2) Pleadings, Service, Joinder

Question 1

pleadings: list

Answer 1

1) complaint
2) demurrer
3) answer
4) cross complaint

Question 2

pleadings: rule of contruction

Answer 2

all allegations/sts in pleading shall be construed liberally to achieve substantial justice

Question 3

pleadings: requirement

Answer 3

“fact pleading”: claimant must plead facts constituting a COA

Question 4

complaint/cross complaint must contain:

Answer 4

1) statement of facts supporting each element of each COA
2) demand for judgment for the relief sought
3) amount of $ demanded (exception)

Question 5

complaint/cross complaint must contain: damages: exception

Answer 5

in actions for PI or wrongful death, damages are quantified in separate statement of damages

Question 6

cross-complaint: def

Answer 6

like a counterlcaim or crossclaim. separate pleading

Question 7

cross-complaint: kinds

Answer 7

1) compulsory

2) permissible

Question 8

cross-complaint: compulsory: rule

Answer 8

D must allege any related claim in a cross-complaint.

If does not, will result in inability to file the claim in a separate lawsuit

Question 9

cross complaint: permissible: rule

Answer 9

2 kinds:

1) firing at another co-D: needs to be related to the initial T+O
2) firing back at the P: does not need to be related

Question 10

service: timing

Answer 10

1) nl case: w/in 3 years of filing cmplt

2) “fast track” cases: 60 days

Question 11

service: who

Answer 11

18+ and not a party to the action

Question 12

service: on ppl: ways

Answer 12

1) personal delivery
2) substituted service: leave copy at D’s dwelling, usu place of business, or usu mailing address (w a competent member of the household/place/etc) AND mail follow-up copy

Question 13

service: on corporations: ways

Answer 13

deliver copy to:

1) person designated by statute, or
2) president or other head or assistant

Substitute: leaving copy at company’s office during usu office hours, w someone who is apparently in charge

Question 14

service: by mail

Answer 14

can serve summons by mail, but only effective if D acks receipt

Question 15

service: outside state

Answer 15

can serve S+C on ppl outside CA in any manner provided for in-state service, OR by first class mail

Question 16

service: publiscation

Answer 16

ok serve by publication if appears to court that party can’t be notified in a better manner

Question 17

answer: must contain

Answer 17

1) general or specific denial of allegations

2) st of any ADs

Question 18

answer: affirmative relief?

Answer 18

no (contrast fed ct!) –> must be sought by means of cross-complaint

Question 19

answer: denials: kinds

Answer 19

1) general (deny everything)

2) wrt specific paragraphs. General denial impermissible if complaint is verified

Question 20

default judgment

Answer 20

reqs separate prove-up hearing first, using any evidence offered by P

Question 21

default: effect

Answer 21

terminates D’s opportunity to file a pleading

Question 22

default: can set aside if

Answer 22

D can show good cause for failure to rp

exs:

1) mistake
2) inadvertence
3) excusable neglect
4) surprise

Question 23

demurrer: dl

Answer 23

w/in 30 days

Question 24

demurrer: def

Answer 24

for failure to state a claim

Question 25

responding pleading: objections

Answer 25

can object in answer or demurer if:

1) pleading is uncertain
2) lack of capacity (of person who filed cmplt)
3) misjoinder of parties

Question 26

pleadings: amendments

Answer 26

liberally granted as justice requires

Question 27

mxn strike:

Answer 27

sua sponte or by motion

1) strike improper matter from pleading
2) strike improperly drawn matters (ex. punitive damages)

Question 28

anti-SLAP mxn: def

Answer 28

mxn to end a frivolous lawsuit, where D is being sued for speech.

Standard: suit will be dismissed unless court determines that P will probably previal (higher threshhold)

helps is more focused on the speech etc

Question 29

SLAPP back: def

Answer 29

suit used after you win mxn strike in anti-slapp suit (you have lawsuit dismissed then turn around and sue other person for wrongfully suing you)

Question 30

amendment of pleadings: 2 kinds

Answer 30

1) by right

2) discretion

Question 31

amendment of pleadings: by right: rule

Answer 31

1x before answer or demurrer filed

Question 32

amendment of pleadings: at court’s discretion

Answer 32

allowed later, liberally

Question 33

DOEs

Answer 33

P can list them but only if truly dnk the nme. When D’s true name is discovered cmplt must be amended

Question 34

relation-back: requirements

Answer 34

(to avoid SOL), amended cmplt must:

1) arise out of same T+O as orig cmplt
2) involve same general set of facts
3) refer to same offending conduct

Question 35

SOL: car accident or injury

Answer 35

time starts when wrongful act occurs

Question 36

SOL: delayed discovery rule

Answer 36

SOL starts when P discovers, or has reason to discvoer, the injury [when P at least suspects/has reason to, a factual basis for the coa re the D]

Question 37

joinder: 2 kinds

Answer 37

1) mandatory

2) permissive

Question 38

joinder: mandatory

Answer 38

must join person if:

1) subject to pj
2) presence won’t deprive court of smj
3) in his absence, complete relief cannot be granted

Question 39

joinder: mandatory: what if there’s a mandatory party who hasn’t been joined?

Answer 39

court will order them joined or determine whether ot continue in his absence or dismiss the suit

Question 40

joinder: permissive

Answer 40

multiple ppl can be joined in same action if same T+O and common questions of law or fact

Question 41

class actions: contrast w frcp

Answer 41

broader/less specific rules

Question 42

class actions: can certify when

Answer 42

1) q is one of common interest to many ppl, or

2) impracticable to bring all the actions separately

Question 43

interpleader: def

Answer 43

can file where stakeholder fears multiple or inconsistent liability

Question 44

intervention: def

Answer 44

3rd pary enters lawsuit on his own initiative

Question 45

intervention: kinds

Answer 45

1) as of right

2) permissive

Question 46

intervention: as of right: def

Answer 46

person claims interest in subject of lawsuit + would have interest impaired if left out –> mandatory intervention

Question 47

intervention: permissive: def

Answer 47

direct + immediate interest in litigation (narrower than frcp) + court’s permission

Question 48

impleader: def

Answer 48

used by D to force 3rd party into the lawsuit, to share or assume D’s liability

Question 49

frivolous pleading

Answer 49

judges may impose sanctions for frivolous or bad-faith pleading

Question 50

vexatious litigation

Answer 50

courts may enter order requiring vexatious litigator to get leave of court before permitted to file new claims in any CA court, if:

1) brought 5 failing cases in past 7 years or
2) enaged in repeated relitigation vs same D