 3. Generally need to state damages amount, EXCEPT: . .(i) No need in Personal Injury and Wrongful Death . .(ii) No need for punitive damages NOTE: However, even where damages need not be plead, D can request a damages statement which must provide with in 15 days. - Note no SMJ is needed in **CA** - Complaint must state if it is limited - **CA** allows fictitious defendants, Fed does NOT |
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What are the Motions in Response to Complaint, Rule 12, Federal?
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Motions are not pleadings; they are requests for a court order.
Issues of form: (1) 12(e) motion for more definite statement -- pleading so vague D cannot frame a response (rare) (2) 12(f) motion to strike, which is aimed at immaterial things, e.g., demand for jury when no right exists; any party can bring. Rule 12(b): 1) lack of subject matter jurisdiction - ANYTIME 2) lack of personal jurisdiction - WAIVABLE 3) improper venue - WAIVABLE 4) insufficiency of process - WAIVABLE 5) insufficient service of process - WAIVABLE 6) failure to state a claim; 7) failure to join indispensable party. These can be raised either by motion or by answer |
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What is a Demurrer - **CA**?
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General Demurrer - Fail to state facts sufficient to constitute a cause of action or lack of subject matter jurisdiction. Like 12(b)(6)
- Can be asserted in the answer Special Demurrer: (Unlikely to be tested on) 1) Uncertain, ambiguous or unintelligible. Similar to Rule 12(e) 2) Unclear about which theories of liability apply to whom 3) Lack legal capacity 4) Existence of another case between the same parties on the same COA 5) Defect or Misjoinder of parties 6) Failure to plead whether contract is oral or written 7) Failure to file a certificate - Can also be raised in answer. But must be raised or waived. |
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What are the Motions in Response to Complaint - **CA**?
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Motion to quash service of summons:
1) Lack of Personal JDX 2) Improper Process 3) Improper Service of Process - Made during a special appearance. MUST be made before a General Demurrer or Motion to Strike, or else waived. If denied, must appeal immediately, whereas Federal allows litigation to continue with loss of right to appeal later. Forum Non Conveniens: stay or dismiss an action that should be heard outside the state. Must show PJ and SOL there, as well as due process, impartial judiciary, and balance of private and public factors. Motion to Strike - Strike all or part of complaint as 'irrelevant, false, or improper matter' Anti-SLAPP - Motion to Strike |
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What are the Timing of the Answer - Fed and **CA**?
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Serve within 21 days after service of process if D makes no motions;
If D does make a Rule 12 motion, and it is denied, she must serve her answer within 14 days after court rules on motion. If D waives service, has 60 days from P's mailing of waiver form in which to answer. (Waiver of service does not waive personal jurisdiction or venue.) **CA** No later than 30 days after service of process. No later than 20 days if waive service. If demurrer or motion denied has 10 days. |
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What is the Answer - Fed and **CA**?
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1. Respond to allegations of complaint:
(i) admit (ii) deny (iii) state that you lack sufficient information to admit or deny; - # iii acts as a denial, but can't be used if the information is public knowledge or is in defendant's control. - Failure to deny can constitute an admission on any matter except damages. (iv) **CA** General Denial - Short document denying everything. Not possible if complaint is verified. 2. Raise affirmative defenses. statute of limitations, statute of frauds, res judicata, self-defense. - MUST PLEAD OR WAIVED |
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What are compulsory and permissive Counterclaims? What issues do they present?
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1. Compulsory: arises from the same T/O as P's claim.
- MUST BE FILED IN THE PENDING CASE, OR IT'S WAIVED. 2. Permissive: does not arise from same T/O as plaintiff's claim. - Does not have to be asserted in pending case; can sue in separate action. If a counterclaim is procedurally OK, then assess whether it has subject matter jurisdiction (diversity or FQ). - If not, can you get supplemental jurisdiction? (compulsory counterclaim always meets test) |
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What are Cross-claims?
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Offensive claims against a co-party.
- Claim must arise from the same T/O as the underlying action. - NEVER compulsory. SMJ: - FQ? Diversity? Supplemental should be possible. |
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Can you Amend the pleadings, Federal?
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PLAINTIFF has a right to amend once within 21 days of serving or 21 days after being served with responsive pleading or motion.
- If a claimant amends, D must respond within 10 days or remaining 21 days, whichever is longer DEFENDANT has a right to amend once within 21 days of serving his answer. If there's no right to amend, seek leave of court; it will be granted if 'justice so requires.' - Courts usually allow unless there's delay or prejudice. Variance: evidence at trial does not match what was plead (can move to amend the complaint to conform to the evidence) |
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What are the requirements to Amend after the statute of limitations has run - FED and **CA**?
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New Claim: can be added and relate back to date of original complaint if new claim concerns the same conduct, transaction or occurrence as the original pleading. (some courts say same accident and injuries and instrumentality).
Defendant can be added if... (Feds only?) 1. It concerns the same conduct, transaction or occurrence as the original; 2. The new party knew of the action, within 120 days of its filing; AND 3. She also knew that but for a mistake, she would have been named originally **CA** allows only typos to be fixed. Sometimes equitable estoppel allows correction of a mistake in naming a closely related entity. |
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How can you Amend the Pleadings and supply formerly unknown parties
- **CA**? |
PLAINTIFF has a right to amend anytime before D files an answer or demurrer, or after demurrer but before demurrer is tried.
If no right to amend, seek leave of court; it is usually granted unless 'Delay or Prejudice' Variance: Same as FED Relation back and Fictitious Defendants, OK if: 1. Original was before SoL and contained allegations against fictitious D 2. P was genuinely ignorant of the identity of Does 3. P pleaded that ignorance in original case. -- Must substitute within 3 years of filing |
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What are the requirements for Permissive Joinder?
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1. Proper D and P's (who may be joined)
- Arise from same T/O AND - Raise at least one common question of law or fact - But check subject matter or supplemental jurisdiction |
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When are Parties are necessary?
When can they joined? When are they indispensable? |
Necessary party if: (ANY)
1. INCOMPLETE - Without A, the court cannot accord complete relief; 2. HARMED - A's interest may be harmed if not joined (practical harm) (MOST LIKELY); OR 3. MULTIPLE - A claims an interest which subjects a party (usually D) to multiple obligations - Joint tortfeasors are not necessary Can be joined if: 1. There is personal jurisdiction 2. Joining him will not make it impossible to maintain diversity If party cannot be joined then: 1. Proceed without him 2. Dismiss the whole case(because indispensable party) Factors: (i) Is there an alternative forum available? (ii) what is the actual likelihood of prejudice? (iii) can court shape relief to avoid that prejudice? |
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What is Impleader?
And who can sue whom in that situation? When? |
A defendant party wants to add new third party defendant. The TPD may owe indemnity or contribution to the defending party on the underlying claim
Right to implead within 10 days after serving answer, after that, need court permission After TPD join, P can assert claim against TPD and TPD can assert claim against P if the claim arises from the same T/O as the underlying case - SMJ FQ, diversity and supplemental analysis apply. - P may not have SMJ over TPD even though TPD may assert claim against P. - Supplemental Limitation does not apply to TPD |
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What is Intervention?
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Absentee WANTS to join a suit:
Intervention as a right: A's interest may be harmed if she is not joined and not represented currently Permissive Intervention: A's claim of defense has at least one common Q. Or allowed by statute. **CA** permissive intervention also requires an interest that is "direct and immediate," not enlarging the issues, and with reasons that outweigh opposition. No supplemental JDX over intervenor's claim, if it lacks Diversity. |
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What are the Class Action Initial Requirements, Federal? Relating to representation?
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Must satisfy all of these
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: representative's claims/defenses typical of those of the class 4. Adequate representation: the class representative will fairly and adequately represent class |
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What are the Three types of Class Actions? Subject Matter.
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1. Prejudice: class treatment necessary to avoid risk of inconsistent results or impairment of interests of unnamed parties (individual suits depleting a fund)
2. Injunction or declaratory judgment (not damages) sought because class was treated alike by other party (employment discrimination) 3. Damages (requires opt-out notice, paid for by P) i. Common questions predominate over individual questions AND ii. Class action is the superior method to handle the dispute |
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What are**CA** Class Action Requirements? Representative
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1) Must show an ascertainable class; AND
2) A well defined community of interest . a) Common Questions predominate; . b) The representative is adequate; AND . c) The class will result in a benefit to the parties and the court (look to FRCP 23 for guidance) Court decides who bears the cost of notice. It may be done by publication where best notice is impractical. Agregate all class members damages to determine amount in controversy |
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What are the Required Disclosures in discovery? Must be made no matter what.
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Must be made even if no one asks for them:
1. Initial disclosures. Must identify persons and documents likely to have discoverable information that the disclosing party may use to support its claims or defenses, computation of damages and insurance for any of judgment. Within 14 days after 26(f) conference. 2. Experts. As directed by court, must identify experts 'who may be used at trial' and produce written report containing opinions, data used, qualifications, compensation for study, etc. 90 days before trial. 3. Pretrial. No later than 30 days before trial, must give detailed information about trial evidence, including documents and identity of witnesses to testify live or by deposition. **CA** no such requirements. |
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When can deposition be used at trial?
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For impeachment
Substantively if witness is unavailable (including great distance) Substantively if deponent is opposing party (admission) |
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What happens if answers to Interrogatories aren't known? What is the limit on Interrogatories?
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Can say you don't know the answer, but only after reasonable investigation; if the answer could be found in business records and it would be burdensome to find it, can allow access to those records.
Limits: Cannot serve more than 25 (including subparts) without court order or stipulation. - **CA** No limit on FORM interrogatories - **CA** No more than 35 of drafted interrogatories |
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What are Parties duties in supplementing discovery?
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Federal: There is a duty to supplement responses.
- **CA** there is no duty to supplement discovery. But opposing party can propound supplemental interrogatories twice before date of trial is set. |
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What is special about **CA** LIMITED cases?
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Limited Discovery:
Depositions: 1 ONLY Interrogatories (including by form), inspection demands, and requests for admission: Combined total of 35. No Special Demurrers No injunctive relief |
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What is the Substantive scope of discovery Fed and **CA**?
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1. Standard. Can discover anything 'relevant to a claim or defense.'
- reasonably calculated to lead to the discovery of admissible evidence - not privileged - For good cause, the court can expand discovery to 'relevant to the subject matter of the case.' - **CA** always at the broader 'relevant to subject matter' standard 2. Privileged matter not discoverable - **CA** Privilege must be identified with particularity - **CA** Party may request simultaneous exchange of expert information |
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What is Work Product Fed and **CA**?
And when is it discoverable? |
Work product of lawyers and OTHERS in anticipation of litigation is discoverable only if:
1) upon showing substantial need; AND 2) avoid undue hardship EXCEPTION: Party can obtain any time a copy of his own statement. **CA** Only work product produced BY ATTORNEY is protected. Qualified privilege gives way to "unfair prejudice in preparing claim or defense." There is also a privacy consideration in constitution, check: 1) is there a legitimate privacy interest; 2) a reasonable expectation of privacy; 3) a serious invasion. If so, balance needs. Absolute protection to lawyer's own mental impressions, opinions, conclusions, theories |
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What are Sanctions against a Party for failure to comply with discovery?
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First, get a motion to compel (further) discovery. Then court can order it treated as admitted, prohibit support or opposition to certain claims, strike pleadings, dismiss action, render default judgment, hold in contempt.
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What are the rules for Voluntary Dismissal?
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Without prejudice as matter of right once only, must be before D files answer or summary judgment motion or by stipulation. Otherwise, leave required. **CA** before a dispositive ruling on issue of law or fact or start of trial.
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What are the reasons for a Involuntary Dismissal Fed and **CA**?
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All courts have authority to dismiss for various reason, such as not following procedure.
**CA** Mandatory Dismissal 1) Not brought to trial within 5 years of filing 2) Process is not served within 3 years after filing. |
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What is a Summary Judgment?
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Moving party must show:
1) there's no genuine dispute as to material issue of fact; AND 2) that he is entitled to judgment as a matter of law. Court generally views the evidence in the light most favorable to the nonmoving party. Must support with affidavits, discovery, admissions, but Federal allows defendant to rest on argument. In **CA** is required a statement of all undisputed material facts. |
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What is a Rule 26(f) Conference?
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Unless court order says otherwise, at least 21 days before scheduling conference (or scheduling order is due), parties discuss claims, defenses and settlement. Must form discovery plan and present it to court in writing within 14 days.
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What rights exist to a Jury Trial?
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FEDERAL
Right: Seventh Amendment right to jury in 'civil actions at law' but not in suits at equity. If both, usually the court will try the jury issues first. Demand: Must demand in writing no later than 14 days after service of the last pleading raising jury triable issue. UNANIMOUS unless otherwise stipulated. 6-12. **CA** Right: Largely the same as federal courts. HOWEVER: Equity cases are tried first, EQUITABLE CLEAN UP DOCTRINE if majority if case is equity then may not get a jury Demand: 5 days after notice of trial date Voir Dire: Each PARTY is entitled to SIX peremptory strikes. VERDICT 9/12. 12 is standard but fewer are permitted. |
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What is a Motion for judgment as a matter of law - Fed and **CA**?
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**CA** Called Nonsuit if after plaintiff's presentation, directed verdict at end of case.
Standard: Reasonable people could not disagree on the result. - Evidence viewed in light most favorable to motion's opponent |
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What is the standard for a Renewed motion for judgment as a matter of law (judgment notwithstanding the verdict (JNOV)?
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**CA** called judgment not withstanding the verdict
Standard: same as with motion for judgment as a matter of law. REQUIREMENT: Must move for a judgment as a Matter of Law before jury deliberates. **CA** That's not required. |
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What are the criteria for granting a Motion for a new trial?
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Make motion after verdict:
Grounds: (i) prejudicial (not harmless) error at trial makes judgment unfair (e.g., wrong jury instruction; evidentiary ruling); (ii) new evidence that could not have been obtained with due diligence for the original trial; (iii) prejudicial misconduct of party or attorney or third party or juror (e.g., juror conducted independent investigation of accident); (iv) judgment is against the weight of the evidence (serious error of judgment by jury). Note: grant of new trial is less radical than grant of renewed motion for judgment as a matter of law. |
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What are Remittitur and Additur **CA**?
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Court Can offer a New trial or a:
1) If P won but too much, Remittitur - offer less, take it or forced to go through another trial 2) If P won but too little, Additur - Offer P more, D can pay it or be forced to go to a new trial. Available only in **CA**. |
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When is Interlocutory (non-final) review available?
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These might be appealed even though not final judgments. (Little Tested)
1. Interlocutory orders reviewable as of right: orders granting, modifying, refusing, etc. injunctions; appointing, refusing to appoint receivers; findings of patent infringement where only an accounting is left to be accomplished by trial court; orders affecting possession of property, e.g., attachments. In **CA**, quashing service of summons, grant of new trial, denial of MNOV 2. Interlocutory Appeals Act. Allows appeal of nonfinal order if trial judge certifies that it involves a controlling issue of law as to which there is substantial ground for difference of opinion and the court of appeals agrees to hear it. 3. Collateral order exception. Appellate court has discretion to hear ruling on an issue if it (a) is distinct from the merits of the case, (b) involves an important legal question, and (c) is essentially unreviewable if parties must await a final judgment (e.g., claim of immunity from suit, such as a state's claim of Eleventh Amendment immunity from suit for damages). **CA** says it must direct payment of money. 4. When more than one claim is presented in a case (e.g., claim and counterclaim), or when there are multiple parties, the trial court may expressly direct entry of a final judgment as to one or more of them if it makes an express finding that there is no just reason for delay. Then it can be appealed. In **CA** a judgment against one of several parties is final and appealable (but not a judgment on fewer than all causes of action). 5. Extraordinary writ. Not technically an appeal, but an original proceeding in appellate court to compel the trial judge to make or vacate a particular order. Not a substitute for appeal; available only to enforce a clear legal duty when there is no speedy adequate remedy and irreparable harm. 6. Class action. Court of appeals has discretion to review order granting or denying certification of class action. Must seek review within 10 days of order. Appeal does not stay proceedings at trial court unless trial judge or court of appeals so orders. In **CA**, denial of class certification is immediately appealable, but not grant. Feds allow appeal only at court's discretion. |
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Which court systems laws apply regarding Claim and Issue Preclusion?
Is a case on appeal entitled to claim or issue preclusion effect? |
Case 1 determines the rules.
Federal cases on appeal still can be used for issue or claim preclusion, and their judgments are enforceable. **CA** No must be final final to be used for preclusion or to be enforced. |
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What is Res Judicata?
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PFC:
PARTIES are identical Final judgment on merits on same cause of action in case 1 (in **CA** not final until after all appeals) CLAIM was already litigated or could have been - Feds define claim transactionally: a claim is any right to relief arising from a transaction or occurrence. **CA** there are separate claims for property damage and for personal injuries, though, because those are different PRIMARY RIGHTS. Use state law for diversity actions. |
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What is Collateral Estoppel?
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This precludes relitigation of a particular issue litigated and determined before. Requirements:
IPAWN: Identical issues Party to be estopped from first case Actual litigation of the issue in Case 1 or Waiver of full and fair opportunity to do so Necessity of issue to the judgment in Case 1. |
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By whom can collateral estoppel be asserted?
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Traditional view (mutuality): only by one who was a party to Case 1.
- Not a requirement of due process, SOME COURTS HAVE REJECTED IT 'NONMUTUAL' : Used by one who was not a party in Case 1. If used defensively, commonly okay. If used offensively, must consider: was it reasonable for P to have held back from the original suit, was it foreseeable to D that he might be subject to multiple attacks, |
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What is California's conflict of laws approach for tort and contract actions?
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Tort:
If not identical, do both have interests? If so, weigh the comparative impairment to each law were it ignored. Contract: Is there substantial enough relationship to a state to honor the choice-of-law made in the contract? If not, use tort test. If so, does the chosen state's law conflict with a fundamental California policy? If so, weigh the interests of the states. |
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What is the Multiparty, Multiform Trial Jurisdiction Act?
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Where at least 75 people die from a single accident, only minimal diversity is required. Also there must be either one D in different state from accident, 2 Ds in different states, or accident taken place in different states.
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When can process be served out-of-state? (Federal and CA)?
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FEDERAL:
Under state's rules Third-party Defendants or parties required to be joined under Rule 19 if served within 100 miles of courthyouse Statute Interpleader FQ: Over a D who can't be served in any particular state but has overall contacts with U.S. CALIFORNIA 1st class mail requiring return receipt, plus satisfaction of PJ by statute and Constitution |
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What is the Anti-SLAPP motion?
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Made when sues D for an act D took in furtherance of her free speech rights.
Shifts burden to P to show probability of winning on merits. Stays discovery meanwhile. Can't be used when P is acting to vindicate a public interest and has nothing privately to gain, nor when D is a businessman speaking about business. Prevailing D can bring a SLAPP-back motion for malicious prosecution. |
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What are the diversity requirements for a federal class action in diversity?
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Only named representatives need diversity. At least one must exceed $75k, though others can get supp jx if they don't break diversity.
CAFA allows suit to go on minimal diversity if the sum of claims exceeds $5M and at least 100 members. Individual claim amounts are irrelevant. It only takes 1 defendant (not all) to remove to federal court. (n/a for state/gov. defendants, securities laws, corporate affairs). Too much affiliation with the single state will require the federal court to decline CAFA jx. |
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What are the discovery obligations regarding experts?
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Testifying experts must be disclosed and subject to opposing deposition
Consulting experts may be discovered only if opposing party shows other means are impractical. **CA** They need not be disclosed. Non-retained experts are undiscoverable. |
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Is arbitration voluntary, appealable?
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Arbitration may be contractual or judicially imposed. There is a strong policy in favor of it.
Federal: It is voluntary and can be overturned if there is a manifest disregard of the law (very deferential standard) **CA**: It is required in unlimited cases <50,000 and is usually not reviewable even for blatant errors. Fraud and bias always trigger review, and equitable relief, family matters, UD are generally exempt from mandatory arbitration. |
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How do Discovery Requests differ from Federal to California in number and prerequisites?
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Inspection: Unlimited
Deposition: Federals 10. **CA** Unlimited or one. Health exam: Federal requires court order. Not entitled to have lawyer present. **CA** requires attorney only for mental exam. Right to lawyer at physical, sometimes mental. Requests for Admission: Federal allows unlimited for any purpose and automatically deemed admitted if not answered. **CA** allows 35 factuals and unlimited admissions of genuineness of documents -- requires a motion to deem unanswered as admitted. |
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What kinds of jury misconduct are admissible?
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Federal: Extraneous prejudicial information or outside influence improperly brought to jury's attention.
**CA**: broader: refusal to follow instructions, outside evidence, inattentiveness, performance of experiments |
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Who gets costs and attorney fees?
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COSTS
Fed: Court has discretion **CA**: Prevailing party (in a tie, D) ATTORNEY FEES Fed: **CA**: Each party bears unless contract or statute says otherwise. Private Attorney General statute gives fees to one who confers significant benefit on large class of people (needn't prevail if serves as catalyst motivating D to modify behavior). One-way fee provisions get interpreted as award to prevailing party. Also equitable exceptions such as class action suit that preserves a common fund or insurer who refuses to pay in bad faith. Federal: No attorney general statute, must be a true winner and have a specific statute authorizing fees. |
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What is the precedential value of California Appeals decisions?
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A Court of Appeals binds all courts throughout the state. If there's a split, superior courts are free to choose which to follow. Panels of Court of Appeals are not bound by other panels' decisions, even from same district.
**CA** courts are not bound by federal courts other than SCOTUS, and the 9th Circuit is no more persuasive than any other. |
