CA Civil Procedure

Question 1

Civil Procedure Issues Checklist

Answer 1

Proper Court Preliminary Issues / Forum Selection
- Personal Jurisdiction (Power over Parties)
- Subject Matter Jurisdiction (Power over Case)
- Supplemental Jurisdiction
- Removal and Remand
- Venue (Where to Try Case)
- Notice
- Choice of Law

Pretrial Procedures
- Pleadings
- Joinder of Parties
- Joinder of Claims
- Class Action
- Discovery

Disposition/Adjudication without Trial
- Dismissal / default
- Motion for Summary Judgment

Trial
- Right to a jury
- Judgment as a matter of law (JMOL) / Directed Verdict in CA

Post-Trial
- Renewed JMOL/JNOV in CA
- Motion for New Trial
- Motion to Set Aside Judgment
- Remittitur / additur

Appeal
- Final Judgment Rule (FJR) & exceptions

Use of Final Judgment
- Res judicata (claim preclusion)
- Collateral estoppel (issue preclusion)

Question 2

Proper Court/Forum Selection Issues - Personal Jurisdiction Traditional Bases

Answer 2

A traditional basis for PJ exists where the D
1) consents to jurisdiction in the forum state OR
2) is domiciled in the forum state (physical presence + subjective intent to remain)
3) is present in the forum state when served with process (tag jurisdiction)

Question 3

Proper Court/Forum Selection Issues - Personal Jurisdiction Modern Minimum Contacts Test

Answer 3

MPFREFCSIO = “My Professors Frequently Reminded Everyone From California to Study in Overdrive”
- Minimum contacts
- Purposeful availment of the benefits and protections of the state
- Foreseeability of being haled into court
- Relatedness between contact and claim
- Essentially at home
- Fairness factors
- Convenience
- State’s interest
- Other Interests

The modern minimum contacts standard allows PJ over nonresidents of the forum state provided there is:
1) a LONG-ARM STATUTE in the state AND
2) exercising PJ is consistent with the CONSTITUTIONAL requirements of the minimum contacts standard

There are two types of long-arm statutes:
1) The first long-arm statute, as in California, gives state courts power over any person or property up to the limits of the Constitution.
2) The second, a specific long-arm statute, is a type that gives a state’s courts power over nonresidents only under certain specified situations.

The constitutional test for PJ is the minimum contacts test. A defendant must have sufficient minimum contacts with the forum state such that asserting jurisdiction over him does not offend traditional notions of fair play and substantial justice. This is a 3-step assessment:
1) D’s MINIMUM CONTACTS with the forum
2) RELATEDNESS of the claim to contact with forum
3) whether or not exercising jurisdiction would be FAIR.

Minimum Contacts: Assess if D has PURPOSEFULLY AVAILED himself of the benefits and protections of the state such that it would be REASONABLY FORESEEABLE that his activities in the forum state could subject him to being HALED INTO COURT there.

Relatedness:
1) When P’s claim is directly related to D’s contact with the forum, the forum state will have SPECIFIC JURISDICTION over D for that claim only. Go on to Step 3 to analyze FAIRNES factors.
- If D’s contact didn’t cause P’s claim, there could still be relatedness if D is found to be AT HOME in the forum state, thus creating GENERAL JURISDICTION.
2) When D’s contacts with the forum state are sufficiently SYSTEMACTIC and CONTINUOUS that it renders the defendant essentially at home in the forum state, GENERAL JURISDICTION will be found. If

Fairness:
1) Assess the CONVENIENCE to the parties. This is the BURDEN on D and witnesses.
2) Assess the STATE’s INTEREST in regulating activity within its borders and protecting its citizens.
3) Assess PLAINTIFF’s INTEREST, like P is injured in the forum state or wants to sue at home.
4) Assess other interests

Question 4

Proper Court/Forum Selection Issues - Subject Matter Jurisdiction (Federal Question Issues)

Answer 4

SMJ requires the court to have proper jurisdiction over the case itself. 3 ways to get SMJ:
1) Federal Question
2) Diversity
3) Supplemental Jurisdiction

Federal Question jurisdiction is satisfied when P’s claim “arises under” federal law. P must follow the “well pleaded complaint rule” requiring that P’s claim itself arises under/enforces a federal right and not just raises some federal issue.

Question 5

Proper Court/Forum Selection Issues - Subject Matter Jurisdiction (Diversity)

Answer 5

Diversity jurisdiction is satisfied when:
1) there is complete diversity between citizens of different states (no D shares same state as any P) AND
2) the amount in controversy exceeds 75k

Citizenship Rules:
- Natural person’s citizenship = domicile (physical presence + subjective intent to remain)
- Corporation’s citizenship = state where INCORPORATED + PRINCIPAL PLACE OF BUSINESS (“nerve center”)
- Unincorporated association’s citizenship = citizenships of all members count, including limited partners and entities
- Citizenship of minors/incompetents = their own citizenship, not their representative’s state
- Alienage = permits SMJ when there is case between US citizen and foreign subject. No SMJ for action by an alien against another alien unless there are also US citizens on both sides of the controversy.

Amount in controversy = must exceed 75k.
- Can aggregate multiple claims by 1 P against 1 D
- Can aggregate 2 Ps against 1 D with same common undivided interest
- AiC determined at time of filing the action

Exceptions to Federal SMJ:
- no divorce, family law, or probate cases

Question 6

Proper Court/Forum Selection Issues - California SMJ

Answer 6

CA courts have general SMJ and can hear any case not within exclusive jurisdiction of another court.

CA Court Cases Classified:
- Unlimited = heard in CA Superior Court. Require AiC > 25k. No limits on pleadings, discovery, or relief. Claimant can recover any amount
- Limited = Require AiC of 25k or less. Limits on use of process and equitable relief available. Claimants can’t recover more than 25k.
- Small Claims = If P is individual, claim is 10k or less. If P is business entity, claim is 5k or less.

If Misclassified = either party or court can seek reclassification

Question 7

Proper Court/Forum Selection Issues - Supplemental Jurisdiction

Answer 7

SJ allows extension of SMJ when an additional claim doesn’t invoke FQ or Diversity, but does have a “common nucleus of operative fact” with a claim that does invoke SMJ.

Limitation on use of SJ in Diversity cases = claims by P generally can’t invoke SJ. The only time it works in a diversity case is when you have multiple Ps and the claim by one of them doesn’t meet the AiC req:

Question 8

Proper Court/Forum Selection Issues - Removal

Answer 8

Removal allows D to bring the case originally filed in state ct to fed ct when it was proper to do so in the first place.

Only Ds are eligible to remove. ALL Ds must join in the removal to be effective.

In-State Defendant Rule: in diversity cases, D can’t remove to fed ct if he is a citizen of the forum state.
1 year limit: case can’t be removed after a year, unless D tried to join the other D to prevent removal

Venue “Embracing” Rule: The case can be a removed to a fed district ct embracing the state court where the case was originally filed

Timing: D must remove no later than 30 days after service of the first “removable” document

Question 9

Proper Court/Forum Selection Issues - Remand

Answer 9

When D tries to remove a case to fed court and it was IMPROPER, the fed ct can remand back to state ct.

Timing: P must move to remand the case within 30 days of removal, however there is no time limit if the fed ct lacks SMJ over the case since SMJ issues may be raised at any time.

Question 10

Proper Court/Forum Selection Issues - Venue Basics

Answer 10

Venue concerns which geographic district is the proper place for a particular case to be heard. There must still be jurisdiction over the SMJ and PJ over the parties.

2 ways to get venue in Fed Ct:
1) Residential Venue = All Ds reside in that district (or at least in the same state
–> in CA, venue is proper in a county where any D resides at the time the case is filed. If no D resides in CA, then any county is acceptable
2) Transactional Venue = A substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located there
–> In CA court: Venue is proper in the COUNTY where the CLAIM AROSE (injury occurred or K entered into) or where the land in dispute is located (local actions).

Definition of “Reside” for Venue Purposes:
1) Natural persons reside at their domicile (presence + intent) of their
–> Fed = judicial district (Fed)
–> CA = county (CA).
2) Corporations reside where:
–> Fed = in all districts where they’re subject to PJ if the district were a state
–> CA = in county where they have their PPB or where a K was entered into or performed, or where K breach occurred

If no district satisfies venue requirements, venue is proper in any district where any D is subject to court’s PJ

Question 11

Proper Court/Forum Selection Issues - Transfer of Venue & Forum Non Conveniens

Answer 11

If original venue is proper:
–> Fed = Venue may be transferred to another fed ct where case could have been filed or all parties consent and there is proper PJ, SMJ, and venue
–> CA = the venue can be changed at the judge’s discretion where the interests of justice and convenience of the parties would be served by such a transfer

If original venue is IMPROPER:
–> Fed = the court must dismiss or in the interests of justice, transfer to a proper venue where the case could have been brought and there is PJ, SMJ, and Venue. Note: improper venue can be waived by the parties and will be deemed waived if they don’t object in a timely fashion
–> CA = allows for the transfer of venue to a proper county where the court designated in the complaint is not the proper court

Forum selection clauses generally upheld.

Forum Non Conveniens:
–> Fed = a court may dismiss or stay a case if there is a far more appropriate forum elsewhere, such as another state or country
–> CA = a court may dismiss or stay a case if another forum is more suitable by looking at the INTERESTS OF JUSTICE, including that the alternative forum is suitable and the private and public interest factors balacne in favor of the alternative forum
—-> Public factors: what law applies, which community should be burdened with jury service; and
—-> Private factors: convenience, location of witnesses, evidence

Question 12

Proper Court/Forum Selection Issues - Notice/Service of Process

Answer 12

Notice: a D must be properly notified of a pending action by a reasonable method and must be given an opportunity to be heard

Service of process means providing D with notice of pending action by including SUMMONS + COMPLAINT

Method: made by anyone who is at least 18 yo and not a party. Personal service is always adequate and occurs by handing the papers to D
–> Substituted Service: Usually adequate
1) Fed = Substituted service of process can be left at D’s USUAL ABODE and served upon someone of SUITABLE AGE AND DISCRETION who resides there; or served to D’s AUTHORIZED AGENT, or follow whatever STATE METHOD PERMITTED
2) CA = allows substituted service only if personal service cannot be accomplished with reasonable diligence. The service of process must be left at D’s usual abode with a competent member of the household who is AT LEAST 18 and that person must be informed of the contents. The server must then MAIL A COPY OF THE PAPERS to the other party at the address where the papers were left.
2b) CA Corporations = service of process ok on D’s agent or one apparently in charge at the office during usual hours
–> Constructive Service: If D waives service of process, D can technically be served by registered mail
CA Caveat = CA allows service by publication only if nothing else works. P’s atty must provide an affidavit that D cannot be served after reasonable diligence.

Service on parties in foreign country: service can be done as the court directs, or in accordance with the laws of the foreign jurisdiction or international treaties like the Hague Convention

Question 13

Proper Court/Forum Selection Issues - Choice of Law/Erie and CA Conflict of Law

Answer 13

Erie Doctrine = A fed ct sitting in diversity must apply state substantive law, including statute of limitations and the state’s conflict of law rules and fed procedural law.

Step 1) Is there fed law on point directly conflicting with state law? (Such as patents or international agr)
–> Follow fed law
Step 2) If there’s no fed law, apply state law if the issue is substantive
Step 3) If there’s no fed law and the issue isn’t substantive, the fed judge must determine whether the issue is substantive. Apply 3 tests:
—>1) Outcome determinative test: An issue is substantive if it substantially affects the outcome
—>2) Balance of interests: The fed interest in having the fed law applied is balanced against the state interest in having the state law applied. If state’s interest is greater, it’s a substantive issue
—>3) Avoid forum shopping: If following the fed law would encourage forum shopping, we don’t like that so we’ll call the issue substantive and thus follow state law instead

CA Conflict of Law rules deemed substantive under Erie.

• Tort actions: where 2 state laws are in conflict, the court evaluates the comparative impairment to each state’s interest in having its own law applied
• Contract actions: depends on whether there is a choice of law provision in the K
  1) Contracts without a choice of law provision: the court evaluates the comparative impairment to each state’s interest in having its own law applied
  2) Contracts with a choice of law provision
  a) No conflict: the provision will be applied so long as it is has a reasonable basis and does not conflict with CA policies
  b) Conflict: if the choice of law provision conflicts with CA policies, the CA law will apply if CA has a MATERIALLY
  greater interest in having its law applied than the chosen state

Question 14

Pretrial Procedures - Pleadings

Answer 14

Pleadings are the documents setting forth the claims and defenses to a case. Purpose of pleadings is to communicate with the opposing party and court.
–> Fed courts use notice pleading, meaning the complaint just has to provide the opposing party with reasonable notice of the nature and scope of claims being asserted
–> CA courts use fact pleading, also called “code pleading” which is more specific than notice pleading. Parties must plead ultimate facts to support each element of the cause of action

Pleading Requirements: Rule 11 requires all attys to sign all pleadings certifying that the paper is proper, the legal contentions are warranted by law, and the factual contentions have evidentiary support
– Sanctions may be imposed for violations of this rule, but they are limited by the 21 DAY SAFE HARBOR. This safe harbor gives the served party 21 days to withdraw or correct the problematic pleading. Rule 11 doesn’t apply to discovery documents

Question 15

Pretrial Procedures - Complaint

Answer 15

A complaint is used by P to raise issues.

Fed = A federal complain must include:
1) Identification of the parties
2) statement of proper SMJ
3) Statement of the claim showing factual basis on which P is entitled to relief. Notice pleading typically only requires stating enough facts to support a plausible claim.
—> Caveat: Fraud, mistake, and special damages must be pled with specificity and particularity.
4) A demand for judgment.
5) The signature of the plaintiff or his attorney.

CA = a complaint in CA must include:
1) Identification of the parties. Note that CA allows Ps to sue fictitious “Doe” defendants where identity unknown
2) A statement of the claim, including a “statement of facts constituting a cause of action, in ordinary and concise language”. Since CA uses fact pleading, this requires pleading the specific facts supporting every element of each legal theory.
3) A demand for judgment, including the AMOUNT OF DAMAGES SOUGHT, unless damages are for actual or punitive damages for a personal injury or wrongful death action.
4) The signature of P or his atty.

Question 16

Pretrial Procedures - Response (Pre-Answer Motions)

Answer 16

Rule 12 requires D to respond either by 1) motion or 2) answer within 21 days after service of process.

CA allows 30 days to respond.

Pre-answer Motions:
1) Motion for a more Definite Statement: used where complaint is too vague.
CA does this via special demurrer on the grounds that the pleading is uncertain
2) Motion to strike is aimed at pleadings containing immaterial or redundant issues
CA also has Anti-SLAPP (Anti-Strategic Lawsuits Against Public Participation) motion to strike targeting suits that chill speech. D can make an Anti-SLAPP motion to strike which shifts the burden to the P to show a probability of winning on the merits

Question 17

Pretrial Procedures - Response (Fed 12(b) Motions)

Answer 17

Federal Rule 12(b) Defenses raised by a pre-answer motion or in the answer:
1) Lack of SMJ - can be raised anytime before all appeals are exhausted
2) Lack of PJ - must be raised in the first response or is deemed waived
3) Improper Venue - must be raised in the first response or is deemed waived
4) Insufficient Process - must be raised in first response or is deemed waived
5) Insufficient Service of Process - must be raised in the first response or is deemed waived
6) Failure to State a Claim - can be raised any time until the trial is concluded
7) Failure to Join an Indispensable Party: can be raised anytime until the trial is concluded

Question 18

Pretrial Procedures - Response (CA Demurrer)

Answer 18

CA Demurrer (General or Special) is used to respond to the complaint

General Demurrer:
A) Pleadings failed to state facts sufficient to constitute a cause of action
B) Court lacks SMJ

Special Demurrer: only allowed in cases classified as UNLIMITED. Can also raise these issues in the answer. Special demurrers can be based on:
1) Uncertain pleading (similar to a federal motion for a more definite statement)
2) Complaint is unclear about which theories of liability are asserted against each of the defendants
3) Lack of legal capacity to sue
4) Existence of another case between P and D on the same cause of action
5) Defect or misjoinder of parties
6) Failure to plead whether a K is oral or written
7) Failure to file a required certificate

Question 19

Pretrial Procedures - Response (CA Motion to Quash)

Answer 19

A CA motion to quash service of summons is done by means of a special appearance and must be made separately from the answer. This motion must be made either before or at the same time with the filing of the demurrer or motion to strike or the answer. If you don’t do that, you waive these defenses:
- Lack of PJ
- Insufficient process
- Insufficient service of process

Question 20

Pretrial Procedures - Response (Answer)

Answer 20

An answer is D’s response to the complaint. A D must respond within 21 days after service of process (or within 60 days if service waived).

CA allows 30 days to respond.

D must respond to the allegations by denying them, admitting them, or stating he lacks sufficient information to do either (failure to deny can operate as an admission).

D must also assert any affirmative defenses in the answer.

CA: fact pleading requires factual detail regarding each legal element when asserting affirmative defenses

Question 21

Pretrial Procedures - Amended Pleadings (Right to Amend & Fed Relation Back Doctrine)

Answer 21

Right to Amend

Fed: A P has a right to amend once within 21 days of service, or 21 days after service of a responsive pleading or pre answer motion. A defendant has a right to amend once within 21 days of serving his answer. Otherwise, a party must seek leave of court to amend, which the court will grant freely if justice so requires.

CA: A plaintiff has a right to amend ONCE before the answer or demurrer to the complaint is filed, or after the demurrer is filed but before the hearing on the demurrer. Otherwise, a party must seek leave of court to amend, which the court will typically grant liberally.

Federal relation back doctrine: amends the pleading back to the date of the original filing for purposes of the statute of limitations:
1) Amended claims relate back (after the statute of limitations has run) if they concern the same conduct, transaction, or occurrence as the original pleading.
2) Amended defendants relate back if: 1)) they concern the same conduct, transaction, or occurrence as the original complaint, 2)) the new party knew of the original action and is not prejudiced in maintaining a defense, and 3)) the new party also knew that, but for a mistake, she would have been named as a D in the original complaint

Question 22

Pretrial Procedures - Amended Pleadings (CA “Doe” Amendments)

Answer 22

California relation back “Doe” amendments: California permits suing a defendant using a fictitious “Doe” designation. The “Doe” amendment will be permitted if:
1) the original complaint was timely filed and includes allegations against the “Doe” defendants,
2) the plaintiff was genuinely ignorant of the identity of the fictitiously named “Doe” defendant, the facts giving rise to the cause of action against that defendant, or the fact that the law provides a cause of action, and
3) P’s ignorance is pled with specificty in the complaint

AND
P must substitute a named D for a “Doe” defendant within 3 years of the filing and it will “relate back” to the filing date of the OG complaint

Question 23

Pretrial Procedures - Joinder of Parties (Basics)

Answer 23

Permissive joinder: plaintiffs or defendants may be joined to an existing case if the claims arise from the same transaction or occurrence and raise at least one common question of fact or law. However, there still must be SMJ

It’s easy for P to join new Ds if the claims arise from the same T/O

Question 24

Pretrial Procedures - Joinder of Parties (Necessary Parties)

Answer 24

joinder of a necessary party
definition: a party is a necessary party if:
1) the court cannot provide complete relief without the necessary party; or
2) the absent party’s interest will be harmed if he is not joined; or
3) the absent party is subject to multiple inconsistent obligations.

Join: a necessary party must be joined if:
1) the court has personal jurisdiction over him; and
2) joining him doesn’t destroy diversity, where diversity is the basis of federal SMJ

Unable to Join: if a necessary party cannot be joined because of one of the reasons noted above, the court will consider if there is an alternative forum available, assess the likelihood and extent of prejudice to the parties and the absent party, and whether the court can shape relief to avoid the prejudice. The court may either:
a) Dismiss the case because the party is indispensable; or
b) proceed with the case without the necessary party

Question 25

Pretrial Procedures - Joinder of Parties (Impleader)

Answer 25

Impleader is a mechanism a defending party can use to add a third party defendant in order to seek indemnity or contribution.

Supplemental jurisdiction will apply because the claim will meet the common nucleus of operative fact requirement and no independent basis for SMJ is required

California calls this a cross complaint, and it is broader since it allows the addition of any claim on which the third party defendant is liable so long as it pertains to the same transaction or occurrence
Venue need not be proper for the third party defendant

Question 26

Pretrial Procedures - Joinder of Parties (Intervention)

Answer 26

Fed = Intervention applies when a non party claims an interest in the property or transaction that is the subject of the pending lawsuit and disposition in his absence will impair his rights

CA = California allows intervention if the potential interveners interest is direct and immediate, and does not allow intervention if the interest is indirect and consequential

Question 27

Pretrial Procedures - Joinder of Parties (Interpleader)

Answer 27

Interpleader is an action where one holding property (the stakeholder) forces all potential claimants (people who claim the property) into a single lawsuit to avoid multiple and inconsistent litigation. There are two types of interpleader:
1) Statutory: Requires only that one claimant must be diverse from one other claimant and the amount in controversy must be $500 or more.
2) Rule 22 Interpleader: requires that the stakeholder must be diverse from every claimant and the amount in controversy must exceed 75k

Question 28

Pretrial Procedures - Joinder of Claims (Counterclaims)

Answer 28

Counterclaim is an offensive claim against an opposing party
2 types:
1) Compulsory counterclaims arise from the same transaction or occurrence as the plaintiff’s claim and must be raised in the pending case or the claim is deemed waived.
a. Supplemental jurisdiction: An independent basis for SMJ is not required since SJ will extend to a compulsory counterclaim.
2) Permissive counterclaims do not arise from the same T/O and may be raised in the pending case or in a separate case
a. No SJ: a permissive counterclaim must have an independent source of SMJ

Question 29

Pretrial Procedures - Joinder of Claims (Crossclaims and CA “Cross Complaints”)

Answer 29

Cross claim is an offensive claim against a co party and must arise from the same transaction or occurrence. Cross claims are never compulsory. This is called a cross complaint in California.
a. SJ: an independent basis for SMJ is NOT required since SJ will extend to a cross claim

Question 30

Pretrial Procedures - Class Action (Fed Requirements)

Answer 30

Class action is a case where a named representative sues on behalf of a group
federal court class action requirements:
1) Numerosity: too many claass members for joinder
2) Commonality: questions of law or fact are commmon to the class
3) Typicality: the rep’s claims or defenses are typical of those in the class
4) Adequacy of representation such that it will fairly represent the class; and

Question 31

Pretrial Procedures - Class Action (Fed Type of Class)

Answer 31

Type of class: the class must also fit within one of the following types of classes:
a. Prejudice
b. Injunctive or declaratory relief
c. “Common Question” – a question of law or fact common to the class predominates. Common in mass torts.

Question 32

Pretrial Procedures - Class Action (Fed Citizenship Issues & CAFA)

Answer 32

Federal class action citizenship issues:
1) Diversity action: to determine citizenship for class actions based on diversity, only the citizenship of the named representative is taken into account, and the 75K amount in controversy requirement can be satisfied by any named class representative.
2) CAFA (Class Action Fairness Act): If a class has at least 100 members and the class claims aggregated exceed $5 million and any class member is diverse from any defendant, the CAFA requirements are met for diversity jurisdiction

Question 33

Pretrial Procedures - Class Action (CA Class Actions)

Answer 33

California class actions are allowed if there is:
1) An ascertainable class; and
2) a well defined community of interest among class members. To analyze this, courts look at whether:
a. common questions of law or fact predominate;
b. the representative will adequately represent the class interests; and
c. the class will result in substantial benefit to the parties and the court.
3) Type of class: in California there is only one type of class
4) Notice: individual notice is not required and publication is an acceptable method of notice

Question 34

Pretrial Procedures - Discovery (Fed Rule 26 Mandatory Disclosures)

Answer 34

Discovery disclosure requirements:
federal rule 26 requires the mandatory disclosure of information about the pending case to the opposing party. There are 3 types of mandatory disclosures:
1) Initial disclosures that supply information about disputed facts, including:
a. identifying those likely to have discoverable information
b. copies or description of tangible evidence such as documents
c. a damages computation and supporting documentation; and
d. copies of applicable insurance documents
2) expert testimony information, including
a. identity of the expert
b. the experts qualifications and
c. the experts written report
3) pretrial disclosures, including a list of all non expert witnesses and a list of documents or exhibits

California does not require the mandatory disclosure of information, though information may be requested

Question 35

Pretrial Procedures - Discovery Tools

Answer 35

Discovery tools

1) Depositions: an examination of a witness that occurs under oath.
a. Parties can be deposed and non parties can be deposed by means of a subpoena
b. once only: a person may not be deposed twice without court approval
c. Limits
i. Federal rules permit only 10 depositions and the deposition cannot exceed one 7-hour day unless the court orders more
ii. California has no limits as to the number of depositions
2) Interrogatories: questions in writing to another PARTY ONLY must be answered in writing under otah and the responding party must respond within 30 days
a. Limits:
i. Federal Rules permit no more than 25 interrogatories unless court orders more
ii. California allows an unlimited number of form interrogatories and a maximum of 35 specific interrogatories, unless a court permits additional requests upon the filing of a Declaration of Additional Discovery identifying the special need
3) Requests for admissions: request another party to admit the truth of any discoverable matter. The purpose is to identify areas that are not in controversy. Only ask parties!
a. CA allows at most 35 requests for admission unless court permits more
4) Requests to inspect and produce
a. Federal: Any party may request another party, or a non party with subpoena, to make available for review and copying documents, electronic copies, or other tangible items, or permit entry onto property.
b. California allows for a party to make requests to inspect and produce on another party but not for a non party. However, the same result could be accomplished by taking the nonparty’s deposition and serving a subpoena duces tecum.
5) ESI: parties must meet to discuss the discovery and preservation of ESI. If it’s not reasonably accessible because of burdensome cost, the court may still order production and impose cost-sharing measures.
a. Preservation: parties must take reasonable steps to preserve ESI when litigation is reasonably foreseeable, or be sanctioned
6) Request for physical or mental examination of a party may be sought by an opposing party.
a. Federal: Must obtain court order showing that the physical or mental condition of the party is at issue, and there is good cause for an examination.
b. California: allows the defendant to have one physical exam of the plaintiff as a right when the plaintiff’s physical condition is at issue. Other physical or mental examinations require leave of court. An atty for the party being examined can attend the physical exam.
California limited cases have limited discovery and only allow each party a 35 maximum total for all interrogatories, inspection demands, and requests combined

Question 36

Pretrial Procedures - Discovery Scope

Answer 36

FOCUS on WORK PRODUCT and MEDICAL EXAMS

Scope of discovery

1) need not be admissible: relevant materials can be discovered even if not admissible so long as the item is reasonably calculated to lead to the discovery of admissible evidence.
2) Privileged material is not discoverable
a. California requires the responding party to object with particularity, identifying the document, its author, the date, all recipients, and the specific privilege applicable.
3) Attorney work product is not generally discoverable
a. general rule: work product is material prepared in anticipation of litigation and is generally not discoverable unless there is substantial need and the inability to obtain the information through other means.
b. Absolute privilege applies to mental impressions, opinions, conclusions, and legal theories
i. Federal: applies if generated by a party or attorney or representative of a party
ii. California: applies if generated by an attorney or his agent
4) California constitution recognizes a right to privacy which is balanced against the need for discovery
5) Sanctions: for violation of discovery, sanctions may be imposed including holding a non complying party in contempt, striking pleadings, imposing fees, and ordering default judgment

Question 37

Disposition Without Trial - Dismissal

Answer 37

Voluntary dismissal: a plaintiff may obtain 1 voluntary dismissal without prejudice (so it may be relitigated). The trial court also has discretion to grant a dismissal after an answer or motion for summary judgment is filed, uless substantial prejudice to D would occur.

Involuntary dismissal: the court may do this 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.

Dismissal for failure to state a claim occurs in a situation where if the court assumes all allegations are true, the plaintiff still can’t win based on the face of the complaint. In CA, this is a general demurrer.

California Mandatory Dismissal occurs if the case is not brought to trial within five years of filing the complaint, or two years have passed from filing until the service of process.

Question 38

Disposition Without Trial - Default Judgment

Answer 38

Default judgment occurs if the defendant fails to respond within 21 days after service federally, or 30 days of service in California

Question 39

Disposition Without Trial - Motion for Summary Judgment

Answer 39

Motion for summary judgment will be ordered where the moving party can establish there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.
- Evidence is viewed in the light most favorable to the nonmoving party.
- Evidence must be comprised of first hand knowledge and credibility is not weighed here.
- A court can grant a partial summary judgment as to one of several causes of action.

Question 40

Trial - Right to Jury Trial

Answer 40

Right to a Jury Trial:

Federal 7th Amendment: In federal court, the 7th amendment preserves the right to a jury in civil actions at law, but a judge still decides issues at equity.
- Legal issues first, then equitable: if a case has both legal and equitable claims, the jury decides the factual legal issues first, then the judge determines the equity claim.
- Demand for jury: P must demand in writing no later than 14 days after service of the last pleading that he is raising a jury triable issue and demands a jury trial, or it is waived.
- Jury composition: Each side has unlimited challenges on voir dire for cause and 3 peremptory challenges. Jury must have 6-12 jurors and a unanimous vote is required.

California Juries: The California Constitution grants a right to a jury trial. The demand for a jury must be made at the time the case is set for trial, or within five days after notice of setting for trial.
- Equity issues first, then legal: Unlike in federal court, if a case has both legal and equitable claims, the judge decides the equitable issues first, then the jury decides the legal issues.
- Equitable Cleanup Doctrine: Where the main purpose of a case is equitable, and the only legal issue concerns damages that are merely incidental, then the judge may hear the whole case and a jury is not required.
- Jury Composition: Each party has unlimited challenges for cause and 6 peremptory challenges (not 3, like in fed ct). A jury contains 12 jurors and alternates; only a ¾ jury vote is required in civil cases. Unanimous vote needed for criminal cases.

Question 41

Trial - Judgment as a Matter of Law / CA Directed Verdict

Answer 41

Judgment as a matter of law (JMOL) occurs when one party files a motion after the other side has been heard at trial (meaning D can usually move twice) contending that reasonable people could not disagree on the result, and asks for a judgment as a matter of law. Essentially, this serves to take the case away from the jury.

California Directed Verdict: this is called a motion for directed verdict or a demurrer to the evidence in CA court.

Question 42

Post-Trial Issues - Fed Renewed JMOL / CA JNOV

Answer 42

Renewed judgment as a matter of law (RJMOL) occurs after the jury has reached a verdict, contending that reasonable people could not disagree on the result, and asks for a judgment as a matter of law.
- In fed ct, the losing party must have originally filed a JMOL or they can’t later file a RJMOL since it’s a renewal.
- Timing: In fed ct, motion must be made within 28 days after entry of judgment. In CA, the motion must be made within 15 days after mailing or service of notice of entry of judgment, or 180 days after the entry of the judgment.

CA Motion for Judgment Notwithstanding the Verdict (JNOV) = unlike in fed ct, losing party is NOT required to make a directed verdict motion first in order to make the JNOV motion.

Question 43

Post-Trial Issues - Motion for New Trial

Answer 43

Motion for a New Trial: After judgment has been entered, the losing party requests a new trial based on errors made at trial.

Timing:
- Fed: the motion must be made within 28 days after entry of judgment.
- CA: the motion must be made within 15 days after mailing or service of notice of entry of judgment, or 180 days after the entry of the judgment

Grounds for a new trial include the following:
1) Prejudicial error at trial that makes the judgment unfair
2) new evidence that could not have been obtained for the original trial through due diligence
3) prejudicial misconduct of a party or attorney or third party or juror
4) judgment is against the weight of the evidence
5) excessive damages or inadequate damages

Question 44

Post-Trial Issues - Motion to Set Aside Judgment

Answer 44

Motion to set aside the judgment can be based on:
1) clerical errors;
2) neglectful mistakes;
3) newly discovered evidence that could not reasonably be discovered for the original trial;
4) fraud, misrepresentation, or other misconduct of a party; or
5) Judgment is void for lack of due process
6) Timing: a motion to set aside a judgment based on fraud, neglectful mistakes, or newly discovered evidence may not be brought more than 1 year after the judgment.

Question 45

Post-Trial Issues - Conditional New Trial on Damages

Answer 45

Conditional new trial on damages only: remittitur and additur
- Remittitur: This occurs when a judge orders that a new trial for the defendant will take place unless the plaintiff agrees to a reduced award of damages because the judge finds that the damages awarded by the jury were so excessive as to shock the conscience
- Additur: this occurs when a judge orders that the plaintiff will get a new trial unless the defendant agrees to an increased award of damages because the judge finds the damages awarded by the jury were insufficient
o> Fed: not permitted in fed ct
o> CA: Yes permitted in CA state courts

Question 46

Appeal - Final Judgment Rule

Answer 46

Final Judgment Rule: only final judgments may be appealed. A final judgment is an ultimate decision made by the trial court ON THE MERITS of an entire case such that there is a final judgment as to all parties and alll causes of action.

Question 47

Appeal - FJR Exceptions

Answer 47

Exceptions to the FJR:
- Despite the rule, the folowing orders may be appealed before a final judgment:
o Injunctions and some interlocutory orders
o Trial court certifies an interlocutory order for appeal
o collateral orders, such as those regarding procedural issues
o multiple claims or parties are involved in the case and some issues are pending, but the issue is resolved as to one claim or party and the judge expressly determines that the order as to that party is final
 CA: a judgment as to one of several parties is considered a final judgment and can be appealed. Unlike the fed rule, an express determination is not required
o Extraordinary writ: if an order is not otherwise appealable and the circumstances are exceptional, the aggrieved party may seek a writ of mandate to compel the lower court to act, or refrain from acting
o Certification of class actions

Question 48

Appeal - Standards of Review

Answer 48

Standards of Review:
1) Matters of law are reviewed de novo, meaning the appellate court can substitute its judgment for that of the trial judge.
2) Questions of fact determined by a judge are reviewed using a clearly erroneous standard.
3) Questions of fact determined by a jury are reviewed using the even more deferential standard of viewing the finding of fact in a light most favorable to affirming the jury’s verdict, and determining whether a reasonable jury could have reached the same conclusion.
4) Mixed questions of fact and law are reviewed de novo, which means the appellate court can substitute its judgment for that of the trial judge.
5) Matters discretionary to the judge are reviewed using an abuse of discretion standard, which means such matters will only be overturned if clearly wrong

Question 49

Appeal - Time Limits to Appeal

Answer 49

Federal: must file notice of appeal within 30 days after entry of final judgment

CA: must file notice of appeal within 60 days after service of notice of entry of judgment; or 180 days after entry of the judgment if no notice is served

Question 50

Use of Final Judgment - Res Judicata = Claim Preclusion

Answer 50

Claim preclusion precludes relitigation of a claim that has already been decided in prior litigation between the same parties in the same configuration. A subsequent suit based on the same claim will be barred where the first claim meets 3 requirements:
1) There is a valid final judgment on the merits
a. Fed: a judgment is final when the judgment is rendered
b. CA: a judgment is final when the appeals have concluded.
2) The same plaintiff and same defendant were parties (or in privity) in the prior case and subsequent case.
a. A privy is a successor in interest to the property or claim, or is a representative of the party.
b. “Strangers” to the prior litigation cannot be bound under res judicata/claim preclusion
3) the same claim (cause of action) is asserted in the prior case and the subsequent case.
a. Fed: all legal theories arising from the same transaction or occurrence are the same claim
b. CA: follows the primary rights theory, which allows a separate cause of action for the invasion of each primary right. Personal injury and property damages are treated as separate causes of action even if both in the same T/O because under primary rights theory they aren’t considered as being part of the “same claim”

Question 51

Use of Final Judgment - Collateral Estoppel = Issue Preclusion

Answer 51

Collateral Estoppel / Issue Preclusion stops litigation of a particular issue that has already been decided in prior litigation. A subsequent suit based on the same issue will be barred where the first claim meets the following requirements:
1) There is a valid final judgment on the merits
a. Fed: a judgment is final when the judgment is rendered
b. CA: a judgment is final when the appeals have concluded. Under CA law, it would also not be “on the merits” if Case 1 was dismissed under statute of limtitations.
2) The same issue was actually litigated (look for facts like “extensive evidence” being heard in the first case)
3) The issue was necessarily determined (essential to the judgment)
a. To issue spot this, it’s often triggered when the underlying court finds P didn’t own the property in the dispute, but finds D wasn’t negligent anyways, or the doctor isn’t an agent of the hospital being sued, but finds on negligence issue anyway
b. Look for facts seemingly peripheral to a judgment
c. Look for specifi findings for the underlying judgment
4) Collateral estoppel can be used only against someone who was a party (or in privity with a party) in the prior suit in the interest of fairness (so they have an opportunity to defend the action)
5) collateral estoppel can only be used by:
a. Traditional: rule of mutuality applied and party asserting colalteral estoppel ahd to be a party (or privy) in the prior case to assert collateral estoppel.
b. CA: allows a “stranger” to the prior case to rely on a prior judgment if doing so is “fair”
i. Defensive Nonmutual Issue Preclusion: use of prior litigation to avoid liability will be allowed where the party against whom collateral estoppel is being asserted had a fair opportunity to be heard on the critical issue in the prior case
ii. Offensive Nonmutual Issue Preclusion used to establish an issue in a subsequent suit is disfavored and will be allowed only when it is fair and equitable