CA Civil Procedure

Question 1

Jurisdiction of CA Courts –> In General

Answer 1

Jdx refers to the power of a ct to hear a case and render binding judgement.
—> PJ and SMJ

Question 2

Jurisdiction of CA Courts –> Subject-Matter Jdx - General

Answer 2

Classification of cases

—> Cases are sorted by the amount in controversy: (1) small claims; (2) limited; and (3) unlimited.

Question 3

Jurisdiction of CA Courts –> Types of Courts: Superior Courts

Answer 3

CA has 58 TCs knows as superior cts (one in each county).

• –> Cts of general jdx in most cases in CA
• –> Process issued by SCs extends throughout the state

Question 4

Jurisdiction of CA Courts –> Types of Courts: Appellate Division

Answer 4

The appellate division hears all appeals in limited civil cases (ie where 25k or less is at issue).

Question 5

Jurisdiction of CA Courts –> Types of Courts: Court of Appeal

Answer 5

The CoA is divided among 6 districts throughout the state.
—> In addition to having original jdx in habeas corpus, mandamus, certiorari, and prohibition proceedings, the CoA also has appellate jdx over all superior court decisions.

Question 6

Jurisdiction of CA Courts –> Types of Courts: Supreme Court

Answer 6

The CASC, like the cts of appeal, may affirm, reverse, or modify and judgment or oder appealed from the superior cts, and may direct the proper judgment or order to be entered.

• –> It also may direct a new trial or order further proceedings.
• –> CA SC has exclusive appellate jdx in death penalty cases and disbarment hearings.

Question 7

Jurisdiction of CA Courts –> Types of Courts: Motion to Transfer

Answer 7

If an action is commenced in a ct that lacks SMJ, the action will ordinarily not be dismissed, but will be transferred to a correct ct.

Question 8

Jurisdiction of CA Courts –> Personal Jurisdiction: Definition

Answer 8

PJ refers to a ct’s authority over a particular person (known as in personam jdx) or piece of property (known as in rem or quasi in rem jdx).

Same as USC Standard (International Shoe)
—> D must have such minimum contacts w/ the forum state such that jdx over him would not offend traditional notions of fair play and substantial justice

Question 9

Jurisdiction of CA Courts –> Personal Jurisdiction: In personam Jurisdiction

Answer 9

The traditional methods of exercising in personam jdx in CA are: domicile, personal service, and consent.
—> For traditional methods of jdx, no contacts are necessary for any of these

Question 10

Jurisdiction of CA Courts –> Personal Jurisdiction: Domicile

Answer 10

Ds may be automatically subject to in personam jdx by reason of:

(1) residence in CA
(2) corporate incorporation or registration in CA

Question 11

Jurisdiction of CA Courts –> Personal Jurisdiction: Personal Service (Tag Jdx)

Answer 11

Service of a summons on a D while he is physically located w/in CA est’s PJ over the D, regardless of where D domiciled.

Question 12

Jurisdiction of CA Courts –> Personal Jurisdiction: Consent

Answer 12

The D may consent to jdx by:

(1) Mistaken appearance
(2) Deliberate appearance; or
(3) Contract

Question 13

Jurisdiction of CA Courts –> Personal Jurisdiction: 2 Part Analysis for PJ

Answer 13

Long-Arm Statutes

• –> Minimum Contacts
  (1) Question of how many contacts are req’d and of what kind depends on whether the ct is attempting to assert general or specific jdx over the D
  (2) Usually found when the D:
• Travels to the state
• Sends products to the state
• Contract

Question 14

Jurisdiction of CA Courts –> Personal Jurisdiction: General Jurisdiction

Answer 14

CA cts have general jdx over a D who has suff extensive, continuous and systematic activities w/in the state such that they feel at home in CA.
—> D may be sued for any act in CA, even one unrelated to her contacts.

Question 15

Jurisdiction of CA Courts –> Personal Jurisdiction: Specific Jurisdiction

Answer 15

Where the D’s contacts w/ the state are limited, the ct has only limited jdx over cases related to those contacts.

Reqs to est specific jdx:

(1) purposeful availment
(2) a substantial nexus; and
(3) traditional notions of fair play and substantial justice

Question 16

Jurisdiction of CA Courts –> Personal Jurisdiction: Internet Cases

Answer 16

In general, for PJ to exist over a D that sells products or delivers services via the internet, the D must have intentionally conducted business w/in CA.

Sliding Scale Test
—> Active v. passive websites: passive website (where D simply posts info on a website is accessible to users in mult jdxs) generally do not confer jdx w/out more direct activity in CA

Question 17

Jurisdiction of CA Courts –> Personal Jurisdiction: In rem Jurisdiction

Answer 17

In rem jdx affords a CA ct PJ over property located in CA.

—> Results in no personal liability upon any person, but rather affects the interests of all persons in the property.

Question 18

Jurisdiction of CA Courts –> Personal Jurisdiction: Quasi in rem Jdx

Answer 18

In actions involving attachment of real or personal property as part of the relief req’d.

• –> QIR jdx does not est PJ over the owner of the property; PJ must be obtained separately to proceed.
• –> However, if another person should come in to defend an interest in the property on the merits, that person would be subject to in personam jdx.

Question 19

Jurisdiction of CA Courts –> Personal Jurisdiction: Consequences of PJ

Answer 19

If a CA ct has PJ over a D:

(1) any judgment against that D may be satisfied out of any property owned by the D;
(2) the adjudication is res judicata on the CoA (ie the action may not be tried again) and the defense of CE may be raised as to all issues upon which the judgment actually rests; and
(3) the judgment is entitled to full faith and credit in other states

Question 20

Jurisdiction of CA Courts –> Lack of Jurisdiction: Procedures for Raising Jdx’al Defects

Answer 20

Challenges to jdx may be made by:

(1) Demurrer to SMJ, in which D challenged legal sufficiency of claim before answer is filed.
- –> Note: D will be subject to PJ if he challenges PJ via demurrer.
(2) Filing a motion to quash service for lack of PJ

Question 21

Jurisdiction of CA Courts –> Lack of Jurisdiction: Appearances

Answer 21

Ds wishing to contest jdx must appear before the ct to file a protest.
—> Attacks on jdx are considered special appearances that will not subject the D to the ct’s jdx unless the motion is denied.

Conversely, a D who files an answer contesting the P’s allegations is considered to have made a general appearance that confers jdx upon the ct over the D.

Question 22

Venue and Forum Non Conveniens –> In General: Rule

Answer 22

Unless otherwise provided by law, the proper ct for trial is the superior ct in the county where any D resides at the commencement of the action.

Question 23

Venue and Forum Non Conveniens –> In General: Improper Joinder

Answer 23

Similar to fed civ pro (diff terminology)

A P may not obtain venue in a particular ct solely by joining a D who is not a proper party to the action.

Question 24

Venue and Forum Non Conveniens –> In General: Types of Actions

Answer 24

Local Actions

• –> Actions that involve real property or community property.
• –> Venue usually lies where the property is located.

Transitory Actions

• –> Actions that could occur in any location.
• –> Venue usually proper where the D is located.

Mixed Actions

• –> Both local and transitory actions.
• –> To determine venue, the ct will generally look at the main relief sought

Question 25

Venue and Forum Non Conveniens –> Other Matters: Types of Cases and Venue

Answer 25

In certain instances, venue depends on the nature of the action.

(1) Personal injury/wrongful death
- –> If an actin is for injury to person or personal property or for wrongful death from wrongful act/neg, venue is proper in the SC in either: 1. the county where the Ds (or some of them) reside at the commencement of the action; or 2. the county where the injury or death occurred.

(2) Enforcement of Child Support
- –> Actions to enforce a child support obligation should be brought in the county where the child resides.

(3) Actions on K
- –> In general, if a D has contracted to perform an obligation in any partic county, an action brought on that K may be filed in the county: 1. where the D or any D resides at the commencement of the action; 2. where the obligation is to be performed; or 3. where the obligation was entered into.

Question 26

Venue and Forum Non Conveniens –> Other Matters: No Ds in State or Residence Unknown

Answer 26

If none of the Ds reside in CA, or if the D’s residence is unknown to the P, the action may be tried in superior court in any county that the P designates in his complaint.
—> If the D is about to depart from the state, the action may be tried in the superior court in any county where either of the parties resides or where service is made.

Question 27

Venue and Forum Non Conveniens –> Other Matters: Consent

Answer 27

The D’s consent to venue is suff to allow the proceeding to continue in the ct or location where commenced.
—> Nevertheless, a D must be represented by counsel to consent to actions for certain consumer loans and unlawful detainer.

Question 28

Venue and Forum Non Conveniens –> Transfer of Venue

Answer 28

The ct may, on motion, change the place of trial in the following cases:

(1) when the ct designated in the complaint is not the proper court
(2) when there is reason to believe that an impartial trial cannot be had therein;
(3) When the convenience of witnesses and the ends of justice would be promoted by the change; or
(4) when (for any reason) there is no judge on the ct qualified to act

Question 29

Venue and Forum Non Conveniens –> Forum Non Conveniens

Answer 29

Not that diff from fed ct.

Under the doctrine, a ct may dismiss an action if in the interest of substantial justice, the action should be heard in a forum outside of CA.

• –> Test is whether the action may be fairly and more conveniently litigated in a diff venue.
• –> In granting this motion, CA cts may stay the action in CA if they remove it to another jdx, but are also permitted to dismiss the action.

Ct must conclude that:

(1) a suitable alternative forum exists in which a valid judgment may be obtained; and
(2) a balancing of public interests of each state and private interests of each party tips in favor of trial in the alternative forum.
- –> Public factors: include ct congestion, obligations on unrelated jurors, amount of local interest, and ct familiarity w/ the law
- –> Private factors: include ease of access to proof, availability of witnesses, and distance from the property at issue

Question 30

Venue and Forum Non Conveniens –> Choice of Law and Conflicts of Law

Answer 30

If a K involves a choice of law provision, cts will usually enforce the provision, so use basic K principles to determine if the K itself is enforceable.

If it is a tort or some other action involving more than 1 state, CA follows the impairment of govt’l interest approach.

(1) Ct will determine whether the conflict is true or false
(2) Assuming conflict exists, the ct will apply the comparative impairment inquiry.
- –> The ct will not select the most worthy policy, but will instead decide whether a state’s interest would be more greatly impaired if its law were subordinated to the policy of the other state and not applied

Question 31

Pleadings and Service of Process –> Pleadings: In General

Answer 31

The pleadings allowed in CA civil actions are:

(1) complaints
(2) demurrers
(3) answers
(4) cross-complaints

As under the federal rules, all allegations made in a pleading will be liberally construed, w/ a view to achieving substantial justice between the parties.

Question 32

Pleadings and Service of Process –> Pleadings: Fact Pleading

Answer 32

Fact (or code) pleading req’s a claimant to plead a statement of facts constituting the cause of action, in ordinary and concise language.

Question 33

Pleadings and Service of Process –> Pleadings: Signing of Pleadings and Motions

Answer 33

Every pleading, petition, written motion, or other similar paper must be signed by at least one attny of record in the attny’s individual name.

Question 34

Pleadings and Service of Process –> Pleadings: Sanctions

Answer 34

By presenting to the ct a pleading, petition, written notice of motion, or other similar paper, an attny or unrepresented party is certifying that to the best of his knowledge, all of the following conditions are met:

(1) it is not being presented primarily for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation);
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law, or the est’ment of a new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of info or belief.

A party may serve any pleading by mail if:

(1) the other party resides or has an office at a place where there is delivery service by mail; or
(2) where the person making the service and the person on whom service is to be made reside or have their offices in places between which there is a regular communication by mail.

Question 35

Pleadings and Service of Process –> Complaints and Cross-Complaints: Complaints

Answer 35

Contents

• –> A complaint or cross complaint must contain:
  (1) a statement of ultimate facts supporting each element of each cause of action, in ordinary and concise language; and
  (2) a demand for judgment for the relief to which the pleader claims to be entitled.

Damages

• –> In general, complaints that demand the recovery of money damages must state the amount demanded, except in actions to recover actual/punitive damages for personal injury/wrongful death.
• –> In personal injury/wrongful death, damages are quantified in a separate statement of damages.

Question 36

Pleadings and Service of Process –> Complaints and Cross-Complaints: Cross-Complaints

Answer 36

Different that fed civ pro.

In General

• –> The terms counterclaim and cross claim are not longer used in CA
• –> A D may file a separate doc called a cross-complaint

When Compulsory

• –> Failure to allege a compulsory cross complaint will result in precluding the party from subsequently asserting the related cause of action in another lawsuit.
• –> Generally, a D must allege in a cross-complaint any related cause of action he has against the P
• –> The issue most often arises in situations w/ mult Ds/Ps, complaining co-Ps or co-Ds are liable.

When Permissible

• –> A cross complaint is permissible when the CoA asserted in the cross complain either arises out of the same transaction, occurrence, or series of transactions or occurrences set forth in the complaint; or asserts a claim, right, or interest in the property or controversy which is the subject matter of the CoA brought against the party seeking to file the cross complaint.
• –> A D can bring any CoA he has against the P even if the CoA is not related to the subject matter of P’s complaint; such a CoA would not be compulsory, but is permissible.

Question 37

Pleadings and Service of Process –> Service of Process: Rule and Definitions

Answer 37

Timing

• –> The summons and complaint must be served on a D w/in 3 years after the action is commenced against the D.
• –> Exception: the case is assigned to Fast Track, which shortens the period of service to 60 days.

By Whom Made
—> A summons may be served by any person 18 years and not a party to the action

Question 38

Pleadings and Service of Process –> Service of Process: Manner of Service

Answer 38

Manner of Service

(1) Personal delivery
- –> may be served by personal delivery of a copy of the summons and complaint to the person to be served

Substituted service

• ——–> If a D cannot be personally served, the P may leave a copy of the summons and complaint at the D’s dwelling, usual place of abode, usual place of business, or usual mailing address and mail a follow-up copy.
• ——–> Limitations: summons and complaint are left in the presence of a competent member of the household, or a person apparently in charge of the office, place of business, or usual mailing address (other than a post office box)

(2) Service on Corps
- –> A summons and complaint may be served on a corp by delivering a copy:
1. to the person designated as the agent for service of process under a statutory provision; or
2. to the president or other head of the corp, a VP, a secretary, treasurer, general manager, or person authorized to receive service

Substituted Service
—> In lieu of personal deliver, a summons and complaint may be served by leaving a copy at the company’s office during usual office hrs with the person apparently in charge of the office

(3) Service by Mail
- –> A summons may be served by mail, but such service is only effective if the D acknowledges receipt.
- –> A copy of the summons and complaint must be mailed along w/ an acknowledgment.

(4) Service Outside State
- –> A summons and complaint may be served on a person outside CA in any manner provided for in-state service, or by sending a copy of the summons and complaint to the person to be served by first class mail

(5) Service by Publication
- –> A summons may be served by publication if it appears to the satisfaction of the ct in which the action is pending that the party to be served cannot w/ reasonable diligence be served in a better manner
- –> Service by publication most commonly seen where CoA is in rem or quasi in rem, and the P is unable to locate the owner of the property

Question 39

Pleadings and Service of Process –> Service of Process: Motion to Quash Service

Answer 39

A challenge to the validity of service of process must be made w/in the time permitted for a responsive pleading.
—> Any objection to the validity of service is waived if the D makes a general appearance in the action.

Question 40

Pleadings and Service of Process –> Methods of Responding to Pleadings: Answers

Answer 40

The answer is a pleading that responds to the allegations in the complaint (or cross complaint).

The answer to a complaint or cross complaint must contain:

(1) the general or specific denial of the material allegations of the complaint or cross-complaint that are controverted; and
(2) a statement of any new matter constituting a defense, often called an affirmative defense (or defense waived)

Affirmative Relief
—> As opposed to affirmative defenses, affirmative relief may not be claimed in the answer, but must be sought by means of a seperate cross-complaint.

Denials
The denials of the allegations that are controverted may be stated by:
(1) General denial
—> a general denial denies every allegation in the complaint w/ a single statement
(2) reference to specific paragraphs or parts of the complaint
—> General denial is impermissible, and specific paragraph references are req’d (where the complaint is verified) unless it is subject to the provisions for economic litigation

Question 41

Pleadings and Service of Process –> Methods of Responding to Pleadings: Answers - Default Judgment

Answer 41

If a D fails to respond to a pleading, the P can move for a default judgment.

When Granted

(1) The ct clerk must first enter the default of the D served in the action (by means other than publication)
(2) Once the default is entered the P may seek default judgment
(3) Prior to entry of the default judgment, a separate prove-up hearing must be held to est the amount of damages on default using the amount of relief sought if served on the D, or other means to determine the proper amount of damages

Effect
—> Entry of default terminates the D’s opp to file a pleading, even if belatedly.

Setting Aside DJ

• –> Relief usually available upon showing of:
  (1) Mistake
  (2) Inadvertance
  (3) Excusable neglect; or
  (4) Surprise (lack of actual notice)
• –> The D must be able to show some actual reason for not having received the notice, something that excuses the D’s failure to appear, and not just that the D chose not to do anything

Question 42

Pleadings and Service of Process –> Methods of Responding to Pleadings: Answers - Demurrers

Answer 42

General Demurrer (like fed 12b6 motion)

• –> CA practice permits a general demurrer for failure to state a claim, if filed w/in 30 days.
• –> Prior to filing a demurrer, parties must meet and confer at least 5 days before responsive pleadings are due

Other Objections to Complaints

• –> The party against whom a complaint or cross complaint has been filed may object to the pleading, by demurrer or by answer, on any one or more of the following grounds:
  (1) Pleading is uncertain (eg ambiguous and unintelligible)
  (2) Lack of legal capacity to sue; or
  (3) Defect or misjoinder of parties

Amendment
Cts are very likely to permit a party to amend the pleadings to resolve any errors used as grounds for a demurrer.
—> But no more than 3 amendments are allowed absent an order from the ct

Question 43

Pleadings and Service of Process –> Amendment of Pleadings: As of Right

Answer 43

Any pleading may be amended once as a matter of course before the answer or a demurrer is filed.
—-> A pleading may be amended after this point at the ct’s discretion, but almost always unless the D can show some kind of harm in permitting the amendment.

Question 44

Pleadings and Service of Process –> Amendment of Pleadings: Based on Variance between Pleadings and Proof

Answer 44

A ct may order a party to amend a pleading when a material variance exists between the pleading’s allegations and proof presented to the ct.

Question 45

Pleadings and Service of Process –> Amendment of Pleadings: Permissive Amendments

Answer 45

The ct may allow a party to amend a pleading by adding or striking he name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, and may extent the time allowed for an answer or demurrer as a result.

Question 46

Pleadings and Service of Process –> Amendment of Pleadings: Supplements

Answer 46

The P and D may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case that occurred after the original complaint or answer was made.

Question 47

Pleadings and Service of Process –> Statutes of Limitations: Time and Types

Answer 47

One Year
—> Libel, slander, FI

Two Years

• –> Assault, battery, personal injury, wrongful death
• –> Unwritten Ks or rescission of unwritten Ks

Three Years

• –> Statute-created liability
• –> Trespass/Injury/Taking of real property
• –> Fraud/mistake
• –> Injury or death caused by health care prof’s neg

Four Years

• –> Ks, notes, other written instruments
• –> Accounts
• –> Rescission of written Ks
• –> Lessee’s breach of written lease and abandonment of property

Five Years
—> Recovery of real property or adverse possession

Six Years
—> UCC Art III

Question 48

Pleadings and Service of Process –> Statutes of Limitations: Accrual

Answer 48

Car Accident or injury
—> The CoA accrues when the wrongful act occurs

Delayed Discovery Rule

• –> Under this CA rule, the SoL begins to run when the P discovers, or has reason to discover, the CoA.
• –> Occurs when the P at least suspects, or has reason to suspect, a factual basis for the CoA as to any D.

Question 49

Joinder and Substitution of Parties –> Joinder of Parties: Mandatory Joinder of Parties

Answer 49

A person who is subject to service of process and whose joinder will not deprive the ct of jdx over the SM of the action must be joined as a party in the action if in his absence, complete relief cannot be accorded among those who are already parties.

If such a party has not been joined in the action:

(1) the ct must order that he be made a party;
(2) the ct must determine whether in equity and good conscience the action should proceed among the parties before it

Question 50

Joinder and Substitution of Parties –> Joinder of Parties: Permissive Joinder of Parties

Answer 50

Multiple persons may join or be joined in the same action if they assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, and if any question of law/fact common to all these persons will arise in the action.

Question 51

Joinder and Substitution of Parties –> Class Actions: Variance from Federal Rules

Answer 51

Variance from FRCP = CA does not have a detailed class action statute or rule comparable to FRCP 23.

For authority to certify class actions, CA cts rely on CCP 382, which permits cert where:

(1) the question is one of a common or general interest of many persons, or when the parties are numerous; or
(2) it is impracticable to bring all of the diff Ps’ actions before the ct

Question 52

Joinder and Substitution of Parties –> Special Forms of Joinder: Interpleader

Answer 52

An interpleader is a device in a K or property action that enables a party (the stakeholder) against whom conflicting claims are asserted w/ respect to the same property or debt to join all adverse claimants in the same action and req them to litigate among themselves to determine who has the valid claim to the debt or property.
—> AKA = Have thing lots of ppl want, ct takes things and decides who should get it

Question 53

Joinder and Substitution of Parties –> Special Forms of Joinder: Intervention

Answer 53

An intervention takes place when a 3rd person is permitted to become a party to an action or proceeding between other persons who allegedly do not suff’ly protect the interests of the 3rd party.
—> AKA someone is not in the lawsuit and they want to be a part of it

As of Right

• –> CA rule on intervention as of right nearly identical to FRCP.
• –> In CA, if the person seeking intervention claims an interest relating to the property or transaction, and the disposition of the action may impair or impeded his ability to protect that interest, the ct must permit him to intervene.

Permissive Intervention
—> The CA rule req’s that the intervening 3rd party have an interest in the matter under litigation.

Question 54

Joinder and Substitution of Parties –> Special Forms of Joinder: Impleader

Answer 54

FRCP permits a D to bring in a 3rd party who is not already a party to the action but may ultimately be liable for the P’s claim.

• –> AKA bring in another person to help pay P
• –> Ex: insurance co has duty to indemnify the D for P’s damages

Question 55

Joinder and Substitution of Parties –> Frivolous Pleadings and Vexatious Litigation: Truth in Pleading

Answer 55

CA only rule (not FRCP)

Judges may impose sanctions for tactics that are frivolous or intended to cause delay.

Question 56

Joinder and Substitution of Parties –> Frivolous Pleadings and Vexatious Litigation: Vexatious Litigation

Answer 56

CA only rule (not FRCP)

Cts may enter an order req’ing a vexatious litigator to obtain leave of ct before he is permitted to file new claims in any CA ct if the person has:

(1) brought 5 unmeritorious cases in the preceding 7 years;
(2) engaged in repeated re-litigation against the same D.

Question 57

Discovery –> In General: Scope

Answer 57

Unless otherwise limited by ct order, any party in CA may obtain discovery regarding any matter (not privileged) that is admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.
—-> Discovery rules are to be liberally construed

Question 58

Discovery –> In General: Methods of Discovery

Answer 58

Any party may obtain discovery by one or more of the following methods:

• oral and written depositions
• interrogatories to a party
• inspections of docs, things, and places
• physical and mental examinations
• req’s for admissions; and
• simultaneous exchanges of expert trial witness info

Question 59

Discovery –> Case Management Conferences

Answer 59

Under the Fast Track rules in CA, judges are responsible for actively managing and supervising the pace of litigation from the date of filing until disposition.
—> To that end, the judge conducts frequent case management conferences.

Question 60

Discovery –> Depositions

Answer 60

Any party may obtain discovery by taking (w/in CA) the oral deposition of any person, including any party to the action.

Depositions on Written Questions

• —> Any party may obtain discovery by taking a deposition by written questions instead of by oral examination.
• —> Questions to be propounded to the deponent by direct examination must accompany the notice of a written deposition

Subpoena
—-> The attendance of a witness at the taking of his deposition is req’d by means of a subpoena

Question 61

Discovery –> Interrogatories

Answer 61

Diff from FRCP

Any party may obtain discovery by propounding to any other party to the action written interrogatories to be answered under oath.

Number

• —> In CA, a party may propound to another party either or both of the following:
  (1) 35 specially prepared interrogatories; and
  (2) additional number of official form interrogatories that are relevant tot he subject matter of the pending action

Continuing Interrogatories
—-> An interrogatory may not be made continuing so that the party responding has a continuing obligation to respond or supplement the answers.

Question 62

Discovery –> Inspection of Documents, Things, and Places

Answer 62

Any party may obtain discovery by inspecting documents, tangible things, and land or other property that are in the possession, custody, or control of any other party to the action.
—-> RFPs are unlimited.

Question 63

Discovery –> Physical or Mental Examinations

Answer 63

Any party may obtain discovery by means of a physical or mental examination where the other party has put that mental or physical condition in controversy in the action.

Question 64

Discovery –> Requests for Admissionas

Answer 64

Any party may request that another party admit the genuineness of specified docs, or application of law to fact.

Number Permitted

• —> No party may request, as a matter of right, that any other party admit more than 35 matters that do not relate to the genuineness of docs.
• —> The number of requests for admission of the genuineness of docs is not otherwise limited, except as justice req’s to protect the responding party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense.

Question 65

Discovery –> Exchange of Expert Trial Witness Information

Answer 65

After the setting of the intital trial date for the action, any party may obtain discover by demanding that all parties simultaneously exchange info concerning each other’s expert trial witnesses.

Expert Witness Declaration

• —> Must be made under penalty of perjury and must contain:
  (1) a brief narrative statement of the quals of each expert;
  (2) a brief narrative statement of the general substance of the testimony that the expert is expected to give;
  (3) a representation that the expert has agreed to testify at trial;
  (4) a representation that the expert will be suff’ly familiar w/ pending action to submit to a meaningful oral deposition; and
  (5) a statement of the expert’s hourly and daily fee

Question 66

Discovery –> Discovery Sanctions

Answer 66

Protective Order
—-> Ct (for good cause shown) may make any order that justice req’s to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, oppression, or undue burden and expense.

Types of Sanctions

• —> To the extent authorized by the rules governing any particular discovery method, the ct (after notice to any affected party, person, attny and after opp for hearing) may impose the following sanctions against anyone engaging in misuse of the discovery process:
  (1) monetary sanctions ordering the payment of reasonable expenses incurred
  (2) issue sanctions resulting in an order designating that certain facts be taken as est’ed in favor of the wronged party
  (3) evidence sanctions prohibiting the wrongful party from introducing designated matters into evidence;
  (4) terminating sanctions in the form of an order:
• —> dismissing all or part of the action; or
• —> rendering a judgment by default

Question 67

Discovery –> Privileges

Answer 67

3 main privileges found w/in the CA rules are:

(1) AC Privilege
(2) Attorney work product privilege; and
(3) Privacy rights

Question 68

Disposition Without Trial –> Summary Judgment

Answer 68

Any party may move for SJ if it is contended that the action has no merit or that there is no defense to the action/proceeding.

Timing
—-> Notice of the motion and supporting papers must be served on all other parties to the action at least 75 days before the hearing.

Standard

• —> Standard = no triable issue of fact
• —> In CA, the party moving for SJ must prepare a memorandum of points and authorities w/ a statement of undisputed facts w/ citations to supporting evidence and an analysis of the relevant law

Question 69

Disposition Without Trial –> Judgment on the Pleadings

Answer 69

A party may move for judgment on the pleadings, or the court may on its own motion grant judgment on the pleadings.

• —> May be made even though:
  (1) a demurrer made by the moving party on the same grounds has already been overruled, provided that there has been a material change in applicable case law or statute since the ruling on the demurrer; or
  (2) the moving party did not demur to the complaint or answer on the same grounds as the basis for the motion

A motion to dismiss made after an answer has been filed is a motion for judgment on the pleadings.

Question 70

Disposition Without Trial –> Dismissal: Rule

Answer 70

Same as FRCP.

A case may be dismissed w/ or w/o prejudice.

• —> W/o prejudice: allows the P to file the action again w/in the applicable SoL
• —> W/ prejudice: prevents the P from bringing another action on the same subject matter

Question 71

Disposition Without Trial –> Dismissal: Voluntary Dismissal

Answer 71

By P
—-> The P may dismiss her entire complaint (or any CoA asserted in it, or as to any particular D or Ds) prior to the actual commencement of trial.

Question 72

Disposition Without Trial –> Dismissal: Involuntary Dismissal

Answer 72

Involuntary dismissal may be mandatory or discretionary w/ the ct.

Discretionary

• —> Failure to prosecute
• —> Ex: Ct may dismiss action in which D has not been served w/ process 2 years after filing of complaint

Mandatory

• —> Lack of service: ct must dismiss an action in which the D has not been served w/ process for 3 years after filing of complaint
• —> Failure to come to trial: an action must be brought to trial w/in 5 years after it has been commenced against the D, or it will be dismissed.

Question 73

Pre-trial Procedure –> Pretrial Conferences: Rule

Answer 73

Prior to trial, the ct may hold a meeting known as a pretrial conference.
—> The pretrial conference may be requested by either party or the ct.

Question 74

Pre-trial Procedure –> Pretrial Conferences: Purpose

Answer 74

Pre-trial conference are generally held to:

(1) set the date and time of trial
(2) determine procedures during trial; and
(3) finalize witness and exhibit lists

Question 75

Pre-trial Procedure –> Orders

Answer 75

At the conclusion of the pre-trial conference, the ct will enter an order reciting all of the pertinent matters of the action.

Question 76

Trial –> Severing or Consolidating Issues for Trial: Severance

Answer 76

The ct (in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy) may order a separate trial of any CoA (including a CoA asserted in a cross complaint, or of any separate issue or of any number of CoA or issues), preserving the right of trial by jury req’d by state and fed law.

Question 77

Trial –> Severing or Consolidating Issues for Trial: Joint Trials or Consolidation

Answer 77

When actions involving a common question of law/fact are pending before the ct, it may order a joint hearing or trial of any or all the matters in issue in the actions.
—-> OR it may order all actions consolidated into one action.

Question 78

Trial –> Severing or Consolidating Issues for Trial: Coordination

Answer 78

Coordination may be requested when civil actions sharing a common question of fact or law are pending in different courts (eg cts in different counties, or cts at different jdx’al levels in the same county).
—> Coordination attempts to promote efficient administration of cases that may have complex issues for discovery or trial in common.

Question 79

Trial –> Severing or Consolidating Issues for Trial: Order of Trial

Answer 79

CA applies the equity-first rule: equitable issues are first tried by the bench, and legal issues are then tried by a jury.

However, CA also follows the equitable clean-up doctrine: the bench can also hear legal issues that are incidental to equitable issues.

Question 80

Trial –> Trial by Jury

Answer 80

Jury Verdict
—-> A civil jury verdict need not be unanimous in CA; agreement by 3/4 of jurors is suff (diff from FRCP)

Waiver

• —> Trial by jury must be demanded right at the commencement of the lawsuit, or it is waived.
• —> Often put directly in the complaint

Jurors - Selection

• —> The judge and opposing attnys may question the jury panel at voir dire; in civil trial, each side can get rid of up to 6 jurors for whatever reason they like.
• —> Challenges for Cause: a party may challenge the entire jury panel for cause on the ground that it does not fairly represent the community at large
• —> Implied or actual bias would be grounds to dismiss a juror for cause (race and gender not acceptable grounds for dismissal)

Jurors - EPC Reqs

• —> Jury selection must comply w/ the USC’s EPC.
• —> Jurors may not be excluded on the basis of race, gender, national origin, sexual orientation, etc.

Verdicts

• —> A general verdict is a finding for the prevailing party; judgment for that party is entered directly on the basis of the general verdict.
• —> A special verdict presents only conclusions fo fact from which the ct will draw the conclusions of law

Question 81

Trial –> Motions in Jury Trials: Nonsuit

Answer 81

Specific to CA law

After the P has completed her opening statement, or after she has presented her evidence to the jury, the D may move for a judgment of nonsuit.

Question 82

Trial –> Motions in Jury Trials: Directed Verdict (JMOL)

Answer 82

In a jury trial, either party may move for an order directing a verdict in its favor at the close of all the evidence.

• —> Again, the ct will consider only the suff’y of the evidence in support of the claims for relief or the affirmative defenses
• —> AKA don’t allow the jury to hear this, it’s clear who wins

Question 83

Trial –> Motions in Jury Trials: Judgment Notwithstanding the Verdict (JNOV)

Answer 83

JNOV is a post-trial motion that must be made w/in the same time frame as that for a motion for a new trial.
—-> A motion for JNOV challenges the jury’s verdict

Question 84

Trial –> Motion for New Trial

Answer 84

Grounds

• —> In CA, the grounds for granting a new trial are purely statutory; the TC does not have inherent, discretionary powers in this area (diff from FRCP)
• —> A new trial may be granted on all or part of the issues, on application of the aggrieved party, for any of the following reasons:
  (1) newly discovered evidence
  (2) misconduct of the jury

Question 85

Trial –> Motion to Vacate

Answer 85

A judgment or decree may (upon motion of the aggrieved party) be set aside and vacated by the ct if it materially affects the substantial rights of the party and entitles the party to a diff judgment for either of the following reasons:

(1) if there was an incorrect or erroneous legal basis for the decision, not consistent with or not supported by facts; or
(2) if a judgment or decree was not consistent w/ or not supported by the special verdict

Note: differs from a motion for a new trial bc the motion to vacate is not predicated on erroneous determination of the facts, but on a failure of the judgment to conform to the findings of fact.
—> A corrected judgment may be entered by the TC w/out the necessity for a new trial or an appeal to correct the error.

Question 86

Trial –> Motions in Non-Jury Trials: Motions for Judgment

Answer 86

After a party has completed his presentation of evidence in a non-jury trial, the other party may move for a judgment in his favor, w/o waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted.

Question 87

Trial –> Motions in Non-Jury Trials: Correction or Amendment of Judgment - Judicial Error v. Clerical Error

Answer 87

After entry of judgment, the ct does not have the power to change it unless there has been clerical error.

Question 88

Trial –> Motions in Non-Jury Trials: Relief from Judgment

Answer 88

For Mistake, Inadvertence, Surprise, or Excusable Neglect
—-> Application for this relief must be made w/in a reasonable time (up to 6 months) after the judgment was taken.

Additur and Remittitur

• —> Both allowed in CA state ct; only remittitur allowed in FRCP
• —> A motion for additur is a req for an increase in the award for damages
• —> A motion for remittitur is a req that the judge reduce the award for damages bc it is excessive

Question 89

Finality of Judgment and Appeal –> Primary Right Doctrine

Answer 89

CA follows the primary rights doctrine (minority approach) in determining whether a litigant is allowed to bring a new CoA in a subsequent lawsuit.
—-> The PRD states that a P is entitled to a claim for each violation of a primary right to be free of a specific harm.

This doctrine is in contrast to the occurrence or transaction doctrine:
—-> In most jdxs, where all CoA related to a single incident must be included in the same suit

Question 90

Finality of Judgment and Appeal –> Res Judicata and Collateral Estoppel

Answer 90

Res Judicata is the umbrella term for preventing re-litigation of matters decided in prior adjudications.

• —> Divided into two major categories:
  (1) res judicata refers to claim preclusion
  (2) collateral estoppel refers to issue preclusion

Question 91

Finality of Judgment and Appeal –> Test for Claim Preclusion (res judicata)

Answer 91

Claim preclusion applies where:

(1) same parties as;
(2) final judgment on the merits
(3) the same claim or CoA
(4) the second suit was or could have been litigated

Question 92

Finality of Judgment and Appeal –> Test for Issue Preclusion (Collateral Estoppel)

Answer 92

Applies when:

(1) the second action is identical
(2) the issue was actually litigated in the first action
(3) final determination was on the merits; and
(4) the party against whom preclusion is sought was a party, or was in privity w/ a party, in the first suit

Question 93

Finality of Judgment and Appeal –> Finality of Judgment: Parties Bound by Judgment

Answer 93

Traditionally, res judicata applied only where there was mutuality of parties, meaning that both parties involved in the second action were also parties in the prior action.

• —> However, today mutuality of estoppel is no longer req’d, and a judgment will be effective against the formal parties to the subsequent lawsuit and all persons in privity w/ those parties.
• —> CA has an expanded definition of privity, which includes situations in which the relationship between the parties is suff’ly close to justify estoppel.

Question 94

Finality of Judgment and Appeal –> Finality of Judgment: Full Faith and Credit

Answer 94

Once final, a CA judgment is entitled to full faith and credit in other states.

• –> Likewise, the judgments of other states will be given full faith and credit in CA, unless:
  (1) the judgment did not comply w/ due process reqs
  (2) the foreign ct did not have PJ over the D; or
  (3) the foreign ct did not have SMJ

Question 95

Finality of Judgment and Appeal –> Finality of Judgment: Securing and Enforcing Judgments

Answer 95

The cts and legislature have provided means by which to enforce a judgment and secure a judgment in advance.

Question 96

Finality of Judgment and Appeal –> Finality of Judgment: Appeal

Answer 96

An appeal may be taken only from the final judgment in an action; a party may not appeal from an interlocutory order.

Appealable orders include:

• orders denying or granting SJ
• orders for final judgment
• orders granting a new trial
• denying a motion for JNOV
• orders granting or dissolving an injunction
• orders granting a motion to quash service or a summons or stay an action based on forum non conveniens

Question 97

Alternative Dispute Resolution –> Arbitration: Contractual Arbitration

Answer 97

Contractual arbitration usually binding, compelling, and subject to very little ct review.

Ct review of arbitral proceedings

• –> The ct will not review the merits, the arbitrator’s reasoning, or the suff’y of the evidence.
• –> What is req’d is corruption or prejudicial misconduct

Question 98

Alternative Dispute Resolution –> Arbitration: Judicial Arbitration

Answer 98

Judicial arbitration is not by the consent of both parties, not binding, and subject to many versions of ct review.

• –> The ct may order judicial arbitration in cases involving less than 50k
• –> Either party can reject the decision and take the case to trial

Question 99

Alternative Dispute Resolution –> Arbitration: Private Arbitration

Answer 99

Arbitration is often conducted by a private organization that maintains lists of available arbitrators and provides rules under which the arbitration will be conducted.
—> Private arbitration is intended to be adjudicatory (not advisory) and therefore final and binding subject to limited ct review.

Question 100

Alternative Dispute Resolution –> Mediation

Answer 100

Mediation differs from arbitration in that the parties negotiate an agreement that is less rule-bound than arbitration.

Question 101

Alternative Dispute Resolution –> Negotiation

Answer 101

Courts are involved in certain types of settlement offers under CCP 998, also known as offers of judgment.
—> The benefit of these orders is an offer of settlement resolves the case quickly

If the offer is refused and the other party does not beat the settlement amount, there are penalties to be imposed.

• –> Penalties include:
  (1) post-offer costs are lost, everything after the offer refusal date;
  (2) payment for the other party’s experts, which can be quite large

Question 102

Jurisdiction of CA Courts –> Subject-Matter Jdx: Small Claims Division

Answer 102

Jdx Based on Amount of Demand

• –> In General: small claims ct has jdx over cases where amount in controversy does not exceed 10k for cases brought by individuals and 5k for cases brought by businesses and other entities (govt entities)
• –> Annual Limitation: except for cases brought by public entities, no person may file more than 2 small claims actions in which the amount demanded exceeds more than $2500 anywhere in the state in any year

Question 103

Jurisdiction of CA Courts –> Subject-Matter Jdx: Limited and Unlimited Civil Cases

Answer 103

A consolidation of the TCs in 1998 caused municipal ct jdx to be replaced w/ limited civil cases in the superior courts.
—> Limited civil cases may be brought in the small claims division, despite having a higher demand, if the small claims ct has.

Limited Civil Cases
—> Amount in controversy: cases w/ demands of or property worth 25k or less.

Differences Between Limited and Unlimited Civil Cases

• –> In unlimited civil cases:
  (1) The ct can award any amount it wants
  (2) Discovery has few limitations
  (3) Many kinds of relief can be awarded, such as injunctive relief
• –> In limited civil case:
  (1) Ct has no power to enter award above 25k
  (2) Discovery is limited to one deposition per party and only 35 total interrogatories or doc requests
  (3) No injunctions, no entitlements to real property, no family law, no enforcements, no declaratory relief

Advantages of limited civil case:

(1) Lower costs; cheaper to pursue
(2) Faster than an unlimited civil case

Question 104

Jurisdiction of CA Courts –> Subject-Matter Jdx: Limited and Unlimited Civil Cases - Reclassification

Answer 104

It is much easier to reclassify a case upwards from limited to unlimited than the reverse.

• –> A matter may be reclassified upward as an unlimited civil action when there is a reasonable possibility that the amount will exceed 25k.
• –> A matter may be reclassified downward as a limited civil action when during the course of pre-trial litigation, it becomes clear that the matter will necessarily result in a verdict below the SCs jdx’l amount (AKA recovery in excess of 25k is virtually unobtainable)

Question 105

Jurisdiction of CA Courts –> Subject-Matter Jdx: Limited and Unlimited Civil Cases - Aggregation of Claims

Answer 105

Yes! Aggregation allowed virtually any way you can get it.

Examples:

(1) Single P sues single D on separate causes of action and the causes of action are joined properly, the aggregate value of all claims or demands determines jdx
(2) If there is more than one P and each P’s individual claim against a single D is 25k or less, but the joint claims are more than 25k, the claims can be aggregated to qualify as unlimited civil case
(3) If a single P sues a single D for more than 25k and another for less than 25k, the case qualifies as unlimited civil case

Question 106

Pleadings and Service of Process –> Motions to Strike

Answer 106

On a motion to strike, or at any time in its discretion, the ct may:

(1) strike out any irrelevant, false, or improper matter inserted in any pleading; or
(2) strike out all or any part of any pleading not properly drawn or filed.
- -> Most common ex: punitive damages (if P either doesn’t have factual support for it or isn’t alleging an intentional tort that permits it), ct will strike

Anti-SLAPP Motion

• -> Anti-SLAPP is an anti-strategic lawsuit against public participation, and is a motion to strike designated to end frivolous lawsuits up front at the motion to strike level.
• -> The kind of lawsuit takes aim at is: where P is sued for speech - P is not after lawsuit, but rather just wants D to stop saying what saying
• -> Lawsuit will be dismissed unless the ct determines that the P has est’d (by pleadings and/or supporting or opposing affidavits) that there is a probability that the P will prevail on the claim

SLAPP Back
–> A SLAPP Back is a CoA for malicious prosecution or abuse of process arising from the filing or maintenance of a prior CoA that has been dismissed pursuant to an anti-SLAPP motion

Question 107

Pleadings and Service of Process –> Amendment of Pleadings: Fictitious Names

Answer 107

When the P does not know the name of a D the P may list Doe Ds in their pleading, provided the P genuinely does not know the identity of the D.
—> When the D’s true name is discovered the pleading or proceeding must be amended accordingly.

Question 108

Pleadings and Service of Process –> Amendment of Pleadings: Relation Back

Answer 108

CA has adopted a doctrine that permits an amended complaint to relate back to the date of the filing of the original complaint, for purposes of avoiding the bar of the SoL if the time period has run in the interim.

Relation back doctrine req’s:

(1) rest on the same general set of facts set forth in the original complaint;
(2) involve the same accident and same injuries identified in the original complaint; and
(3) refer to the same offending instrumentality described in the original complaint

Question 109

Finality of Judgment and Appeal –> Finality of Judgment: Collateral Estoppel

Answer 109

Modernly, CE can be used offensively (want something) or defensively (don’t want to have to pay, don’t actually want something from the other party).