CA civ pro

Question 1

limited case

Answer 1

25k or less- case does NOT exceed 25k. Cannot recover more than 25k.

Limited discovery (1 depo, 35 total demands), cannot file special Demurrer, cannot get declaratory judgment, Perm Inj or determine title to land

Question 2

unlimited civil case

Answer 2

in aggregate, claims exceed 25k. unlimited recovery.
Entire case is limited OR unlimited only
(you aggregate all claims P has against D; when more than one P, if one P >25,000 it’s unlim.)

Question 3

if P files wrong type of case, amends complaint, or D cross claims— reclassification

Answer 3

party can move to reclassify, or judge do on own

to limited - judge convinced will necessarily result in 25k or less; or more than 25k is virtually impossible

to unlimited - poss verdict will exceed 25k

Question 4

what county should case be tried in?—CA venue

Answer 4

CA: Venue= the county the action can be tried in.
i) local action rule: in cases involving recovery of land, interest in land, injury to land - use county where land lies

ii) transitory actions- all other than local
a) county where D resides at start of case
b) if no D resides in CA, proper in any county
c) contract cases- where K made or performed; personal injury/wrongful death- where injury occurred

Question 5

transfer of venue

Answer 5

D must make motion before answer or include with answer
reasons:
i) reason to believe impartial trial cannot be had in original county
ii) convenience of witnesses, ends of justice promoted by transfer
iii) no judge of the county where filed is qualified to act

same forum non conveniens rule as in fed ct
*applies when properly should be in another state, country

Question 6

methods of service of process

Answer 6

any nonparty over age 18 may serve process

methods:
1) personal service- anywhere in the state
* corporations: leave with registered agent; if corporate officer serve personally or to someone apparently in charge at her office during work hours

2) substituted service- only if you cannot serve D by personal service with reasonable diligence
a) usual abode or mailing address
b) leave with competent member of household who is at least 18 years
c) person you leave with must be informed of contents
d) process must also be mailed to D by 1st class mail
* effective 10 days after mailing

3) service by mail
a) summons, complaint, acknowledgment form mailed
b) D must return w/in 20 days.
* effective once returned

4) service by publication
a) must try all other ways first
b) P’s attorney must execute affidavit

Question 7

is D immune from service if he is in state to testify at another trial?

Answer 7

No.

Question 8

frivolous litigation

Answer 8

21 day safe harbor both when judge and parties give notice of violation

Question 9

complaint

Answer 9

1) must state facts for each element of the cause of action in plain and concise language + demand for judgment for relief pleader claims entitled to
BUT SPECIFICITY- fraud, civil conspiracy, tortious breach of K
2) make demand for judgment for the relief P claims to be entitled to
3) must state an amount of damages, whereas do not need to in fed ct
EXCEPT- personal injury and wrongful death cases
and can’t state amt of punitive damages

**need not plead SMJ (but do in fed ct)

*CA IS CODE PLEADING; FED IS NTC

Question 10

if D defaults in a personal injury or wrongful death case

Answer 10

P must serve a statement of damages on the defendant

Question 11

naming fictitious defendants in a complaint

Answer 11

may name the D as a “Doe” defendant as long as genuinely unaware of the D’s identity
-must state COA against the Doe

Question 12

D’s response***

Answer 12

1) answer- deny or admit allegations; if affirmative defense raised, make sure to state facts as in complaint

2) general demurrer-
a) fails to state facts sufficient to constitute a cause of action

3) special demurrer-
a) lack of legal capacity
b) another case b/w the parties

Question 13

attacking service of process or personal jurisdiction

Answer 13

• motion to quash service of summons.

- must be made before or with demurrer, answer, or motion to strike

Question 14

timing of forum non conveniens motion

Answer 14

must be before demurrer or motion to strike

can be after an answer

Question 15

motion to strike

Answer 15

-court strikes irrelevant, false, or improper matter
-Anti SLAPP: deterring strategic lawsuits brought against public participation (exercise of 1st Amend rights)
P must show: COA arose b/c D engaged in protected 1st Amend activity
Then: burden then shifts to P to show probability of winning on the merits
BUT D shouldn’t raise this if P is enforcing a public right, or the suit is truly in public interest

if D wins- can sue in malicious prosecution

Question 16

claims by defendant

Answer 16

counterclaims are filed in a separate document from the answer called cross claim
before or at same time as answer

same rules re compulsory, permissive

cross complaint can be filed against co party
must arise from same T/O; always permissive

cross complaint against TPD (impleader)

Question 17

amending a pleading

Answer 17

• P may amend as a matter of course before D files demurrer
• after demurrer but before hearing: any party can amend once
• parties may also seek leave to amend

relation back for claims same as in fed ct
Parties: must be ignorant of identity of Doe defendant and have pleaded it in original complaint
-original complaint needed charging allegation
-must add new D within 3 years of filing

Question 18

depositions

Answer 18

no time limit; fed is one day of 7 hours

no limit on number; fed is 10 unless parties agree

Question 19

interrogatories

Answer 19

form interrogatories by judicial council

own drafted interrogatories- can’t use >35, unless serve a declaration supporting need for more

Question 20

requests to produce and nonparties

Answer 20

in fed court can send to nonparty + subpoena

in CA, can’t do that- have to do deposition + subpoena duces tecum

Question 21

physical exam

Answer 21

one exam is allowed without court order in personal injury cases
beyond that, or in other cases, need court order as in fed ct

Question 22

discovery in limited case vs. unlimited

Answer 22

limited- one depo; 35 total of interrogs, inspection demands, RFA combined
beyond that need court order

unlimited- generally same as federal

Question 23

what can be discovered

Answer 23

anything reasonable likely to lead to discovery of admissible evidence
- relevant to subject matter of lawsuit

**CA constitution right of privacy- balance need v. P’s privacy right

privileges- work product: only prep by lawyer or lawyer’s agent

Question 24

expert witnesses

Answer 24

-any party may request the simultaneous exchange of expert witness info
if request made:
-must give list of experts to be called, declare nature and substance of testimony, and expert’s qualification

Question 25

violations of discovery rules- enforcement

Answer 25

1) parties must meet and confer
* sanctions if you go to court without doing
2) then seek court order

• CA prohibits misuse of discovery tools to make abusive motions (monetary sanction, establishment order, refusal to allow party to support position with evidence, strike pleadings, default judg)
• party may get protective order to protect himself from undue burden, expense, harassment

Question 26

intervention

Answer 26

• like fed ct.

- requires applicant to have an interest in matter of the litigation- but must be direct and immediate

Question 27

interpleader

Answer 27

CA- unclear if you as the stakeholder can claim you own the property; fed you can

Question 28

class action

Answer 28

• question of a common or general interest of many people
• impracticable to bring them all before court

minimum requirements to certify
ascertainable class
well-defined community of interest
i) common questions of law or fact predominate
ii) class action device will result in substantial benefits to the parties and court
iii) class representative will adequately represent

Question 29

class action notice in CA

Answer 29

publication rather than individualized
court decides who will pay for notice (fed ct the rep pays)
either limited or unlimited like any other case
-class claims aggregated to determine amt in controversy

Question 30

involuntary dismissal in CA

Answer 30

• discretion to dismiss if case doesn’t go to trial w/in 2 years of filing;
• MUST dismiss if hasn’t w/in 5 (or process not served w/in 3)

Question 31

other ways to dismiss

Answer 31

1) MSJ- same std as in fed
- moving party must serve separate statement of material facts he claims to be undisputed, with supporting evidence for each fact. if he doesn’t court can deny MSJ
- opposing party then must indicate facts he believes are in dispute, supporting ev for ea.

2) dismissal

Question 32

recovery

Answer 32

• limited case- can’t exceed $25,000

- otherwise can recover whatever the ev supports

Question 33

jury trial

Answer 33

equity cause of action facts tried FIRST
jury then decides facts on law cause of action

jury verdict must be unanimous

12 jurors

6 peremptory challenges
unlimited challenges for cause

Question 34

motion for directed verdict

Answer 34

JMOL in fed court: reasonable people could only reach one conclusion

Question 35

judgment notwithstanding the verdict

Answer 35

renewed judgment as a matter of law equiv.
need not have moved for directed verdict

must be before judgment entered
or 180 days after entry of judgment

Question 36

remittur and additur to avoid new trial

Answer 36

for both: judge finds damages award shocks conscience
remittur: judge gives P a choice b/w reduced damages set by court or new trial

additur: judge gives P a choice b/w higher damages set by court or new trial

Question 37

interlocutory review

Answer 37

order granting a motion to quash service of summons
order granting a dismissal or stay for FNC
order granting new trial
order denying JNOV
order granting, dissolving, denying injunction

Question 38

extraordinary writ

Answer 38

writ of mandate- when an issue is not otherwise appealable, this writ compels a lower court to do something the law requires
writ of prohibition- compels lower court not to do something the law doesn’t allow