CA Civ Pro

Question 1

PJ - Two step analysis

Answer 1

1. State statute authorizing PJ over the defendant
2. Exercise of PJ must be constitutional (due process)

Question 2

In Personam Jurisdiction

Answer 2

Required to impose a personal obligation on the defendant

Question 3

Superior Court

Answer 3

Trial court in California
Each of the 58 counties has one Superior Court
Has general subject matter jurisdiction - can hear almost any civil case
Cannot hear - cases arising under some federal law (patent infringement, bankruptcy, some federal securities, and antitrust claims)

Question 4

Different Classification of cases within the Superior Court

Answer 4

Limited Civil Case
Unlimited Civil Case
Small Claims Cases

Question 5

Limited Civil Case

Answer 5

Civil case in which the amount in controversy does not exceed $25,000
Limited discovery, cannot file a “special demurrer,” and have expedited jury trial.
Cannot grant a permanent injunction, declaratory judgment, or determine title to land.
No claimant can recover more than $25,000

Question 6

Unlimited Civil Case

Answer 6

Plaintiff sues to determine title to lands of seeks general equitable relief (Permanent injunctions and declaratory relief)
If damages sought, must exceed $25,000

Question 7

Small Claims Cases

Answer 7

Heard in small claims division of the Superior Court
Amount in controversy for small claims cases - $10,000 or less and if the plaintiff is an entity it is $5,000 or less.

Question 8

Plaintiff Initially Determines the Classification

Answer 8

If P files limited case - note classification in caption
If unlimited case - does not have to note

Question 9

Reclassification

Answer 9

If a case is misclassified or if subsequent events make it clear that the original classification should be change - court does not lose subject matter jurisdiction
Automatic - P amends complaint in a way that changes classification the clerk of court will reclassify the case
On motion - A party can move to reclassify, or the court can reclassify on its own motion.
When the ct. reclassifies on its own mtn. the ct. must give notice to all parties and hold a hearing - does not consider merits of the case. Court can consider materials beyond the pleadings - must consider juridical arbitration award.
Unlimited to limited: reclassify okay if (1) necessary result in verdict $25,000 or less (2) more than $25,000 is virtually unobtainable
Limited to unlimited: Reclassify okay if possibility that the verdict will exceed $25,000

Entire case is unlimited or limited
At least one P’s claim must meet the unlimited requirements
P may aggregate claims to satisfy the amount in controversy for an unlimited case.

Question 10

Local Action

Answer 10

Case for recovery of land, determination of an interest in lan, or to recover for injury to land
Venue - where land lies

Question 11

Transitory Actions - venue

Answer 11

One that’s not a local action
General rule: venue is okay in a county where any defendant resides when the case is filed

Question 12

Contract Cases - venue

Answer 12

Venue is also OK in the county where the contract was entered into or to be performed

Question 13

Personal Injury or Wrongful Death Cases - venue

Answer 13

Venue is also OK in the county where injury occurred

Question 14

Corporation or unincorporated business - venue

Answer 14

D is a corporation venue is OK in the county where (1) PPB (2) it entered into or is to perform a K or (3) the breach occurred or liability arises.
D is an unincorporated business - venue is OK in county of PPB if that is on file with Secretary of State - otherwise venue is where any member or partner resides

Question 15

Against a nonresident of CA - Venue

Answer 15

All defendants are nonresidents of CA - venue is OK in any county
If there is a CA resident D venue must be proper as to him

Question 16

Mixed cases - P joins D’s or types of relief that call for different venues

Answer 16

Rule applies to the main relief sought is used

Question 17

Transfer of Venue

Answer 17

State ct cannot transfer to anothers state co
CA fed ct can to another federal district court

Question 18

Original Venue Improper

Answer 18

D can move
Mtn. mist be made with or before the answer, demurrer, or mtn. to strike

Question 19

Original Venue Proper - court may on motion transfer if:

Answer 19

1. Reason to believe impartial trial cannot be hand in the original venue
2. Convenience of witnesses and ends of justice would be promoted
3. No judge is qualified to act

If the court grants the motion under this statute it transfers to a county on which the parties agree

Question 20

Forum and Venue Selection Clauses

Answer 20

CA Cts. enforce “reasonable” forum selection classes that call for the action to be trial in another state
Venue selection clauses will be upheld only if the chosen venue would otherwise have been permissible under an applicable statute.

Question 21

Incovenient Forum (Forum Non Conveniens)

Answer 21

Interest of substantial justice an action should be heard in a forum outside of CA
Dismissal or stay same factors as fed. ct.
May do so on conditions

Question 22

Service of Process

Answer 22

D must be served with process (summons and copy of complaint)
Provides D notice of the action - required by the due process clause
Nonparty - 18 may serve process

Question 23

Methods for serving process inside CA

Answer 23

Personal service: Delivering to D anywhere in CA (same as fed)

Substituted Service: Service on another person at D’s usual place of adobe. (Diff. from Fed. Ct.)
(1) May serve individual if personal service cannot with reasonable diligence be had
Personal service must first be attempted.
(2) Competent member of the household, at least 18
(3) Person must be informed of the process’s contents
(4) Must also be mailed first class, postage, prepaid to D
effective 10 days after mailing

Service by Mail
Summons, complaint, 2 copies of acknowledgment, self addresses stamped envelop addressed to P
D has 20 days to return the form
Deemed completed when D executes the waiver
Must have the D return the acknowledgment form

Question 24

Corporation or other business entity served

Answer 24

Agent for service of process or an office or general manger
Agent - personally serve or someone apparently in charge at her office

Question 25

Service by Publication

Answer 25

Affidavits from P’s attorney showing D cannot be served and demonstrating P’s attorney used reasonable diligence

Question 26

Serving Process Outside CA but in U.S.

Answer 26

1. Any methods allowed for in state service
2. Mail, postage, prepaid, return receipt requested
   Deemed effective on 10th day after mailing
   Still have to show PJ exists

Outside of U.S. same as fed.

Question 27

Pleadings - Frivolous Litigation

Answer 27

1. Mirrors Fed. Rule 11 - one exception 21 day safe harbor rule, allows to withdraw an offending pleading on motion and ct. raises on its own
2. Party or attorneys party pay expenses & AF’s incurred because bad faith or frivolous tactics in litigation
   Mtn. by ct. or party & opportunity to be heard
   21 day safe harbor rule applies

Frivolous means - without merit

Question 28

Complaint

Answer 28

Fact Pleading
Contents of complaint - statement of facts, demand for JUT/relief (pleader claims to be entitled to)
Needs not allege SMJ
Limited - state in caption

Question 29

Pleading Damages

Answer 29

If P seeks damages - generally must state the amt. claim
EXCEPTION
1. Personal injury or wrongful death cases
2. Punitive Damages
D requests statement of damages: 15 days P must provide and if do not within 15 days D can move for ct. order
P must serve SOD on D before taking D’s default

Question 30

Heightened Pleading

Answer 30

Circumstances constituting fraud must be pleaded with particularity

Question 31

Fictitious Defendants

Answer 31

Genuinely unaware of identity of D - Doe
Allege she is unaware of D’s true identity and state cause of action against Doe

Question 32

Verified Pleadings

Answer 32

Signed under oath by the party can be treated as evidence for summary JUT

Question 33

Defendant’s Response

Answer 33

D must respond in 30 days after service of process is deemed complete

Question 34

General Demurrer

Answer 34

A demurrer based on a failure to state facts sufficient to constitute a cause of action - motion to dismiss for failure to state a claim
Ask - if these facts were true would the P win?
yes - demurrer overruled
no - sustained

Question 35

General Demurrer

Answer 35

A demurrer based on a failure to state facts sufficient to constitute a cause of action - motion to dismiss for failure to state a claim
Ask - if these facts were true would the P win?
yes - demurrer overruled
no - sustained
Considered a pleading

Question 36

Special Demurrer

Answer 36

Assert Defenses (minor)
can raise in his answer as affirmative defenses
does not raise by demurrer or answer then waive
Ct. treats allegations of fact as true and limits assessment to what’s in the complaint considered a pleading
Not available in limited civil cases

Question 37

Rules about Demurrers

Answer 37

Beforing filing demurrer must meet and confer at least 5 days prior cannot meet - automatic 30 day extension to answer or demur to get exertion D must file and serve DEC under oath that a good faith effort to meet and confer was made and stating why could not
if do meet and still files must include DEC under oath that parties met and couldn’t resolve or other party failed to meet and confer in good faith
D must raise all matters in the demurrer - D cannot demur to amend complaint on grounds that were available to attack the first complaint

Question 38

Motion to quash summons

Answer 38

1. lack of PJ
2. Improper Process
3. Improper service of process

Ct. denies mtn to quash D must plead within 15 days

Appellate review - mtn. to quash - writ of mandate

Question 39

General Appearance

Answer 39

Constitutes consent to PJ
MTN should be made before or with demurrer, answer, or mtn. to strike
General appearance made - 3 are waived
Cannot file answer asserting affirmative defense of lack of PJ
can file mtn to quash service of summons at same time as a demurrer, answer, or mt. to strike - that is not a general appearance

Question 40

Motion for Inconvenient Forum (Forum Non Conveniens) - Timing

Answer 40

Waived if it is raised after a demur or motion to strike

Question 41

Motion to strike

Answer 41

Strike irrelevant, false, or improper matter

Question 42

Anti-SLAPP Motion to Strike

Answer 42

About strategic lawsuit against public participation
Shifts burden onto P to show probability of winning the case on the merits
Public participation
Motion should not be made if the P sues solely in the public interest or on behalf of the general public

Question 43

General Denial

Answer 43

D denies each and every allegation in P’s complaint

Question 43

General Denial

Answer 43

D denies each and every allegation in P’s complaint

Question 44

Affirmative Defenses

Answer 44

State the ultimate facts sufficient to constitute an affirmative defense

Question 45

Verified compliant - answer has to be

Answer 45

Verified Answer

Question 46

Answer - Damages

Answer 46

Answer can’t have a demand for recovery against the plaintiff - the defendant must file a cross-complaint

Question 47

Answer Timing

Answer 47

No later than 30 days after service of process is deemed complete D must answer, demur, make one of motions noted

Question 48

Claims by Defendant - Cross Complaint

Answer 48

Separate Doc
Against P - filed before or same time as the answer
Same T/O as P’s cause of action - compulsory
Does not arise same T/O not compulsory

Cross-complaint against co-party - anytime before ct. has set a trial date
Co-party, same t/o, never compulsory

Cross complaint 3rd party - any time before ct. has set a trial date - never compulsory

30 days to respond

Not yet appeared - cross complaint serve with a summons

Question 49

Right to Amend

Answer 49

P has right to amend before D files an answer or demurrer
Demurrer filed than before hearing on the issue P must file amendment complaint no later than the date for filing opposing to the demurrer

Any party may seek leave to amend

Question 50

Granting of Demurrer or motion to strike

Answer 50

Ct. sustains a demurrer or grant mtn. to stipe usually do so with leave to amend - if they do not then P cannot try again

Can only be 3 amended complaints unless claimant shows additional facts to be pleaded to cure the problem

Question 51

Relation Back and Fictitious Defendants

Answer 51

Filing date for amendment complaint considered filing date of the original - SOL purposes

All 3 must be met
1. Original filed before SOL ran & contained charging allegation against fictitious D
2. P was genuinely ignorant to identity of D
3. P pleaded ignorance in original complaint

if all of these are met, and if P substitutes the true D within 3 yrs of filing, it relates back to the original complaint’s filing date

Question 52

Discovery tools

Answer 52

No required disclosures in CA state ct. parties can stipulate
P must get ct. order to take discovery from a D w/in 10 days after served with process
20 Days - D’s deposition

Question 53

Discovery - Depositions

Answer 53

State ct. no presumptive limit on number of depositions to be taken presumption depo 1 day 7 hrs

Question 54

Discovery - ESI

Answer 54

Deponent asked to produce ESI must provide 1. direct access to ESI 2. translation of ESI in a useable form

Question 55

Interrogatories

Answer 55

No limit to # of form interrogatories that can be served on other parties

Max number of special interrogatories - unlimited civil 35

More may be served w/ dec of need responding party can seek protective order

Question 56

Requests to Produce (Inspection Demand)

Answer 56

Party can specify form desired

No statutory limit on requests can be served without ct. permission in unlimited

CA doesn’t allow use of requests to produce from non partys

Nonpartys depo may be notified and saved with a subpoena a duces cecum bring things to depo

Question 57

Medical Exam

Answer 57

Ct. order required

PI - D has right to demand one physical exam - L for party can attend

Mental Exam - L can attached if ct. order

Question 58

Requests for Admission

Answer 58

Limit - 35 unlimited civil case
No limit on request for genuine of documents

Question 59

Discovery in limited cases

Answer 59

P - serves process includes completed form questionnaire
One depo may be taken
35 total interrogatories, inspection demands, and requests for admission
Shortly before trial party can request opponent disclose witnesses and evidence intends to produce at trial

Question 60

Supplemental Discovery Unlimited Cases

Answer 60

No standing duty to supplement discovery responses as long as info given was accurate and complete when given
Party must seek supplement discovery - 2 before trial date set and 1 after

Question 61

Scope of Discovery

Answer 61

Standard - relevant to subject matter involved in pending action

Question 62

Discoverable broader than admissible

Answer 62

Discoverable - reasonably calculated to lead to the discovery of admissible evidence
Info requested need not be admissible

Question 63

Privilege

Answer 63

Discovery request intrude on work product or privileged matter - responding party must object with particularity or risk waiver

Question 64

Privacy

Answer 64

CA constitution recognizes right of privacy - can limit discovery
Ct. balance need of information against need for privacy

Question 65

Work Product

Answer 65

Generated by L or her agent
Writing that reflects L’s impressions, conclusions, opinions, or legal research
Pro Se - Work product if generated by an attorney

Question 66

Expert Witnesses

Answer 66

Trial date set - any party may request simultaneous exchange of expert witness infor
Declare nature and substance of testimony and experts qualifications
May then take experts depo

Question 67

Sanctions

Answer 67

Anyone L or party who misuses discovery process notice and change to be heard
1. monetary sanctions
2. an establishment order
3. refusal to allow party to support its position with evidence at trial
4. striking pleadings
5. dismissing the P’s case
6. Entering default JUT

start with money

Discovery misuse - indicate type of sanctions sought

object to EDI - intensity cagey of sources not accessible

Question 68

Impleader

Answer 68

Joins someone new (3rd party D)
Who may owe him indemnity or contribution asserted in a cross-complaint CA

Question 69

Interpleader

Answer 69

Stakeholder in possession of property but owns several claimants want, Sues them interpleader

Question 70

Class Action

Answer 70

Ascertainable class
Well-Defined community of interest
Common question predominates
Representative is adequate
Class will result in substantial benefit to parties and court
Not Separate types of classes
Notice may be given by publication
Individual notice not required
Cost of notice -> ct. will decide, Rep, D, or Shared
Class members who d not opt out are bound by the JUT
Don’t require ct. to appoint class counsel
Ct. must approve settlement of dismissal
AOC is aggregated

Question 71

Voluntary Dismissal

Answer 71

P can move to dismiss anytime before trial starts
Ct. Makes decision and decides prejudice or without prejudice
P moves to dismiss after trail starts -> prejudice
UNLESS
1. Parties agree otherwise
2. Ct. finds good cause to dismiss without prejudice

Question 72

Involuntary Dismissal

Answer 72

Ct. can dismiss for not bringing 2 trials within 2 yrs of trials within two years of filing
must dismiss
(1) has not been brought to trial in 5 years
(2) Process not served within 3 yrs
except when case I stayed or cannot be served

Question 73

Default and Default JUTs

Answer 73

D fails to respond to complaint within 30 days of effective date of service of process on him
Subject to default and default JUT
Cannot recover more than you asked for

Service of application - P application for default must include affidavit stating copy of app was mailed to D & D’s attorney

Question 74

When Default JUT may be entered by Clerk

Answer 74

without judge involvement

1. D made no response at all
2. Claim is on K or JUT
3. Sum certain in money
4. Not served by publication
5. P provides affidavits stating relevant facts

Question 75

Default JUT by the Ct.

Answer 75

Ct. hold hearing and discretion to enter JUT

Question 76

Setting Aside the Default or Default JUT

Answer 76

D may move to

Based on mistake, inadvertence, surprise, or excusable neglect, or because service of process did not result in actual notice to the D.

Question 77

Motion for Summary JUT

Answer 77

Same as in Fed. Ct.
Summary JUT - all causes of action in the case
Less than the whole case - summary adjudication

Special CA Procedural points
Moving party file and serve statement of material facts - claims to be undisputed and evidence

Opposing party responds indicating facts believed to be in dispute and evidence

Moving party serve papers - 75 days before hearing

Opposing 14 days

Reply by opposing - 5 days no more

Judge rules on objection to evidence

Question 78

Case Management Conference

Answer 78

Case management conference 180 days of filing of complaint

Meet and confer - case management statement

After conference - case management order

Ct. may order mandatory settlement conference - parties may request

Question 79

Sanction Failure to Comply with Rules or Orders

Answer 79

ct. may sanction party of L - failing to comply with rules or order

Sanction terming case - failure to comply was fault of the party

Question 80

Alternate Dispute Resolution

Answer 80

Reduce Congestion
Each count’s superior court has an attentive dispute resolution providing to reduct court congestion

Question 81

Judicial Arbitration

Answer 81

Arbitrator holds hearing
Rules of Evidence don’t apply
Decision becomes JUT unless party demands trial de novo - doesn’t get better result may be liable for other side costs
Have discovery rights

Contractual arbitration - FAA & State law - not product of unconscionable vacated on fraud can ask to arbitrate and confirm arbitrators decision

Question 82

Recovery

Answer 82

Trial - not limited to amt. claimed
Limited civil one $25,000 or less

Question 83

Right to Jury

Answer 83

7th amend does not apply - CA same as const.
CA - judge decides facts on equity cause of action first
CA state courts there is not jury at all beach damages are merely incidental to the equity cause of action. The center of gravity of the case is the equity cause of action. - equity clean up doctrine

Requirements for jury demand - announce demand for jury
Oral or writing
at time case is set for trial or within 5 days after notice of setting the trial

12 jurors unless parties agree in open ct.

alternate replaces or trial continues unless party objects

Question 84

Jury Selection

Answer 84

Peremptory challenger may not be used on the basis of “race, color, religion, sex, national origin, sexual orientation, or similar grounds.” which a little more broader than in fed. ct.

Question 85

Verdict

Answer 85

3/4 of jury
9 of 12

Question 86

Motion for Directed Verdict and Motion for Nonsuit

Answer 86

Reasonable people could not disagree as to the result - motion for directed verdict

If the defendant moves for this at the close of the P’s opening statement or at the close of the P’s evidence at trial, it is often called a motion for nonsuit

Question 87

Motion for JUT not withstanding the Verdict

Answer 87

the standard is the same as directed verdict.

So the ct. is saying the jury reached a conclusion reasonable people could not have reached

Timing - the moving party must file notice of intention to move either before entry of JUT or the earlier of these (1) 15 days of mailing or service of notice of entry of JUT or (2) 180 days after the actual entry of JUT

Must the party moving for JNOV have moved for directed verdict at trial? no there is no prerequisite

Question 88

Motion for Trial

Answer 88

Same as JNOV
Bases - something convinces the judge that the parties should retry the case that is that the error complained of has resulted in a miscarriage of justice

Shocks the conscious - one grounds for new trial is excessive or inadequate damages

Excessive (remitter) or Inadequate (additur) damages

Question 89

Motion to set aside JUT

Answer 89

The motion must be made within reasonable time, not to exceed six months after entry of JUT

Question 90

Expedited Jury Trial

Answer 90

Most limited cases are subject to “mandatory expedited trial”

Unlimited cases - parties may agree to voluntary expedited trial

there are 8 jurors and 4 preemptory challenges per side in an expedited jury trial

6 of 8 jurors are needed to reach a verdict

Each side has up to 5 hrs in which to complete void dire and present its case

Parties may agree regarding how many witnesses evidence to be presented etc.

the parties may enter a high/low agreement, which sets out the D’s minimum and maximum liable for damages. The jury cannot be told of the existence terms of the high/low agreement

In a voluntary expedited jury trial the parties waive the right to appeal extend in very limited circumstances

Mandatory expedited jury trail regular appeal rights apply

Question 91

Appellate Review

Answer 91

Unlimited superior ct. - CA ct. of appeal
District of the ct. of appeal to which the county is assigned

Timing - 60 days after mailing or serve of the notice of entry of JUT or 180 days after entry of JUT if no notice is served

Appellate department of the superior ct. - where limited and small claims are appealed to

Question 92

Final Judgment Rule

Answer 92

CA follows the final JUT rule
Appeal cannot be lodged until the merits of the entire action are resolved

Question 93

Interlocutory (Non-Final) Review - statutory grounds for review

Answer 93

One denying certification of an entire class action
one framing new trial
one grain a motion to quash serve of summons
one grain a dismissal or stay of a case for forum non convenient
one denying a motion for JNOV
One grain, dissolving, or refusing to grant or dissolve an injunction; and
one directing party of attorney to pay monetary sanction of over $5,000

Question 94

Collateral Order Rule

Answer 94

The ct. of appeal may hear appeal on 1. an issues collateral to the merits of the case 2. that the trial ct. has decided finally if 3. it directs payment of money or performance of an act

Question 95

Extraordinary (or Peremptory) Write

Answer 95

If an order is not otherwise appealable the aggrieved party may seek a write of mandate (to compel a lower ct. to do something the law requires) or prohibition (to stop a lower ct. form doing something the law does not allow)

The party seeking the writ must demonstrate 1. that she will suffer irreparable harm if the write is not issued. 2. the normal route or appeal from final JUT is inadequate 3. she has a beneficial interest in the outcome of the writ proceeding

if party makes the showing she is not automatically entitled to the extraordinary writ

the decision is always discretionary with the ct.

Question 96

Preclusion

Answer 96

suppose that the JUT in case 1 has been appealed or that the time for appealing has not yet expired. Is that JUT entitled to claim or issue preclusion effect? fed yes, CA no

Question 97

Definition of Claim for claim preclusion

Answer 97

Ca follows primary rights doctrine - there is a separate cause of action for each right invaded
Personal injuries and property damage arising from the same T/O are separate causes of action under CA’s preclusion law.

Question 98

CA resolves conflict of law issues

Answer 98

Tort Action - governmental interest approach.
1. first determines whether the law of the two state are identical
if they are not - ct. evaluates whether each state has na interest in the application of its law
if each has such an interest - true conflict exists and the ct. then analyses the comparative impairment to each state’s interest should the law of the other state be applied

Contract actions - choice of law clauses
if encompasses all causes of action, ct. must determine where the clause is enforceable by examining the chosen state’s law has a substantial relation to the parties or their transition of any other reasonable basis sexists for the parities choice of law

clause is enforceable - ct. then assess whether the chosen state’s law conflicts with a fundamental CA policy

if such a conflict exists the ct. must divide whether rCA has a materially greater interest than the chosen state in the determination of the specific issue

if the K does not contain a choice of law clause or if it is unenforceable the gov. interest approach generally applies