Bar - Civ Pro Flashcards

Question 1

Q

Recap of Main Issues

Answer

A

First Issues
- Personal Jurisdiction
- Subject Matter Jurisdiction
- Supplemental Jurisdiction
- Removal and Remand
- Venue and Transfer of Venue
- Notice
- Choice of Law

Pretrial Procedures
- Pleadings
- Joinder of Parties
- Joinder of Claims
- Class Action
- Discovery
Disposition without Trial
- Dismissal/default
- Motion for Summary Judgment (MSJ)
Trial
- Right to a jury
- Judgment as a matter of law (JMOL)
(Directed Verdict in California
Post Trial)
- Renewed JMOL
o JNOV in California
- New trial
- Motion to set aside judgment
- Remittitur/additur
Appeals
- Final Judgment Rule (FJR)
Use of Final Judgment
- Claim preclusion (res judicata)
- Issue preclusion (issue preclusion)

Question 2

Q

For a court to hear a case, what 4 things need to be in place?

Answer

A

(1) Court has personal jurisdiction over the defendant;
2) Court has subject matter jurisdiction over the matter;
(3) Venue is proper; AND
(4) D has notice of the suit.

Question 3

Q

What are the 3 types of personal jurisdiction over a defendant?

Answer

A

(1) In personam
(2) In rem jurisdiction
(3) Quasi in rem jurisdiction

Question 4

Q

What is in personam personal jurisdiction?

Answer

A

Forum has personal jurisdiction over the defendant.

Question 5

Q

What is in rem jurisdiction?

Answer

A

Court has power to adjudicate the rights of people all over the world to a piece of property

Examples:
o Actions for condemnation (eminent domain cases)
o Forfeiture of property to the state (e.g., when property used for unlawful housing of narcotics)
o Settlement of decedent’s estate

Question 6

Q

What are the two types of Quasi in Rem jurisdiction?

Answer

A

Type 1 – court has power to determine whether certain individuals own a piece of property; court not permitted to determine rights of people across the world
Type 2 – court adjudicates disputes other than ownership based on the presence of the defendant’s property in the forum
Note
For Quasi In Rem jurisdiction, the court has power over the property but the judgment does not bind the defendant personally and cannot be enforced against any other property belonging to the defendant.

Question 7

Q

What are the 4 bases to satisfy personal jurisdiction?

Answer

A

(1) D is domiciled in the forum state
(2) D is present in the forum state and served with process (unless by force/fraud or summons for another case)
(3) D consents to or waives personal Jx (e.g., appears in court to respond to complaint)
(4) State long arm statute and minimum contacts between the defendant and the forum state.

Question 8

Q

How is an individual’s domicile defined?

Answer

A

(1) State in which one is physically present; AND
(2) Subjective intent to remain.

Question 9

Q

What are the two steps in a modern personal jurisdiction analysis?

Answer

A

(1) Statutory analysis
(2) Constitutionality analysis

Question 10

Q

What is the question asked in the statutory analysis?

Answer

A

Whether there is the existence of a long arm statute

Note: Sample Long Arm Statute
 Language: “State X may exercise Jx on any basis not inconsistent with the Constitution of the U.S.”

Conclusion: The statute reaches the Constitutional limit.

Question 11

Q

What is the question asked in the constitutionary analysis?

Answer

A

Whether defendant has sufficient minimum contacts such that jurisdiction does not offend traditional notions of fair play and justice

Question 12

Q

What are the 3 main requirements to the constitutionality analysis?

Answer

A

(1) Contacts between D and the forum state;
(2) Relatedness; AND
(3) Fairness

Question 13

Q

In the first prong on contacts, what are the 2 required elements and define them each.

Answer

A

(1) Purposeful availment, where D receives benefits in the forum state; AND
(2) Foreseeability of suit.

Note:
D can purposefully avail without setting foot in the forum (e.g., marketing a product in the forum, sending a tortious email in the forum, traveling through the forum, maintaining an interactive website in the forum)
* If active website (e.g., make hotel reservation) enough for PJ
* If passive website (e.g., only gives hotel info) not enough for PJ
- ARGUE BOTH SIDES ON EXAM

Question 14

Q

On the relatedness prong, what question are we asking? What are the two things to show to establish general jurisdiction?

Answer

A

Whether D’s contacts with the forum state relate to the P’s cause of action?

If yes: Specific jurisdiction, skip to reasonableness

If no: Need general jurisdiction .
D must be:
 (1) “At home” or registered to do business in the forum state; OR
 (2) Be served with process in the forum state.

Individuals at home in state of domicile
Corporations at home in every state of incorporation and PPB

Example for individual
 Example: I live in CA. I can be sued in CA for a claim that arises anywhere in the world, including Antarctica.
 Example: I am from CA, but I travel to OK, and am served with process for a lawsuit in OK. OK has personal Jx over me.

Question 15

Q

What are the 3 factors analyzed under Fairness and only for specific jurisdiction (step 3)?

Answer

A

(1) Burden on the defendant and his witnesses
o E.g., cost for them to travel to forum state this is not enough. D must show “grave inconvenience”
o Note: relative wealth of P and D is not determinative

(2) State’s interest
o Mention state will want to protect its citizens and offer them a courtroom

(3) Plaintiff’s interest in being in forum state
o E.g., P injured and can’t travel to other state

Question 16

Q

Exam Tips - Personal Jurisdiction

Answer

A

California State Courts—Personal Jurisdiction
- This is assessed the same exact way personal jurisdiction is assessed in federal court.

Minimum contacts fact triggers
 Advertise or solicit business in a state
 Distributor or salesperson for product in a state
 Small retail store near state border
 Awareness that product is being used in a state
 Driving through a state on the way to another state
 Housing state X prisoners in state Y

Note: Personal Jx is frequently tested. If time permits, analyze the traditional bases of jurisdiction, but typically these bases will not be satisfied, and a full-fact intensive minimum contacts analysis will be required

Question 17

Q

What is the general rule on subject matter jurisdiction?

Answer

A

A federal court has subject matter jurisdiction if the case involves a federal question or diversity jurisdiction. Subject matter jurisdiction cannot be waived.

Question 18

Q

When does a federal court have federal jurisdiction? 2 requirements

Answer

A

Rule: A federal court has federal question jurisdiction if:
(1) The claim arises from federal law; AND
(2) Determined by a well-pleaded complaint.

Note: D’s defenses do not matter.
Note: There is no amount in controversy requirement in federal question cases, with the narrow exception for cases brought against defendants other than the United States, its agencies, or employees under section 23(a) of the Consumer Product Safety Act.

Question 19

Q

What is the general rule on diversity jurisdiction?

Answer

A

Federal courts have diversity jurisdiction where there is complete diversity of citizenship between the parties, and the amount in controversy exceeds $75K, exclusive of interest and costs and counterclaims.

Note: Attorneys’ fees and interest that are recoverable by statute or as part of claim are included

Question 20

Q

What are the 4 groups that fulfill complete diversity of citizenship? Between who and who?

Answer

A

(1) Citizens of different states
(2) Citizens of a state AND citizens of a foreign country except when greencard holder
(3) Citizens of different states AND in which citizens of foreign countries are additional parties
(4) A foreign country as plaintiff and citizens of a state

o (1) citizens of different States
 Example: P (Florida) v. D (New York)

o (2) citizens of a State and citizens of a foreign country
 Exception
* When the citizens of the foreign country have permanent residence in the same State as P
 Example: P (Florida) v. D (France) OK
 Example: P (Spain) v. D (California)  OK
 But not: P (Florida) v. D (France citizen, resides in FL)
 NOTE: If a P lives abroad, but is a U.S. citizen, they are NOT a citizen of a U.S. state.

o (3) citizens of different States and in which citizens of foreign countries are additional parties
 Examples: P (Florida) and P (Germany) v. D (New York) and D (Canada)

o (4) a foreign country as plaintiff and citizens of a state (or different states)
 Example: P (Turkey) v. D (California)

Question 21

Q

How is one’s citizenship determined?

Answer

A

Same as domicile

(1) State in which one is physically present; AND
(2) The subjective intent to remain.
 Note: Each person can only have one domicile at a time.
 Note: If you are driving from Ohio to move to Florida and get in accident, you do not yet have physical presence in Florida so your domicile is still Ohio.

Question 22

Q

How is a corporation’s citizenship determined?

Answer

A

Rule: A corporation is a citizen of the state of incorporation and the state where it has its principal place of business.
Note: A corporation may be the citizen of more than one state.
Note: Company can also be citizen of another country.

Question 23

Q

How is the principal place of business defined?

Answer

A

o PPB is where the corporation’s officers direct, coordinate, and control the business
o Note: “nerve center test”; e.g., HQ

Question 24

Q

How is citizenship determined for unincorporated associations and partnerships?

Answer

A

Rule: The citizenship of an unincorporated association is determined by the citizenship of all of its members.
o Note: An unincorporated association can be a citizen of all 50 U.S. states at one time.
Note: includes where both general and limited partners reside

Question 25

Q

What is the citizenship of minors, incompetents, and decedents?

Answer

A

Rule: The citizenship of minors, decedents, and incompetents is determined by their OWN citizenship and NOT that of their representative.

Question 26

Q

How is the citizenship of the legal rep of a decedent’s estate treated?

Answer

A

Rule: A legal representative of a decedent assumes the state citizenship of the decedent.

Question 27

Q

How is the citizenship for a class action determined?

Answer

A

Rule: Class action citizenship is that of the named representative.

Question 28

Q

How do you treat a situation of aliens against aliens?

Answer

A

 Rule: There is NO federal jurisdiction for an action by an alien against another alien UNLESS there are U.S. citizens on both sides of the controversy.

Question 29

Q

What are the rules regarding the Amount in Controversy for diversity cases?

Answer

A

The amount in controversy must exceed $75K at the time of the filing, excluding attorney’s fees.
 Sub-Rule: Good faith allegation by P usually controls unless to a legal certainty $75K is not possible.
 Note: P sues for $10K for compensatory damages in breach of contract and $80K in punitive damages. We know no punitive damages in breach of contract, so diversity Jx not fulfilled.
o Note: If P recovers less than $75K, he may have to pay D’s litigation costs. But general rule is that what the P actually wins is irrelevant.

Question 30

Q

What are the 3 ways a plaintiff can meet the AIC?

Answer

A

(1) 1 P may aggregate claims against 1 D
o Note: Claims do not have to be related.
o Note: If P1 sues D for $50K and P2 sues D for $50K, this does not work.

(2) P may aggregate claims against joint tortfeasors on a joint liability claim

(3) Several Ps may aggregate claims against one D only if seeking to enforce a single title or right (common, undivided interest)
Note: General rule is that multiple Ps cannot aggregate

Question 31

Q

How is the amount in controversy determined for equitable relief cases?

Answer

A

 Rule: The amount in controversy is determined by the value of relief to the plaintiff OR costs to the defendant.
* Example: If costs $90K for D to comply with injunction, amount is satisfied. If P’s house value would increase by $100K if injunction enforced, amount is satisfied.

Question 32

Q

What are the 4 types of cases in which under no condition will a federal court hear the case?

Answer

A

(1) Divorce
(2) Alimony
(3) Child support
(4) Probate of an estate.
 NOTE: This is NOT the same as saying ‘federal court doesn’t hear family cases.’ Child suing parent for abuse could be heard in family court.

Question 33

Q

Define concurrent jurisdiction.

Answer

A

 Rule: The federal courts and the state courts have concurrent jurisdiction over most types of actions.

Question 34

Q

What are the 3 areas where the federal court has exclusive jurisdiction?

Answer

A

(1) Bankruptcy cases
(2) Patent and copyright cases
(3) Antitrust cases

Question 35

Q

What kind of jurisdiction do CA courts have and define it.

Answer

A

 Rule: California state courts have general subject matter jurisdiction, which means it can hear any civil case not exclusively granted to another judicial system. This includes most cases arising under federal law.

Question 36

Q

What are the 3 classifications of civil suits in CA Superior Court?

Answer

A

(1) Limited civil cases
(2) Unlimited civil cases
(3) Small claims

Question 37

Q

Discuss limited civil cases and the main distinction.

Answer

A

o (1) Limited civil cases
 Heard in Superior Court
 Require AIC equal to $25K or less
 Limited discovery; cannot file special demurrer
 Claimant cannot get a permanent injunction or declaratory judgment or determine title to land
 Expedited jury trial
 Biggest limitation: Claimant cannot recover more than $25K.
 P must note classification on filing.

Question 38

Q

Discuss unlimited civil cases and the main distinction.

Answer

A

 Heard in Superior Court
 Require AIC exceeding $25K or seeking general equitable relief (e.g., permanent injunction or declaratory judgment)
* Includes suing to determine title to land
 No limitations on pleadings, discovery, or relief available
 Claimant can recover any amount
 P does not need to note classification on filing.

Question 39

Q

Discuss the two distinctions for small claims.

Answer

A

 Heard in CA Superior Court—Small Claims Division
 If P is an individual, claim is $10K or less
 If P is a business, claim is $5K or less

Question 40

Q

Listen to classification and reclassification points in Superior Court.

Answer

A

 Classification and Reclassification Points
* Plaintiff usually determines classification through AIC
o Note: If P has $10K and D has $100K counterclaim, case will get reclassified as unlimited, because the cross complaint has an AIC over $25K.
* Reclassification
o 2 ways to reclassify a case
 (1) Automatically by changing dollar amount in claim
 (2) Motion, notice, hearing
o Note: Court will not consider the merits of the claims in considering reclassification, but may look beyond the pleadings, and must consider a judicial arbitration award.
o Reclassify from unlimited to limited. Judge must find that the case either:
 (1) Will necessarily result in a verdict of $25K; OR
 (2) That reaching more than $25K is not possible.
o Reclassify from limited to unlimited. Judge must find that there is a possibility that the verdict would exceed $25K.

Question 41

Q

Must every claim in federal court have its OWN BASIS for federal jurisdiction?

Answer

A

Yes.

There are three main types of federal subject matter jurisdiction
 (1) Federal question
 (2) Diversity
 (3) Supplemental

Question 42

Q

What are the 4 requirements for subject matter jurisdiction?

Answer

A

Supplemental jurisdiction is allowed when:
* (1) Court has subject matter jurisdiction over initial claim;
* (2) Court does not have subject matter jurisdiction over additional claim;
* (3) Additional claim derives from the same transaction or occurrence; AND
o Same T/O defined: “common nucleus of operative fact.
* (4) In diversity, where diversity is not destroyed.

Note: Supplemental Jx is a discretionary decision for the court (e.g., state law claim is complicated)
o Note: Plaintiffs do not usually bring supplemental Jx to diversity cases. Usually Ds.
o Example
 P1 and P2, citizen of VA sue D, citizen of PA on state law tort
 P1 claim is 100K
 P2 claim is 50K
 So case gets into court with P1 claim but P2 claim doesn’t work on in its own
 So P2 gets in through supplemental Jx

Question 43

Q

How is same transaction and occurrence defined?

Answer

A

Common nucleus of operative fact.

Question 44

Q

What are the 4 categories under which a P is subject to a requirement not to destroy diversity?

Answer

A

Rule: In any action where diversity is the basis for subject matter jurisdiction, supplemental jurisdiction shall not destroy diversity. This includes claims by Ps against persons made parties under:
* Rule 14: Impleader—Bringing in a third party defendant
* Rule 19: Required joinder of a party
* Rule 20: Permissive joinder of a party
* Rule 24: Intervention by right or by permission

Exam Tip
 Where supplemental jurisdiction is at issue, look for subject matter jurisdiction to be at issue.

Question 45

Q

What is the general rule on removal that includes three points - when it works, timing, and location

Answer

A

Rule: Removal allows a defendant to move a case from state court to federal court if the case could have been brought into federal court. Defendant must remove no later than 30 days after service of a document showing the case is removable. Removal is only proper to the federal district where the original state court action is pending.
 Note: Only defendants can remove and don’t use the word transfer since that’s used with venue. Also, don’t switch states (if federal in State A is proper, don’t remand to federal in State B).
 Example: P sues D in state court. D would rather be in federal court. D requests removal.

Question 46

Q

What is the rule regarding removal when the plaintiff has multiple claims and some do not have subject matter jurisdiction in federal court?

Answer

A

 Rule: If multiple claims, for which some have no subject matter jurisdiction, the defendant can still remove.

Question 47

Q

What are the 2 limits on removal in diversity actions only?

Answer

A

Rule: A defendant cannot remove to federal court if he is a citizen of the state in which the action was filed.

Rule: One-year time limit
* Rule: If a diversity action is not initially removable but later becomes removable, it may not be removed after one year.
o Example: Nondiverse defendant dismissed it may not be removed more than one year after it was commenced in state court.

Question 48

Q

Who must join in removal?

Answer

A

 All Ds served with process must join in the removal
 Earlier-served D may join later-served D’s removal even if 30-day period expired.
 NOTE: Plaintiffs cannot remove even if there is a counterclaim against them.

Question 49

Q

What is the relationship between removal and venue?

Answer

A

The case must be removed to the federal district court embracing the state court in which the plaintiff originally filed. It does not matter if it is not the proper venue under venue statutes.
* Example
o P sues in San Diego, under Southern District of CA. D may NOT seek to remove case to Northern District of CA.

Question 50

Q

Define remand including the timing rule and SMJ distinction.

Answer

A

o Rule: A plaintiff can file for remand back to state court where removal to federal court is improper. The P must move to remand the case within 30 days. If the remand is due to no SMJ, there is no time limit.

o Exam Tip
 Where removal and/or remand are at issue, look for SMJ to be at issue as well.

Question 51

Q

What does venue tell us and can it be waived?

Answer

A

Venue tells us which geographic district to go to. Unlike SMJ, venue can be waived.

Question 52

Q

What the 3 situations in which venue is proper?

Answer

A

 (1) Any district where all Ds reside
 (2) Any district where substantial part of the claim arose or substantial part of the property is situated
 (3) If 1 or 2 above cannot be satisfied, venue is proper where any D is subject to the court’s PJ with respect to the cause of action.

Question 53

Q

What are the nuances on the district where all Ds reside

Answer

A

Nuance: D1 lives in Northern FL, and D2 lives in Southern FL, Plaintiff can choose whichever district in Florida they want
Note: If D lives outside of U.S., venue is appropriate in any U.S. district
Note: For venue, it does NOT matter where the plaintiff resides
California
o If corporation: PPB or under contract or personal injury rules
o If unincorporated business: PPB or residence of any member of partner

Question 54

Q

Under the second prong, any district where substantial part of the claim arose or substantial part of the property is situated, what are the California rules for land, contract, or personal injury/wrongful death?

Answer

A

o Land: Where land in dispute is located
o Contract: Where contract entered into or to be performed
o Personal injury or wrongful death: Where injury occurred

Note: More than one district can satisfy this requirement

Question 55

Q

In California, where there are mixed claims that call for different venues, what is the rule?

Answer

A

Venue is proper in the county that applies to the main relief sought.

Question 56

Q

On the exam, in a venue essay question, what should you do?

Answer

A

Walk through all 3 options.

NOTE: When the D is the U.S. or government agency,
Where D resides, substantial part of property/occurrence, or where the plaintiff resides if no property is involved in the action.

Question 57

Q

What is the disctinction between removal and venue?

Answer

A

Venue rules do NOT apply to removal.

Question 58

Q

For venue, individuals reside at their domicile. For corporations, how is residence defined only in venue matters?

Answer

A

Corporations reside where they are subject to PJ with respect to the action in question at the time case is filed.

Note: A corporation’s residence for venue purposes is NOT defined the same way as a corporation’s citizenship for diversity purposes.

Question 59

Q

In California, only for venue purposes, how do we define where a corporation resides? There are 4 options.

Answer

A

o (1) Corporation has their PPB
o (2) Corporation entered into or performed contract
o (3) Where breach occurred
o (4) Where liability arises

Question 60

Q

In a venue analysis, where do non-residents reside?

Answer

A

any judicial district

Question 61

Q

When does transfer of venue occur?

Answer

A

Transfer of venue occurs when a case is moved from one trial court to another within the same judicial system.

Venue may be transferred so long as the court has PJ and SMJ without requiring the D to waive PJ.
* Note: A federal court cannot transfer to a state court (different judicial systems).

Question 62

Q

To transfer from a proper venue to another venue, what are the 2 factors the court will assess?

Answer

A

o (1) Convenience of the parties and witnesses; AND
o (2) Interest of justice

Question 63

Q

When transferring from a proper venue to another proper venue, how long does the court have?

Answer

A

Anytime, up to judge.

Question 64

Q

What is the choice of law used when transferring from a proper venue to another proper venue, and what is the exception?

Answer

A

Rule: A transfer away from a proper venue carries the choice of law rules of the transferor court.
 Exception
* Transfer was ordered to enforce a forum selection clause unless forum selection clause was unreasonable. Then, transferee court choice of law rules apply.
* Consider public interest factors

Answer 65

A

o (1) Transfer in the interest of justice OR
o (2) Dismiss.

Answer 66

A

Venue is waived unless a timely objection is made (e.g., in the Answer)

Answer 67

A

Under forum non conveniens, a federal court with jurisdiction may use its discretion to dismiss or stay a case if there is a far more appropriate forum elsewhere, such as another state of country. Transfer is not possible.

Answer 68

A

o The forum must be adequate in that the P can receive some remedy (e.g., in the other court outside the country).
* Example: Big accident happened in Latvia, caused by U.S. company, but all witnesses and evidence in Latvia.

Answer 69

A

Inconvenient forum

Answer 70

A

Timing: NOT waived
Example: NOTE: A state court in CA cannot transfer to a state court in Maine, so the remedy will be inconvenient forum.

Answer 71

A

Rule: A D must receive notice through service of process. Service of process includes:
* (1) A summons; AND
* (2) Copy of the complaint.

Answer 72

A

Service can be made by anyone who is:
* (1) At least 18 years old; AND
* (2) Who is NOT a party to the action.
* Note: Includes a U.S. Marshall

Answer 73

A

Service within the U.S. must be made within 90 days of the filing of the complaint
* Exception
o Court extends period for good cause shown.

Answer 74

A

(1) In state where the district court sits
(2) Anywhere allowed by long-arm statute

Answer 75

A

Out of state service allowed within
- 100 mile radius
- Only 3rd party defendant or indispensable parties

Answer 76

A

(1) Personal service
(2) Service left at defendant’s usual abode with one of suitable age and discretion residing therein
o Person older than 14 years
(3) Service upon authorized agent of defendant
(4) Through other method authorized by state.

Answer 77

A

Rule: A minor or incompetent person must be served in accordance with the rules of the state in which service is made.

Answer 78

A

Rule: A corporation, partnership, or association may be served by serving an officer, managing or general agent, or an authorized agent of the corporation.

Answer 79

A

o (1) Formal request to waive service;
o (2) Copy of complaint;
o (3) Two copies of a waiver form; AND.
o (4) Pre-paid return envelope.

Answer 80

A

Rule: The defendant must mail the waiver back to the P within 30 days or 60 days if outside of U.S.

Answer 81

A

Rule: A D who waives formal service of process has 60 days (90 days if outside the U.S.) from the date the request was sent, instead of the usual 21 days to respond to the complaint.

NOTE: The waiver of service does NOT waive the defendant’s right to object to jurisdiction and venue or any other defenses.

Answer 82

A

Rule: If the defendant does not waive service of process, the plaintiff must serve him. However, a defendant located in the U.S. is liable for the cost of service if he does not have good cause for failing to waive service.

Answer 83

A

o (1) As provided in an international agreement (e.g., Hague Service Convention)
o (2) In absence of such agreement, as provided by the foreign country’s law or as directed by a foreign official
o (3) As long as ok by other country’s law, by personal service or by mail with signed receipt requested
 Exception: corporations, minors, incompetent
o (4) Any method the court orders (so long as not prohibited by international agreement)

Answer 84

A

o Any in-state method
o Prepaid mail return receipt requested

NOTE: Deemed effective 10th day after mailing

Answer 85

A

Process server files report with the court. If server is a civilian, the report is by affidavit.
Note: Failure to file report does NOT affect validity of the service

Answer 86

A

o D is immune from process while appearing in another case
 Example: Driver not served in Case 1; Driver appears in state for Case 2 deposition. Service on Case 1 would not be effective.
o D is immune from process if induced by fraud or deceit to enter state just so he could be served

Answer 87

A

o D is NOT immune from being served with process in CA if he is in CA to be a witness or party in another state, civil case, but he is immune from service in a civil, federal case.

Answer 88

A

When it is mailed

Answer 89

A

If D receives service by snail mail, you receive additional 3 days to respond (on top of the 30 days).
o CA: 5 days added to time to respond, 10 days if it is out of state

Answer 90

A

At filing of complaint

Answer 91

A

In diversity cases, the state rule for determining when the action is commenced applies. Thus, depending on the state rule, an action may be commenced for statute of limitations purposes when process is served on the opposing party.

Answer 92

A

o Three types: personal, substitute, constructive
o Rule: Under California law, substitute service is allowed only if personal service cannot be accomplished with reasonable diligence.

Answer 93

A

(1) Service must be left at D’s usual abode;
(2) Must be left with a competent member of the household who is at least 18 years old;
(3) Person must be informed of the contents; AND
(4) Copy to D via first-class mail postage pre-paid.

Answer 94

A

Self-addressed stamped envelope
D has 20 days to return form
Service deemed complete when D executes waiver

Answer 95

A

(only in diversity actions)
o Note: On any civ pro essay, in diversity, bring up Erie Doctrine as issue. Also, there is NO Erie issue in federal question cases.

Answer 96

A

A federal court sitting in diversity applies federal procedural law and state substantive law.

Answer 97

A

 Is there a federal law on point that directly conflicts with state law?
 If so, apply federal law so long as the federal law is valid.
* Note: Due to Supremacy Clause.
* Example: FRCP is presumptively valid
* Done with steps

Answer 98

A

 If there is no federal law on point, federal judge must apply state substantive law and federal procedural law.

Answer 99

A

(1) Conflict or choice of law rules
(2) Elements of a claim or defense
(3) Statues of limitation
(4) Tolling of statutes of limitation
(5) Standard of granting a new trial due to excessive/inadequate award
 Note: This prevents forum shopping.

Answer 100

A

One of 2 tests applied
(1) Outcome determinative test
(2) Balance of interests tests

Answer 101

A

 Rule: An issue is substantive if it substantially affects the outcome of the case (apply state law).

Answer 102

A

 Rule: If the state has a greater interest in having the state law applied, the rule is substantive. If the federal interest is greater in having the federal law applied, the law is procedural.

Answer 103

A

Pleadings are documents that set forth the claims and defenses to a case.

Answer 104

A

 California courts use fact pleading where parties must plead ultimate facts to support each element of the cause of action.

Answer 105

A

 (1) Complaint
 (2) Response
 (3) Answer

Answer 106

A

 Under Rule 11, all attorneys (or a party representing himself) must signs all pleadings, motions, and papers, certifying 3 things:
* (1) Paper not presented for improper purpose;
* (2) Legal contentions warranted by law or good argument law should be changed; AND
* (3) Factual contentions and denials have evidentiary support.
 Note: Rule 11 does NOT apply to discovery violations.
 EXAM TIP – Issue Spotting
* If Rule 11 issue, bring up Professional Responsibility

Answer 107

A

The purpose of Rule 11 sanctions is to deter repeated conduct, not to punish.

Answer 108

A

A party may move for Rule 11 sanctions by:
* (1) Serving a motion on the other party; AND
* (2) Not filing the motion if the issue is corrected within 21 days of the service (safe harbor provision)

Answer 109

A

(1) Court does this sua sponte
(2) Opposing party files motion

Answer 110

A

Requiring attorney to attend class
Monetary sanctions paid to the court

Answer 111

A

 CA Sanctions – Mirroring Rule 11
* Works just like Rule 11 except the 21 safe harbor applies to not only to motions brought by the party but also when the court brings it up on its own
* An additional statute to recover expenses and fees for bad faith or frivolous tactics in litigation
o Frivolous – no merit; purpose to harass other party
o Must be a motion by party or court and an opportunity to be heard and 21 Safe Harbor applies

Answer 112

A

A federal complaint must include 5 things:
* (1) Identification of the parties;
* (2) Grounds for SMJ;
* (3) Statement of the claim showing P entitled to relief;
o Matters requiring more specificity: Fraud, mistake, and special damages
* (4) Demand for relief; AND
* (5) Signature of plaintiff or attorney.
* Note: Including a legal provision in a pleading does not make the pleading defective.

Answer 113

A

(1) Identification of parties;
o Fictitious “Doe” defendants allowed where identity unknown
(2) Statement of facts;
o Fact pleading where specific facts are provided to support every element of each legal theory
o Also, must plead with particularity if case of fraud, civil conspiracy, unfair business practices
o Note: Heightened requirements
(3) Demand for judgment; AND
o Includes amount of damages sought
 Exceptions
(1) Personal injury or wrongful death actions
(2) Punitive damages
Note: D will need to request a statement of damages which P needs to provide w/i 15 days. If P fails to do so, D can move for court order. Also, P must serve a statement of damages on any D before making request for entry of default.
(4) Signature of plaintiff or attorney.
Note: No need to allege SMJ, but in limited case, must state this in caption

Answer 114

A

o Rule: Verified pleadings can be treated as evidence for summary judgment because they are under oath.

Answer 115

A

Rule 12 requires a D to respond by either a motion or answer within 21 days after service of process (or within 60 days if service is waived)

Note: California allows 30 days to respond.

Answer 116

A

o Motion to Dismiss
o Motion for More Definite Statement
o Motion to Strike
o Motion for Judgment on the Pleadings

Note: Motions are NOT pleadings. They are requests for a court order.

Answer 117

A

o (1) Lack of SMJ
 Can be raised anytime before all appeals exhausted
o (2) Failure to state a claim upon which relief can be granted
 Can be raised anytime until trial is concluded
o (3) Failure to join an indispensable party
 Can be raised anytime until trial is concluded
o Waivable defenses (3Ps and a V)
 (4) Lack of PJ
 (5) Inproper process (something wrong in papers)
 (6) Improper service of process
 (7) Improper venue

Answer 118

A

anytime before all appeals exhausted

Answer 119

A

anytime until trial is concluded

Answer 120

A

o Waivable defenses (3Ps and a V)
 (4) Lack of PJ
 (5) Improper process (something wrong in papers)
 (6) Improper service of process
 (7) Improper venue

Answer 121

A

Defenses must be raised in the first motion or answer, whichever comes first.

Answer 122

A

 (1) General demurrer
 (2) Special demurrer

Answer 123

A

 (1) Parties must confer before filing demurrer
* Timing: Must meet at least 5 days before filing of demurrer
o 30 day extension if D declares good faith effort to meet was made, and stating why the parties could not meet
o Before filing demurrer, D must declare parties were unable to resolve the issue.

Answer 124

A

(1) Pleadings fail to state facts sufficient to constitute a cause of action
(2) Court lacks SMJ

 Exam Tip: Watch for cross-over question, to show elements of a tort.
 Note: These defenses can be raised in the Answer as an affirmative defense or used in a Judgment on the Pleading if time for Answer has expired
 Note: General demurrer is a pleading but it acts like a motion because it can get the case dismissed.

Answer 125

A

(1) Uncertain pleading
(2) Complaint unclear about which theories of liability are asserted against each of the defendants
(3) P lacks legal capacity to sue
(4) Existence of another case between P and D on same cause of action
(5) Defect or misjoinder of parties
(6) Failure to plead whether a contract is oral or written
(7) Failure to file a required certificate (e.g., for professional negligence claim)

Answer 126

A

lack of PJ
insufficient process
insufficient service of process

Timing
o The motion must be made either before or with the filing of the demurrer or motion to strike or the answer, or the following defenses are deemed waived
o (1) Lack of PJ
 A D must raise PJ on or before last day of his time to plead or it is waived
o (2) Insufficient process
 Something wrong with papers
o (3) Insufficient service of process
Note: If court denies motion, D must plead within 15 days or file the answer within 15 days.
Special vs General Appearance
o Special appearance when making motion to quash service of summons
o General appearance waives challenges to Jx and process
o General appearance such as answer or demurrer engages merits of case
Appeal of Motion to Quash
o Rule: The only way to appeal a denial of a motion to quash is to seek writ of mandate from the court of appeal.

Answer 127

A

Rule: A motion for a more definite statement is used where the complaint is too vague.
 California Rule: When a motion is too vague, a special demurrer is made on the ground that the pleading is uncertain.

Answer 128

A

 Rule: A motion to strike is made when a pleading contains immaterial, redundant or scandalous issues
 Examples
* Demand for a jury trial when there is no right to one
* D wants P to strike details of fraud in complaint
* Note: Both sides can make a move to strike

Answer 129

A

Rule: Under an Anti-Slapp motion to strike, D shifts the burden to the P to show a probability of winning on the merits. This aims to reduce the number of suits brought to chill free speech.
D is not supposed to make the motion if the P’s case is in the public interest or on behalf of the general public.
If D grants Motion to Strike, D can show grocer for malicious prosecution, and this is called a slap back suit.

Answer 130

A

A motion for judgment on the pleadings is filed after the answer is filed, and challenges the sufficiency of the pleadings.

 Note: Only difference with 12b6 is timing.
 Example: Defendant’s answer is missing a needed legal defense.

Answer 131

A

Filed within 21 days after service of process or within 14 days after D’s motion to dismiss is denied;
o 60 days if service waived
o CA: 30 days

Answer 132

A

(1) Filed within 21 days after service of process or within 14 days after D’s motion to dismiss is denied;
o 60 days if service waived
o CA: 30 days
(2) Admit, deny, or state you lack sufficient information to do either; AND
o Rule: Failure to deny an allegation is an admission
 Exception: D does not have to admit amount of damages.
(3) Raise affirmative defenses.
o Note: Waived if not asserted in answer.
 Note: In California, if P files a verified complaint, then D must file a verified answer.

Answer 133

A

 Plaintiff
* P has a right to amend Complaint once without court’s permission within 21 days after its filing. After the 21 day window, the court will grant permission when justice so requires.
 Defendant
* P has a right to amend Answer once no later than 21 days after serving his Answer.
* If the D’s first response was an Answer (not a Motion), where he forgot to raise waivable defenses or affirmative defenses, he can include them here.

Answer 134

A

 P has a right to amend once before the answer or demurrer, or after the demurrer is if there is a hearing on the demurrer. Otherwise, a party must seek leave of court to amend

There is a limit of 3 amended complaints.

Answer 135

A

 Rule: With court permission if justice so requires
* Usually approved except in 3 situations
o (1) Delayed too long
o (2) Prejudice to other party
o (3) Would be futile

Answer 136

A

An issue not raised by the pleadings but raised at trial may be amended in the pleadings to conform to trial, even after the trial, so long as the court approves.

Answer 137

A

Amended claims e pleading back to the date of the original filing for purposes of the statute of limitations when the claims “relate back”

Answer 138

A

 Claims “relate back” if they concern same conduct, transaction, or occurrence.
* Adaptibar: First claim against doctor for lack of informed consent; second claim, P wants to amend to add negligence during surgery. Courts consider if the D, when reading complaint, would have been placed on notice of possible claim to be added through amendment. If no, then the two claims do not involve the same conduct, transaction, or occurrence.

Answer 139

A

3 requirements
o (1) Amendment concerns same conduct, transaction, or occurrence;
o (2) Defendant had knowledge of case so won’t be prejudiced by amendment; AND
o (3) Defendant knew or should have known that P made a mistake.
Context only comes up when P sued the wrong D first, and the real D knew about it

Answer 140

A

 In CA, a P can sue a fictitious “Doe” if:
* (1) Original complaint filed before statute of limitations;
* (2) Original complaint contained charging allegations against fictitious D;
* (3) P genuinely ignorant of identity of fictitious D; AND
* (4) P pleads ignorance in the complaint.

Answer 141

A

Rule: P must substitute a named D for a “Doe” D within 3 years of the filing and then it relates back to the filing date of the original complaint.

Answer 142

A

o Context: Deals with something new that happened after the pleadings are filed
 Example: D punches P in nose after Complaint filed and now P wants to add a tort claim. P does NOT make a motion to amend the complaint.

Answer 143

A

A plaintiff may move to add a supplemental pleading to an original complaint if the event occurred after the date of the original pleading and the court grants permission.

EXAM TIP – Pleadings
o Pleadings are not typically tested outright, but the rules are eligible for testing, and the failure to state a claim upon which relief can be granted and the sufficiency of notice pleadings have been tested.

Answer 144

A

 Rule: A plaintiff can join as many claims as she wants against a defendant, even if the claims are unrelated, so long as the court has SMJ over the claims.

o Whether joinder of parties or claim is at issue, also look for issues of personal jurisdiction, subject matter jurisdiction, and/or supplemental jurisdiction.

Answer 145

A

(1) Counterclaims
(2) Cross claims

Answer 146

A

A counterclaim is any claim against a complaining party. A response is required within 21 days of service.
o Note: Counterclaim is contained in the defendant’s Answer.

Answer 147

A

(1) Compulsory
(2) Permissive

Answer 148

A

Compulsory claims are joined if they fulfill 2 requirements:
* (1) Arise from the same transaction/occurrence; AND
* (2) SMJ on the counterclaim.

 Note: If a compulsory counterclaim is not raised, the claim is waived. ONLY claim that is deemed waived.
 Note: No need to mention supplemental Jx.
 Note: Judge will dismiss a new case with one of these claims in it, since it should have been in initial case. However, if B moved to dismiss for improper service, as an example, and won, then B can bring that claim up in another lawsuit, because B had not answered yet.

Answer 149

A

Compulsory counterclaim

Answer 150

A

Those that do not arise from the same transaction or occurence.

Answer 151

A

 Rule: Permissive counterclaims, which do not arise from the same transaction/occurrence MAY be joined. If not, the claim may be raised in a separate case.
 Note: SMJ is often an issue.
 Note: An independent basis for supplemental Jx IS required, because it is not clear whether the claim has SMJ on it.

Answer 152

A

o (1) Claim against a co-party;
o (2) Arise from the same transaction or occurrence; AND
o (3) Claim on its own invokes subject matter jurisdiction, or if not, then supplemental jurisdiction.
o Example: Initially the case was diversity; but D1 and D2 both live in NY. So there is not diversity on the cross claim. So need independent basis (SMJ or supplemental)
 Supplemental analysis
* Does it mean common nucleus of operative fact? (Yes)
* Because the case got into federal court on diversity, does the additional claim destroy diversity? (No, because it is a claim by a defendant, and the supplemental jurisdiction limitation only applies to claims by plaintiffs)
* Note: Cross claims are never compulsory; you can sue on it later.
* Note: After cross claim, if other D wants to file a claim back, it is a counterclaim.

Answer 153

A

Counter claim, cross claim, impleader all 3 are called a ‘cross complaint’ in Superior Court
Cross complaint MUST be a separate document than the Answer
Three Types of Cross Complaints
o (1) Cross complaint against plaintiff (same as counter claim)
 File before or at same time as Answer
 Compulsory and permissive still applies
o (2) Cross complaint against a co-party (same as cross claim)
 Can file anytime before court sets trial date
 Not compulsory
o (3) Cross complaint against third party (same as impleader)
 Can file anytime before court sets trial date
 Not compulsory
 Usually for indemnity or contribution
Person must respond within 30 days of receiving complaint

Answer 154

A

(1) Required and Indispensable Parties
(2) Permissive parties

Answer 155

A

o (1) Court cannot accord complete relief without absentee
o (2) Absentee’s interest will be harmed [OR]
o (3) Defendant at risk for multiple or inconsistent obligations

Answer 156

A

 (1) Personal jurisdiction over absentee; AND
 (2) Federal subject matter jurisdiction over claim by or against absentee.

Answer 157

A

 (1) Dismiss
 (2) Proceed without necessary party

Answer 158

A

 (1) Alternative forum available
 (2) Actual harm to absentee is likely
 (3) Court can shape relief to avoid any harm
* NOTE: Joint tortfeasors are NOT required parties for joinder.

Answer 159

A

Ps and Ds MAY be joined to a case if:
o (1) Arise from the same transaction or occurrence;
o (2) Raise a common question of fact or law; AND
o (3) Court has SMJ.

Example: P1 and friend got in same accident. Friend may join as P2.

Answer 160

A

o Rule: If parties are improperly joined, the court can grant a motion to sever.

Answer 161

A

Impleader
Interpleader
Intervention

Answer 162

A

Under impleader, a defendant may implead a nonparty, if the nonparty may be liable for any part of a judgment that the plaintiff may recover against her.
 Note: State law MUST recognize contribution among joint tortfeasors in order for impleader to be effective.
o Note: Indemnity shifts the liability completely, while contribution shifts it pro rata.
o Note: Impleading is proper only to join a party who is derivatively liable to the defendant, not to bring in a substitute defendant. Do not use impleader to “switch” defendants.
o Example: Homeowner sues subcontractor, subcontractor impleads termite guy for causing the damage to the house
o Note: Impleader claims are always permissive

Answer 163

A

Supplemental Jx will apply because the claim will meet the “common nucleus of operative fact” It cannot destroy diversity because this is a new defendant coming in, not a plaintiff, and additional requirements ONLY APPLY TO PEOPLE THE PLAINTIFF BRINGS IN.

Answer 164

A

 (1) D files a third party complaint naming the third party defendant and serves the third party defendant.
 (2) D may implead within 14 days of serving the answer, otherwise must ask for court permission (leave of course)

o Note: Third party defendant can assert claims against P and P can assert claims against third party defendant so long as they arise from same transaction/occurrence and there is SMJ
* Try diversity, try federal question. If neither works, try supplemental.
 Note: If third party defendant is same state as plaintiff, it is OK, because the plaintiff is not part of the claim, the claim is between the defendant and the third party defendant.
 Note: Even if TPD sues plaintiff, and they are from same state, diversity is not destroyed, because supplemental Jx restriction only applies to claims made by the plaintiff. But if P sues TPD and they are same state, claim cannot come in because of supplemental Jx restriction.
o California
 California calls this a cross complaint, and it allows addition of any claim on which third party D is liable so long as pertains to same transaction/occurrence

Answer 165

A

Under impleader, venue need not be proper for the third party D.

Answer 166

A

(1) As of right
(2) Permissive

Answer 167

A

(1) Absentee’s interest may be harmed if she is not joined;
(2) Interest is not adequately represented; AND
(3) Intervenor’s claim has SMJ.
Example: Intervenor claims an interest in the property or transaction that is subject of the suit and his absence will impair his rights.

Answer 168

A

 (1) One common question of law or fact; AND
 (2) Intervenor’s claim has SMJ.
o Recall: Try SMJ, if that doesn’t work, try supplemental Jx

Answer 169

A

the supplemental Jx limitation applies where diversity cannot be destroyed

In any action where diversity is the basis for subject matter jurisdiction, supplemental jurisdiction shall not destroy diversity. This includes claims by Ps against persons made parties under:
* Rule 14: Impleader—Bringing in a third party defendant
* Rule 19: Required joinder of a party
* Rule 20: Permissive joinder of a party
* Rule 24: Intervention by right or by permission

Answer 170

A

 Rule: Under intervention in California, intervention is allowed if the person’s interest is direct and immediate
 Note: Intervention not allowed if the interest is indirect and consequential.

Answer 171

A

 Interpleader permits a stakeholder to require 2 or more claimants to litigate amongst themselves to determine who has a valid claim, in order to avoid double liability.

Answer 172

A

Federal Interpleader Statute

Rule 22

Answer 173

A

Requires
o (1) One claimant diverse from the other claimant;
o (2) Amount in controversy must be $500 or more; AND
o (3) Plaintiff stakeholder deposits bond with court.

Answer 174

A

Requires
o Federal subject matter jurisdiction

Answer 175

A

o (1) Numerosity where joinder of all is impractical
o (2) Commonality where there is a common question of law or fact;
o (3) Typicality where the named parties interests are typical of the class;
o (4) Adequate representative to fairly represent absent members; AND
o (5) Action fits into 1 of 3 types

Answer 176

A

 (1) Necessary to avoid inconsistent results (rare)
 (2) Injunctive or declaratory relief is appropriate (e.g., employment where all class claims employer not giving them legally required vacation time)
 (3) Common questions of fact or law predominate and class action is superior to other methods
* Note: Most likely on bar exam, due to Notice analysis required. Also, this is where you sue for damages.

Answer 177

A

 Court defines class, claims, issues, and defenses
 Court appoints counsel
 Certification is immediately appealable

Answer 178

A

o Rule: Court must notify members all reasonably identifiable members by mail.
 Notice will provide that they can opt out if, and if they don’t, they are bound.

Answer 179

A

Notice is NOT required in a Type 1 or Type 2 class action.
 Also, there is no right to opt out of a Type 1 or Type 2 class action

Answer 180

A

court approval

Settlement or Trial
o Rule: Once class action is certified, you can only settle or dismiss with court approval.
o Settlement Proposal Process for all 3 Types
 Courts gives notice to class members of settlement and gets their feedback as to whether it should be settled or dismissed
 Court may refuse settlement unless members given second chance to opt out

Answer 181

A

Rule: Only citizenship and amount of claim of named class representative is taken into account

Answer 182

A

Rule: Under the Class Action Fairness Act, in cases where there is not complete diversity, a federal court may still hear the class action is 3 requirements are met:
o (1) Any class member is diverse from any D;
o (2) Aggregated claims exceed $5 million; AND
o (3) At least 100 class members.
Note: Any D may remove
Note: Local actions stay local

Answer 183

A

o (1) Must have been shareholder at time of transaction (or received shares by operation of law); AND
o (2) Must have made demand on Board if required
o Venue is where corporation could have sued the same Ds

Answer 184

A

 (1) Ascertainable class; AND
 (2) Well defined community of interest.

Answer 185

A

o (1) Common questions predominate
o (2) Representative adequate
o (3) Class will result in substantial benefit to parties and court

o Notice
 Individual notice is NOT required
 Publication to a class may be given
 All class members who do not opt are bound by the class judgment
o Court will decide who will pay – the rep or the defendant or shared costs
o California does not require the court to appoint class counsel, but will approve a settlement
o Determining the AIC for a class action in California
 Limited or unlimited: Aggregate claims to reach $26K to make it unlimited

Answer 186

A

(1) Initial disclosures
(2) Expert testimony disclosures
(3) Pretrial disclosures

Answer 187

A

(1) Name, number, address of people with discoverable information about claim or defense;
(2) Documents (ESI, tangible things) used to support claim or defense unless solely for impeachment;
(3) Computation of damages; AND
(4) Insurance coverage.
Example: D does not have to initially disclose a harmful document. But if P has the memo (showing company fault), she has to disclose it.

Answer 188

A

Within 14 days of the Rule 26f conference, each party must disclose initial disclosures AND must submit to the court the detailed discovery plan.
o Note: Discovery requests (other than requests for production) cannot take place until after the Rule 26f conference.
* Example: You cannot serve someone and attach interrogatories.

Answer 189

A

(1) Identity of expert;
(2) Expert qualifications;
(3) Expert’s written report including data;
(4) Any exhibits;
(5) Compensation received; AND
(6) List of other cases testified in in last four years

Answer 190

A

at least 90 days before trial through a supplementary disclosure.

Answer 191

A

(1) List of non-expert witnesses; AND
(2) List of documents or exhibits

Answer 192

A

30 days before trial

Answer 193

A

 Consulting experts and their materials need NOT be disclosed absent exceptional circumstances.
Consulting experts may NOT be deposed.

Answer 194

A

The penalty for failure to disclose is that the party cannot use the undisclosed material unless it is harmless.
* Note: This would include not being allowed to use an expert witness if the rules weren’t followed.

Answer 195

A

CA does not require ANY INITIAL or MANDATORY DISCLOSURES.

Answer 196

A

A deposition is live testimony under oath. Non-parties can be deposed through a subpoena. The FRCP permits one deposition per person, not to exceed 7 hours in a day.
 Limits on Depositions
Unless court orders otherwise
o No more than 10 depositions
o Cannot depose same person twice
o Cannot exceed one 7-hour day
o Unless a non-party agrees, the farthest they must travel to a deposition is 100 miles
California = no limit on number of depositions

Answer 197

A

No.

Physician who treated plaintiff
o Example: Laura is Phil’s doctor and is not a party to the litigation. So long as her testimony is relevant and not privileged, she may be deposed.

Answer 198

A

Confidential communications made for the purpose of receiving a medical diagnosis and treatment ARE privileged
 EXCEPTION
* When the patient puts his physical condition at issue.
* Note: This is why the treating doctor would have to testify in a personal injury case, and this is why the Erie Doctrine has to be brought up.

Answer 199

A

No limit on number of depositions
Must get court order to take discovery within 10 days of serving D with process or within 20 days if it will take D’s deposition
Work exactly like federal court other than the limit (federal court has limit of 10)
In state and federal court, deposition should be 1 day of 7 hours

Answer 200

A

Interrogatories are written questions to parties answered under oath. They cannot take place until after the Rule 26f conference and must be responded to within 30 days of service.

Answer 201

A

Only to parties
Limited to 25 questions without a court order or stipulation
o California
 Form interrogatories approved by Judicial Council
No Limit
 Special interrogatories
No subparts
Limit 35 questions (unless court approves otherwise upon filing of “Declaration of Additional Discovery” identifying the need)
o Otherwise, interrogatories work the same
Note: If the burden of finding an answer is equal to both parties, the responding party can just point other party to the data to find it themselves.

Answer 202

A

Contention interrogatories are interrogatories that ask about an opposing party’s legal contentions.
* Note: Interrogatories can ask about fact and the law.

Answer 203

A

A request for admission is a written request asking the opponent to admit facts. Reasonable inquiry must be made before answering

Answer 204

A

o Must respond within 30 days
o Response: Deny, deny knowledge, object, admit
o If fail to deny, answer deemed admitted.
o CA = no more than 35 requests (unless court approves otherwise upon filing of “Declaration of Additional Discovery” identifying the need)
 Exception
* Request to admit genuineness of documents no limit
o CA
 Limited case: 1 deposition
 Limited case: Combined total of 35 for requests for admission, interrogatories, inspection demands

Answer 205

A

Any party may request another party or non-party with subpoena to make available for review and copying documents or permit entry onto property.

Answer 206

A

o Must respond in writing within 30 days and state whether material will be produced or why material isn’t available.

 California
* Same as above but NOT allowed for non-parties. Instead, subpoena for deposition and to bring documents with you.
* In an unlimited case, no limit

Answer 207

A

(1) Court order;
(2) Showing that physical or mental condition is at issue; AND
(3) Good cause for an examination.

NOTE: ONLY of parties

Note: Can get order for someone in your custody or in control. If parent suing toy company, we could get court order for exam of child. This does not work for employees.
Note: Requesting party chooses the doctor.
Note: If negligence case on the essay question, you can mention the four elements, duty, breach, causation, damages, and mention that physical exam is needed for damages. Also, since P made his injuries an issue in a personal injury negligence case, so it makes sense that his treating doctor would have to testify.
Note: You can mention that a mental exam would be intrusive.
Note: Responding party can request copy of report, but then on request, she must produce all medical reports from her own doctors.

Answer 208

A

Under the California rule, a court order is required for a physical or mental exam.
o Exception
 Personal injury case; D has a right to demand one physical exam
The lawyer has a right to attend the physical exam; the lawyer needs a court order to attend mental exam

Answer 209

A

(1) Parties meet to discuss the data;
(2) Court can order production and impose cost-sharing methods; AND
(3) Parties must take reasonable steps to preserve.

Answer 210

A

Supplemental Discovery – Unlimited Cases Only
o Requesting party can propound a supplemental interrogatory and a supplemental demand for inspection
 Limit for both: Twice before trial date is set and once after trial date is set

Answer 211

A

Lawyer Signature
o Required on discovery items though Rule 11 does not apply here
o If new facts come up after we responded to discovery and make prior information incorrect, lawyer must come forward with new info

Answer 212

A

Discovery is permitted with regard to any non-privileged matter that is:
 (1) Relevant to a claim or defense; AND
 (2) Proportional to the needs of the case.
 Note: Discovery is broader than admissible

 California – Scope of Discovery
* Rule: You can discover anything relevant to the subject matter.
* Info need not be admissible
* Same as federal court on privileged matter, log, etc.

Answer 213

A

If the responding party identifies it as from a source that is not reasonably accessible because of undue burden or cost.

Answer 214

A

(1) Privileged material
(2) Attorney work product

Answer 215

A

 Attorney work product is material prepared in anticipation of litigation.

Answer 216

A

AWP is NOT discoverable unless there is:
 (1) Substantial need; AND
 (2) Undue hardship to obtain information any other way.
 Note: Does not need to be made by lawyers, could be a private investigator or plaintiff or a doctor
 Example: Draft reports and communication from doctor are protected work product

Answer 217

A

Confidential communications between such experts and counsel for the party are also generally protected under the work product doctrine
o Exception
 Communications related to expert’s compensation or to facts or data attorney provided expert.

 Note: Identity of people with discoverable info (e.g., eyewitnesses) is never privileged, even if one party paid a lot to find out who the people are.

Answer 218

A

(1) Mental impressions
(2) Opinions
(3) Conclusions
(4) Legal theories
Note: These can be generated by private investigator.
 Federal: Work product can be generated by the party or any representative of a party.
 California: Work product must be generated by the attorney or her agent.

Answer 219

A

California Constitution recognizes a right to privacy, which is balanced against need for the information/discovery. That said, privacy protection is not assumed, and the objecting party will need to establish an interest in privacy, and the court will then determine through a balancing test.

Answer 220

A

(1) Must claim protection expressly; AND
(2) Must prepare privilege log

Answer 221

A

Other party must:
o (1) Notify other party promptly; AND
o (2) Other party must return it, sequester it, or destroy it, pending a decision by the court on whether there has been a waiver.

Answer 222

A

If a party fails to fully respond to discovery:
 (1) Other party may move to compel discovery; AND
 (2) Must certify that made a good faith attempt to confer with the opposing party to obtain the discovery.

o Discovery violations (including not attending depo) may lead to sanctions.
 Note: Meet and confer is a prerequisite to an award of reasonable expenses (which includes attorneys’ fees).

o Partial failure to respond
 Merits sanctions
* (1) Establishment order
* (2) Strike claims or pleadings
* (3) Disallow evidence
* (4) Dismiss P’s case
* (5) Enter default judgment against D
* (6) Contempt
 But no contempt for refusal of medical exam
o Total failure to respond
 Monetary sanctions
 Merits sanctions

Answer 223

A

 Court may order an adverse inference only if the party who lost the ESI acted with the intent to deprive the other party

Answer 224

A

o (1) To impeach witnesses
o (2) For dead, unavailable, or absent witnesses
o (3) For any purpose if deponent is the adverse party

Answer 225

A

(1) Motion to dismiss for failure to state a claim
(2) Dismissal
(3) Entry of Default Judgment
(4) Motion for Summary Judgment

Answer 226

A

(1) Voluntary dismissal without court permission
(2) Voluntary dismissal with court permission
(3) Involuntary dismissal

Answer 227

A

Before D files an answer or MSJ. The first dismissal is WITHOUT prejudice. The second is WITH prejudice.
This is also true if first case was state court.

o California rules: A plaintiff can move to voluntarily dismiss a claim anytime before the trial starts, and the judge decides if you can do it.
 If P moves for dismissal after trial starts and judge grants, it is granted with prejudice

Answer 228

A

An involuntary dismissal may be done at the defendant’s request or at the court’s own motion. Such a dismissal is usually with prejudice, so it may not be relitigated.

Answer 229

A

(1) The case is not brought to trial within 5 years of filing
o Exclude time for which proceedings stay
(2) Process not served within 3 years of filing
o Exclude time for which impossible to serve process

Answer 230

A

o Notation in the case file by the clerk that there has been no answer filed within the permitted time.

Answer 231

A

An entry of default occurs if the defendant fails to respond to the Complaint within 21 days after service. P must file a motion and affidavit with the clerk of the court to make an entry of default.
o California: D fails to respond within 30 days of service
o Note: No notice is required.
o California: P must provide affidavit stating that a copy of the application has been mailed to the defendant

Answer 232

A

o Rule: An entry of default cuts off the defendant’s right to proceed until the default is set aside by the court.
o Note: The plaintiff is not awarded anything; the damages amount is not yet determined.

Answer 233

A

o (1) D has failed to appear;
o (2) Claim for a certain amount;
o (3) P gives affidavit of amount owed; AND
o (4) D is not a minor or incompetent.
o Note: Damages amount requested should not be greater than amount in complaint.
 Example: In Complaint, P asks for damages, but during default judgment, she asks for injunction. Court will not give her injunctive relief.

Answer 234

A

o Judgment entered because defendant did not oppose the case.

Answer 235

A

D made no response;
Claim on contract or judgment;
D not served by publication; AND
P provides affidavit providing relevant facts.

Answer 236

A

If defendant has appeared, even though he has not answered, he must be notified of the request for default judgment by first class mail at least seven days before the hearing on the application for a default judgment.
Note: Appearance includes any action that shows he is involved in case

Answer 237

A

D can move for MSJ no later than 30 days after the close of discovery.

Answer 238

A

Claim or issue preclusion

Answer 239

A

 Note: A court can grant partial summary judgment as to one of several causes of action.
 Note: Here, court looks at evidence (differs from 12b6). Recall, pleadings are not evidence, they are not even under oath. If you see the word ‘verified pleading’ it is under oath and considered evidence. However, if D failed to deny something in Answer, that admission can be used in summary judgment.
 California Rule - not heavily tested
* (1) Moving party serves separate statement of material facts
* (2) At least 75 days before hearing
* (3) Opposing party responds at least 14 days before hearing
* (4) Reply papers must be filed at least 5 days before hearing
- EXAM TIP
o Civil procedure essay exams will often phrase a call by asking if a party is entitled to a motion of summary judgment, or a dismissal. This is almost always a method employed to ask about the underlying procedural issues present in the question, such as jurisdiction or claim preclusion or issue preclusion.

Answer 240

A

A court will grant a motion for summary judgment when there is no genuine dispute of material fact. Evidence is viewed in light most favorable to the nonmoving party.

Answer 241

A

 (1) Irreparable harm
 (2) Likely to win on merits
 (3) Balance of hardships
 (4) Public interests
 Note: P also must post bond and must provide facts and law.
 Note: Appealable.

Answer 242

A

A temporary restraining order preserves the status quo until the hearing for a preliminary injunction. TROs are not appealable and notice of a TRO hearing must be given before it is issued.

Answer 243

A

Moving party must:
* (1) Affidavit showing immediate and irreparable injury if opposing side can be heard;
* (2) Efforts to give notice or why notice not required; AND
* (3) Security.

NOTE:  Must state its terms specifically and describe in detail what the D must do or not do;
 Must state why it was issued; AND
 Must state why the threat of injury to P was irreparable

Answer 244

A

 Typically 14 days with one 14 day extension allowed, for max total of 28 days
* Extension requests only approved if good faith reason
* OK to ask for extension right before the initial hearing date was set
 Treated like a preliminary injunction after 28 days

Answer 245

A

The Seventh Amendment provides a right to a jury trial in federal court for all civil actions at law. A Plaintiff must demand in writing, within 14 days of service of the last pleading that he wants a jury trial. Otherwise, it is waived, unless the court decides otherwise.

 NOTE: Equitable claims are not guaranteed a jury trial under the Seventh Amendment.

Answer 246

A

Damages claims tried first before the jury
After, equity claims are tried before the judge.
o Note: The jury’s findings on facts will bind the court in the equitable claim.
 Note: Seventh Amendment does NOT apply to state courts.

Answer 247

A

(1) For cause
(2) Peremptory

Answer 248

A

(1) Stock ownership in the company
(2) Potential juror or his spouse having worked for company

Note: A juror’s statement that he could fairly consider the evidence in the case is not determinative.

Answer 249

A

Peremptory challenges allow an attorney to disqualify a potential juror because the juror displays an unfavorable characteristic that does not rise to the level of bias.

Note: No reason needed but must be used in gender and race-neutral way, because jury selection is considered state action.

Answer 250

A

Each side has UNLIMITED challenges for cause and THREE peremptory challenges (though must be used in a gender and race-neutral way)

Answer 251

A

A jury must contain anywhere from 6-12 jurors with NO alternatives, and a unanimous vote is required.
* Note: Parties can agree otherwise to change number of jurors and that unanimous vote is needed.

Answer 252

A

o (1) Party objects on record;
o (2) Objection made before instructions are read to jury; AND
o (3) Judge tells parties the instructions and which were refused.
o Note: If attorney does not properly object, objection waived.

Answer 253

A

(1) General
(2) Special
(3) Combination

Answer 254

A

o (1) General
 Who wins and gives damages due
o (2) Special
 Answers questions about facts, and judge makes legal conclusions based on the answers
 If the judge fails to give an issue to jury, case reversed unless harmless error
 If attorney fails to make a request for an issue, jury trial on issue is waived, and judge decides it
o (3) General Verdict with Written Questions
 Answers to questions of fact are submitted along with the general verdict to test the verdict’s validity.

Answer 255

A

o (1) Jury may be asked to reconsider
o (2) New trial may be ordered
* Examples
o Wrongdoer is not liable
o Verdict that finds for the plaintiff for “actual damages suffered”

Answer 256

A

o (1) Answers to questions are consistent with each other, but NOT with the general verdict

o (2) Answers to questions are inconsistent with each other, AND are inconsistent with general verdict

Answer 257

A

 Court has 3 options:
* (1) Enter judgment in accord with the answers
* (2) Ask jury to reconsider
* (3) Order a new trial

Answer 258

A

(1) Ask jury to reconsider answers and verdict
(2) Order a new trial
Note: A jury may completely change its answers or the verdict after it redeliberates.

Answer 259

A

o (1) Personal knowledge of facts
o (2) Acted as lawyer with one of the other lawyers
o (3) Expressed opinion of merits while in government employment
o (4) Judge or immediate family member has financial interest in subject matter/party
o (5) Violates due process rights

NOTE: These cannot be waived.

Answer 260

A

o (1) External influence was involved; AND
o (2) Misconduct was material in that it could have made for a challenge to the outcome.

Example: Jurors bribed or used research outside of court

Answer 261

A

o (1) Determines facts of trial;
o (2) Determines legal conclusions; AND
o (3) Records findings in writing or orally on the record.

Answer 262

A

o Rule: If an attorney fails to object at the deposition as to the form of the question, he waived the objection at trial.

Answer 263

A

The California Constitution grants a right to a jury trial.

Answer 264

A

The demand for a jury must be made:
- At time case is set for trial OR
- Within 5 days after notice of setting.

Answer 265

A

 Rule: Unlike in federal court, in California, if a case has both legal and equitable claims, the judge decides the EQUITABLE ISSUES FIRST, and then the jury decides the legal issues.

 At trial, a plaintiff can recover more than in the complaint. Recall, the only time a judgment must match complaint is in default judgment.
* In limited civil cases, no claimant can recover more than $25K.

Answer 266

A

Where the main purpose of a case is equitable, and the only legal issue concerns incidental damages, the judge may hear the whole case and a jury is NOT required.

Difference is that in federal, damages are only handled by jury.

Answer 267

A

 Rule: Each party entitled to unlimited challenges for cause and SIX preemptory challenges.
* Recall: Federal court only allows 3 preemptory challenges. Also, federal court (gender, race). State court (religion, gender, race, sexual orientation, etc.)
 Rule: A jury contains 12 jurors and alternates; and only a 3-quarters juror vote is required (civil cases only; criminal cases – unanimous verdict is required)

Answer 268

A

 Limited civil case subject to mandatory expedited trial
 Number of jurors = 8
 Peremptory challenges = 4
 Jury vote = 6 of 8
 Each side has 5 hours to do voir dire and present case
 Parties may enter a high lo agreement (min max for defendant’s liability)

Answer 269

A

A motion for a Judgment as a Matter of Law:
(1) Can only be made at trial and must be made after the opposing party has been heard on the issue and before the case goes to the jury;
(2) The motion is granted if reasonable people could not disagree on a result; AND
(3) Evidence viewed in the light most favorable to the nonmoving party.

 Note: This serves to take the case away from the jury.
 Example: P rests at trial. D can then move for JMOL, but P may not, since D has not yet been heard.

o California
 Rule: In California courts, a judgment as a matter of law is called a motion for a directed verdict or a demurrer to the evidence.
- EXAM TIP
Civil procedure essays may ask if a party is entitled to a JMOL as a mechanism to ask about the underlying substantive claim, such as a tort.

Answer 270

A

The following motions must be filed, with no extensions, within 28 days of entry of judgment
o (1) Motion for judgment as a matter of law
o (2) Motion to amend judgment
o (3) Motion for a new trial
o (4) Motion to amend findings of fact in a non-jury case
o (5) Grant of a new trial on the court’s initiative

Answer 271

A

Renewed Judgment as a Matter of Law is a
(1) No reasonable jury could have agreed on the result;
(2) Decided AFTER a jury has returned its verdict;
(3) Viewed in the light most favorable to the non-moving party;
(4) Losing party must have originally filed a JMOL; AND
(5) Motion is made within 28 days after entry of judgment.

 Note: RJMOL has to be raised on the same grounds as the JMOL.
o NOTE: RJMOL is much more drastic than a new trial, because RJMOL takes the verdict and gives it to the other party, whereas in a new trial, the same party who initially won can win again.

Answer 272

A

Called a motion for judgment notwithstanding the verdict
Unlike in federal court, the losing party is NO required to make a directed motion first in order to make the JNOV motion
Motion must be made within 15 days after notice of entry of judgment, or 180 days after the entry of judgment.

Answer 273

A

(1) Prejudicial error that makes judgment unfair
(2) Newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial
(3) Prejudicial misconduct of a party/attorney/third party/juror
(4) Judgment is against the weight of the evidence
(5) Excessive damages or inadequate damages
(6) What the judge has concluded to be her own errors committed during the trial
Recall: A federal court is authorized to order a new trial on its own for any reason justified.
o Note: If party loses JMOL or RJMOL motion, they can always file a motion for new trial
o Note: In a diversity case, federal trial courts are required to apply a state law standard when considering a motion for a new trial based on the excessiveness of the verdict.

Answer 274

A

A motion for a new trial must be filed with the trial court within 28 days from the verdict.

Answer 275

A

 Clerical errors
 Neglectful mistakes
 Newly discovered evidence that could NOT reasonably be discovered for the original trial
 Fraud, misrepresentation, or other misconduct of a party
 Lack of due process
Judgment has been void or satisfied

Answer 276

A

(1) fraud,
(2) neglectful mistakes
(3) newly discovered evidence

CA: 6 months limit for all

Answer 277

A

 Rule: Under remittitur, if a judge thinks that an award is excessive in that it “shocks the conscience,” the judge is permitted to either:
* (1) Order a new trial
* (2) Offer the alternative of remittitur
* Note: P must receive offer from judge. Judge can’t decide unilaterally.
 Note: Applies to federal and state court

Answer 278

A

 Rule: Additur occurs when a judge finds that the damage figure “shocks the conscience,” and orders a new trial unless the damage award is increased.
 California State Court: Additur is permitted

Answer 279

A

o Rule: A D can submit formal settlement offers up to 14 days before trial. Cost shifting applies to when a P rejects an offer to settle, and then does less well at trial.
o Example: D offers $50K to settle. P rejects. P wins $40K. P is then liable to D for litigation costs incurred after offer was made.

Answer 280

A

Start with the Final Judgment Rule

Answer 281

A

Generally, only a final judgment can be appealed. A final judgment is a decision by the trial court on the merits of an entire case (all parties and all claims). However, there are exceptions.

Answer 282

A

(1) Injunctions and TROs
(2) Trial court certifies an interlocutory order for an appeal
(3) Collateral orders
(4) Multiple claims or parties with some resolved and some still pending
(5) Extraordinary writ
(6) Certification of class actions

Answer 283

A

o For TRO: Those that are renewed beyond 28 days (that have become a preliminary injunction)

Answer 284

A

o (1) Controlling issue of law;
o (2) For which there is a substantial difference of opinion; AND
o (3) At least two appellate court judges agree to hear the appeal.
o Note: Not mandatory for appellate court to hear appeal.

Answer 285

A

o (1) Court hears issue unrelated to merits of case;
o (2) Case involves an important question of law; AND
o (3) The issue must be raised before final judgment.
o Example: 11th Am. provides that states are immune from suits in federal court. If state claims immunity and district court rejects this, state/D can appeal.

Answer 286

A

the resolved issues can be appealed if the court expressly finds no just reason to delay the appeal.
o Example: When a court grants summary judgment on some but not all of the claims in an action, the court’s order is not final and thus not appealable unless the court expressly determines that there is no just reason to delay entry of judgment.
o Adaptibar
 When a P sues multiple Ds, P must wait until a final judgment is reached on all Ds, before appealing (unless P can convince judge otherwise, which is rare).
o California: A judgment as to one of several parties is considered a final judgment and can be appealed.

Answer 287

A

An extraordinary writ is an entirely new case filed with the court of appeals to compel the trial judge to make or vacate a particular order.
o Example: Lower court not giving you right to a jury trial.
o California: Great area to test is that the only way to appeal a denial of motion to squash is to ask for a writ of mandate by the court of appeal.

Answer 288

A

o Start with court of appeals, within 14 days of the order
o The appeal does not stop the proceedings unless the trial court says so.

READ THIS ON FINAL JUDGMENT
 Example: P wins trial. D moves for new trial. Lower court grants. P appeals. Appeal denied; granting a new trial is not a final judgment, because they need to hold a new trial.
 Note: Remands, sent from federal court to state court, are not reviewable on appeal.

Answer 289

A

Must file notice of appeal in district (lower) court within 30 days after entry of final judgment.
* Note: The filing period is extended to 60 days when the United States is a party to the action.

 California:
* In unlimited case, appeal to CA Court of Appeal
o Must file notice of appeal within 60 days after service of notice of entry of judgment OR or 180 days after entry of the judgment if no notice is served.
* In limited case, appeal to appellate department of superior court

Answer 290

A

 (1) De novo
* No deference is given to the trial judge, and the appellate court will decide the issue from scratch.

 (2) Clearly erroneous
* Highly deferential to judge

 (3) Abuse of discretion
* Highly deferential to judge

 (4) Harmless error
* A conclusion an appellate court reaches after reviewing, not a standard to determine whether it was erroneous in the first place.

Answer 291

A

de novo
 Example: Whether punitive damages amount is Constitutional

Answer 292

A

abuse of discretion standard, which is highly deferential to the trial judge.
 Example: A party objects to judge allowing evidence in. This is facts and law together.

Answer 293

A

 Rule: An appellate court will not overturn a judge’s findings of facts unless clearly erroneous.
 Rule: An appellate court will not overturn a jury’s findings of facts unless no reasonable person could have made that finding, and the matter is viewed in the light most favorable to affirming the jury’s verdict.

Answer 294

A

abused its discretion.
 Examples
* Judge denies motion for new trial
* Judge makes discovery ruling

Answer 295

A

Affects substantial rights
Note: No reversal is required if “harmless error” (opposite of plain error)

Answer 296

A

An appellate court may reverse the verdict if:
o (1) Improper jury instruction;
o (2) Claim not property reserved by attorney; AND
o (3) Amounts to plain error.

Answer 297

A

o On exam, analyze BOTH claim preclusion and issue preclusion any time one arises
o On exam, always start with claim preclusion, because if it applies, Case 2 will not happen. Then, go to issue preclusion, since it is narrow.
o On exam, analyze MSJ and Claim Preclusion, because if claim precluded from being relitigated, then often judge will grant MSJ, because there is no dispute as to a material fact

Answer 298

A

Case 2 system must apply preclusion rules from Case 1 system
 Example: Case 1 Wisconsin, Case 2 Ohio. Case 1 Wisconsin preclusion rules are used.
 Example: Case 1, CA State law. Case 2, federal. Federal uses CA state law.

Answer 299

A

Res judicata

Answer 300

A

(1) Same P and same D in both actions (or those in privity);
* Example: Successor in interest to the property or claim; representative or trustee of a party
* Note: Privity exists in employer employee relationship
* Note: Not enough to say same parties. Must be same plaintiff in same configuration, suing same plaintiff.

(2) Final judgment on the case; AND
* Note: Any judgment is final on the merits unless it is based on:
o Lack of jurisdiction, improper venue, or failure to join an indispensable party.
* Example: Case 1 default judgment by clerk. Case 2 same P with same claim against same D. Claim precluded because it was on the merits.
* Note: If P won on one part of claim, can’t sue D in second suit on second part of claim.
* California
o Judgment final when appeals have concluded.
o Any judgment is final on the merits unless it is based on 3 areas above and the statute of limitations

(3) Same cause of action or claim

Answer 301

A

Federal view: Same transaction or occurrence
o NOTE: If legal relief in case 1, and injunction sought in case 2, the claim for legal and equitable relief is considered the same claim, and claim preclusion applies.
California: Primary rights theory
o Defined: There is a separate cause of action for each right invaded.
o Example: Car accident with physical injury and car destroyed. Case 1 is for physical injury. OK for Case 2 to just be on car.

Answer 302

A

 (1) Dismissal for lack of jurisdiction
 (2) Dismissal for improper venue
 (3) Settlement
* Exception
o After settlement, case is dismissed with prejudice

o Change of Law After a Loss or Win
 Rule: If there is a change of law, once there is a final judgment, you cannot bring a suit again.
o Note
 Bar occurs when a plaintiff loses. Merger occurs when plaintiff wins.
o Issue Spotting Tip
 Look for facts such as a prior judgment that was not based on the merits, but based on failure to join a party, jurisdiction, default judgment, consent, etc.

Answer 303

A

Collateral estoppel

Answer 304

A

The issue was already litigated in Case 1. But same issue is also presented in Case 2. If issue preclusion applies, the issue will not be relitigated in Case 2, it is deemed established in Case 2.

Answer 305

A

(1) Judgment final;
(2) Same issue actually litigated;
(3) Determination of issue essential to case 1; AND
(4) Mutuality of parties.

Federal: Judgment final when judgment rendered.
California: Judgment final when appeals have concluded.
Note: Fact triggers
o Underlying court finds P didn’t own property in dispute, but finds D was not negligent anyways
o Underlying court finds doctor is not an agent of the hospital being sued, but finds on negligence issue anyway.
o Look for facts that seem peripheral to judgment.
o Look for specific findings for the underlying judgment.
 (2) Same issue was actually litigated;
Note: Look for facts like “the court heard extensive evidence”
Note: Same issue, but usually different cause of action
NOTE: If default judgment in prior case, issue was NOT litigated

Answer 306

A

Traditional rule: Issue preclusion may be asserted only against someone who was a party (or in privity to) in the previous case.

Answer 307

A

 When a non-party wishes to use a prior judgment to avoid liability in a subsequent suit, there are often compelling reasons to do so including fairness.
 Example: If P unsuccessfully sues the employee, P’s later suit against employer will be barred by issue preclusion; if P unsuccessfully sues a person secondarily liable, can’t go and sue primarily liable person.

Answer 308

A

o Non-mutual, offensive use, OK if fair:
 Fairness factors:
* (1) Whether party to be bound had a full opportunity to litigate in case 1
* (2) Whether party to be bound had a strong incentive to litigate in case 1
* (3) Whether the party asserting issue preclusion could have easily joined in case 1
* (4) Whether inconsistent findings on the issue

o Issue Spotting Tip
 If a fact pattern includes a prior judgment or lawsuit, look for claim preclusion and/or issue preclusion.
o EXAM TIP
 Both issue and claim preclusion are frequently tested on the essay.
 Be sure to apply the facts to the general rule and to the California rule distinctions, which will often lead to a different result.

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