CA Civil Procedure Flashcards
Personal Jurisdiction (PJ)
Can the Plaintiff sue the Defendant in this State?
(1) There must be a state statute authorizing PJ over the Defendant (Statutory); AND
(2) The exercise of PJ must be Constitutional (Due Process)
PJ is also know as:
In Personam Jurisdiction
In personam jx is required to impose a personal obligation on the Defendant.
Statutory Analysis
The Statute reaches the Constitutional limit.
CA’s Registration Statute
Some states interpret registration of a corporation as consent to PJ. However, it appears that CA does not; registration is NOT a basis for exercising general personal jurisdiction.
Subject Matter Jurisdiction
Once there is PJ over the Defendant in CA and suit is in State (NOT Federal) Court, we have to find a court w. SMJ over the case.
There is ONE trial court in CA - Superior Court. Each of the 58 counties has one Superior Court.
Superior Court of CA
Superior Court has General Subject Matter jx. Meaning it can hear almost ANY civil case.
There are cases that the Superior Court CANNOT hear, case arising under SOME Federal Laws must be brought in Federal Court:
- Patent Infringement
- Bankruptcy
-Some Federal Securities - Antitrust Claims
Within the Superior Court, there are Different Classification of Cases (3):
(1) Limited Civil Cases;
(2) Unlimited Civil Cases; and
(3) Small Claims Cases
Limited Civil Cases
Civil case in which the amount in controversy does NOT exceed $35,000. If the Plaintiff demands exactly $35,000, this is a limited civil case.
In a limited civil case, you get:
(1) Limited discovery;
(2) Cannot file a “special demurrer”; and
(3) Have expedited jury trial.
Limited case generally cannot:
(1) Grant a permanent injunction;
(2) Declaratory judgment; or
(3) Determine title to land.
The biggest limitation is that in a limited case, no claimant can recover more than $35,000.
Plaintiff must note the classification in the caption of the complaint.
Unlimited Civil Cases
Civil cases in which the Plaintiff sues to determine title to land or seeks “general equitable relief.” I.e. permanent injunctions and declaratory relief.
If damages are sought, they must exceed $35,000.
Plaintiff does NOT have to note the amount in the caption of the complaint.
Small Claims Cases
Cases heard in a small claims division of the Superior Court. Litigants often do NOT have lawyers. The amount in controversy is $12,500 or less, and if the Plaintiff is an entity, it is $6,240 or less.
How to Determine Classification
Plaintiff initially determines the classification. The amount of the demand, or the recovery sought, or the value of the property, or the amount of the lien in controversy is considered to determine the case’s classification.
This does not include interest on the claim or costs.
Reclassification
If a case is misclassified or if subsequent events make it clear that the original classification should be changed, the case is simply reclassified. There are two ways:
(1) Automatic
(2) On motion
Automatic Reclassification
If the Plaintiff amends her complaint in a way that changes the classification, the clerk of the court will reclassify the case.
On Motion Reclassification
A party can move to reclassify, or the Court can reclassify on its own motion. When the Court reclassifies on its own motion, the Court must:
(1) Give notice to ALL parties; and
(2) Hold a hearing.
Note: In determining whether to reclassify, the Court does NOT consider the merits of the underlying claim. But, the Court can consider materials beyond the pleadings - it MUST consider judicial arbitration award.
Reclassification from Unlimited to Limited
Reclassification from Unlimited to Limited is OK if the Judge finds:
(1) Case will necessarily result in a verdict of $35,000 or less; OR
(2) More than $35,000 is virtually unobtainable.
Reclassification from Limited to Unlimited
Reclassification from Limited to Unlimited is OK if the Judge finds:
There is a possibility that the verdict will exceed $35,000.
Effect of Multiple Claims
The case is either limited OR unlimited; so when you have multiple Plaintiffs, only one claim must meet the unlimited requirements.
Plaintiffs may aggregate claims to satisfy the amount in controversy for an unlimited case.
Venue
The case will be filed in an appropriate county in California.
Local Actions
A local action is a case for recovery of land, determination of an interest in land, or to recover for injury to land (including trespass).
In a local action, venue is in the county where the land lies.
Transitory Actions
A transitory action is one that’s not a local action. Venue is OK in a county where ANY Defendant resides when the case is filed.
Contract Cases - Additional Venue
In contract cases, venue also is OK in the county where the contract was entered into or to be performed.
Personal Injury or Wrongful Death Cases - Additional Venue
In PI or wrongful death cases, venue also is OK in the county where injury occurred.
Action Against a Corporation or Unincorporated Business
If the Defendant is a Corporation, venue is OK in the county where:
(1) it has its Principal Place of Business (PPB);
(2) It entered into or is to perform a contract; or
(3) Breach occurred or liability arises
If the Defendant is an unincorporated business, venue is OK in county of PPB if that is on file w/ Secretary of State. Otherwise, venue is where any member or partner resides.
Action Against a Nonresident of CA
If ALL Defendants are nonresidents of CA, venue is OK in ANY county. But if there is a CA resident Defendant, venue must be proper as to him.
Mixed Cases
If Plaintiff joins Defendants or types of relief that call for different venues. The proper venue is wherever the main relief is sought.
Transfer of Venue
When venue is transferred, the case is moved from the Superior Court in one county in CA to the Superior Court in another county in CA.
A CA state court CANNOT transfer a case to a different State.
A federal court in CA can transfer a case to another federal district court outside of the state boundaries since federal district courts are considered to be part of the same court system.
Original Venue Improper
If the original venue is improper, the Defendant can move to transfer to a proper county. Motion must be made with or before the answer, demurrer, or motion to strike.
Original Venue Proper
If the original venue is proper, a court may, on motion, transfer if:
(1) There is reason to believe impartial trial cannot be had in the original venue;
(2) Convenience of witnesses and ends of justice would be promoted; or
(3) No Judge is qualified to act.
If the Court grants the motion under this statute, it transfers to a county on which the parties agree. However, if the parties do NOT agree - the Court chooses a county.
Forum Selection Clauses
CA courts enforce reasonable forum selection clauses that call for the action to be tried in another state.
Venue Selection Clauses
Venue selection clauses will be upheld only if the chosen venue would otherwise have been permissible under an applicable statute.
Inconvenient Forum (Forum Non Coveniens)
Inconvenient forum is where a Court dismisses or stays because the far more convenient and appropriate Court is in a different judicial system. By CA statute, state Courts may dismiss or stay on motion (motion by a party or by the Court).
To order a dismissal or stay, the Court must find that in the interest of substantial justice an action should be heard in a forum outside CA.
If the Court grants the motion, it may do so on condition (I.e. the Court may require that the Defendant waive a PJ or statute of limitations objections in the other forum).
Service of Process within CA
The Defendant must be served w/ process (a summons and a copy of the complaint). Served by any nonparty who is at least 18 years old may serve process.
(1) Personal Service; or
(2) Substituted Service.
Personal Service
Personal service means delivering to the Defendant anywhere in CA and personal service is basically the same as in Federal Court.
Substituted Service
Substituted service is service on another person at the Defendant’s usual place of abode.
(1) Unlike in Federal Court, substituted service may be used to serve an individual if personal service CANNOT w/ reasonable diligence be had. So personal service must first be attempted, and only thereafter may substituted service be used;
(2) Process must be left w/ a competent member of the household who is at least age 18 (more specific than Federal which requires service be made on someone of suitable age and discretion);
(3) Person served must be informed of the process’s contents; AND
(4) Process must also be mailed by first-class mail, postage prepaid to the Defendant.
Substituted Service is Deemed Effective on:
Substituted service is deemed effective on the 10th day after mailing.
Service by Mail
A copy of summons and complaint and two (2) copies of acknowledgement (waiver form) are mailed to the Defendant, with self-addressed stamped envelope addressed to the Plaintiff.
Works much like waiver in Federal Court, except this is considered “service” and not “waiver of service”.
(1) Defendant has 20 days to return the form (instead of 30 days in Federal Court); and
(2) Service is deemed complete when the Defendant executes the waiver.
Service on Corporations
A corporation or other business entity is served by delivering process to its:
(1) Agent for service of process; or
(2) An officer or general manager.
The agent may be served personally, or process left w/ someone apparently in charge at her office during usual office hours. Registered agents is served at the registered office.
Service of Publication
Service of publication is available only on affidavit from the Plaintiff’s attorney showing that the Defendant CANNOT be served, and after demonstrating that the Plaintiff’s attorney used reasonable diligence in trying to serve the Defendant in another way.
Service by publication is a last resort.
Serving Process Outside CA
Service outside of CA, but within the US can be accomplished by any of the methods allowed for in-state service.
Domestic out-of-state service may be made by mail, postage prepaid, return receipt requested. Deemed effective on the 10th day after mailing.
Note: Acknowledgement form is not required here.
The mailing must be return receipt requested, which is available through the Postal Service.
Serving Process Outside of the US
Same as in Federal Court
PJ Must Still Exist
Note - even if service is successfully completed, a proper statutory and constitutional basis must exist for the exercise of PJ over a Defendant not present in the State.
Immunity from Service
Unlike Federal Court, CA does not have immunity from service of process when the Defendant is in the state to take part in a Court proceeding. So, a person in CA to be a witness or party in another civil case can be served for a civil case in state courts, but is immune from service for a federal civil case.
Service of Subsequent Documents
Documents after initial service of process can be delivered or mailed (or, if the parties agrees, delivery may be by electronic means).
If mailed, five (5) days are added to time required for response (and 10 days if service is out of state). (Three (3) days are added in Federal Court)
Frivolous Litigation
Two (2) general statutes regarding frivolous litigation in CA state practice:
(1) Statute mirroring Federal Rule 11 - works just like Fed. R11 except the 21-day safe harbor provision allows a party to withdraw an offending pleading applies not only in motions brought by a party, but also when the Court raises the issue on its own.
(2) Statute to recover expenses and fees for bad faith or frivolous tactics in litigation.
*Frivolous means something raised was completely without merit or asserted for the sole purpose of harassing an opposing party. There must be a motion (by a party or the Court) and an opportunity to be heard. The 21-day safe harbor applies here too.
Complaint
CA has always followed fact pleading - what the jury or Judge as a fact-finder must find for the party to prove its case. In the complaint there must be:
(1) Statement of facts constituting the cause of the action, stated in ordinary and concise language. Facts means the ultimate facts;
(2) Demand for judgement (for the relief that the pleader claims to be entitled);
(3) Plaintiff need not allege SMJ;
(4) In a limited civil case, the caption to the complaint must state it is a limited case.
Pleading Damages
If the Plaintiff seeks damages, she generally must state the amount claim.
Exceptions:
(1) A Plaintiff is forbidden from stating damages amount in complaint in a PI or wrongful death action.
(2) Whenever the Plaintiff claims punitive damages, she is forbidden from stating the amount in the complaint.
Statement of Damages
In a PI or wrongful death case, Defendant requests Statement of Damages (SOD) which the Plaintiff must provide within 15 days. If the Plaintiff fails to provide the SOD, the Defendant can move for a Court order requiring her to do so.
Additionally, in PI or wrongful death cases, or any time the Plaintiff seeks punitive damages, the Plaintiff must serve SOD on Defendant BEFORE taking the Defendant’s default.
Fact Pleading
Pleader must allege the ultimate facts, what the jury or Judge as a fact-finder must find for the party to prove its case on each element of each cause of action.
Heightened Pleading
Circumstances constituting FRAUD must be pleaded with particularity.
Heightened pleading requirements also apply to civil conspiracy, tortious breach of contract, unfair business practices, and products liability claims among multiple Defendants resulting from exposure to toxins.
Fictitious Defendants
If the Plaintiff is genuinely unaware of the identity of the Defendant, she may name the Defendant as a “Doe” Defendant. The Plaintiff must also allege that she is unaware of the Defendant’s true identity and must state the cause of action against “Doe” Defendant (“charging allegation”).
Fictitious Defendants may come up w/ statute of limitations issue.
Verified Pleadings
Verified pleadings are signed under oath by the party.
They are rare, but are required, for example, in shareholder derivative suits and for suits against government entities.
Note: Verified pleadings can be treated as evidence for summary judgment.
Defendant Must Respond
Defendant must respond in an appropriate way within 30 days after service of process is deemed complete (in Federal Court it’s 21 days after service).
General Demurrer
A general demurrer can be used to assert some defenses. A demurrer based on failure to state facts sufficient to constitute a cause of action.
Just like the federal motion to dismiss for failure to state a claim, so the court takes factual allegations as true and limits its assessment to the complaint (and matters of which it takes judicial notice).
Demurrers are either sustained or overruled.
Demurrer asks: If these facts were true, would the Plaintiff win?
If answer is yes, the demurrer would be overruled.
If the general demurrer is sustained, the Court will usually let the Plaintiff try again to state a cause of action.
Demurrer can also raise lack of SMJ
Can be raised by Defendant as an affirmative defense in his answer or he can raise it in a motion for judgment on the pleadings after the Defendant has pleaded and time for demurrer has expired.
A general demurrer is considered to be a pleading, but it acts like a motion because it can get the case dismissed.
Special Demurrer
Special demurrer can be used to assert many (pretty minor) defenses:
(1) The complaint is uncertain, ambiguous, or unintelligible;
(2) Complaint is unclear about which theories of liability are asserted against each of the Defendants;
(3) Lack of legal capacity;
(4) Existence of another case between the same parties on the same cause of action;
(5) Defect or misjoinder of parties; and
(6) Failure to plead whether a contract is oral or written.
Note:
(a) Instead of a special demurrer, the Defendant can raise these various defenses in his answer as affirmative defenses. If the Defendant does NOT raise these defenses by demurrer or answer, they are WAIVED.
(b) Special demurrers are considered to be a pleading.
(c) Special demurrers are NOT available in limited civil cases ($35,000 or less cases).
Special Rules on Demurrers
(1) Parties must meet and confer before filing the demurrer (at least 5 days before filing the demurrer);
(2) If the parties cannot meet in that time frame, the Defendant gets an automatic 30 day extension, but Defendant must file (on or before the demurrer is due) and serve a declaration under oath that a good faith effort to meet and confer was made and stating why the parties could not do so.
- 30 day extension runs from the day the demurrer was due;
(3) If the parties do meet and confer, but the defendant then files the demurrer, the Defendant must include a declaration under oath stating either that the parties were unable to resolve the issues or that the other party failed to meet and confer in good faith;
Defendant Must Raise ALL Matters in the Demurrer
If Plaintiff files a complaint, the Defendant properly demurs, and the Court sustains the demurrer, but grants the Plaintiff leave to find an amended complaint, the Defendant cannot demur to this amended complaint on grounds that were available to attack the first complaint.
Motion to Quash Summons
A motion to quash summons is used to assert:
(1) Lack of PJ;
(2) Improper process; and
(3) Improper service of process.
When a Defendant makes a motion to quash service of summons is brought, she is making a special appearance (contrasted w/ general appearance). General appearance constitutes consent to PJ. To avoid waiving the three defenses, the motion to quash should be made before or with a demurrer, answer, or motion to strike. If a general appearance is made, these three defenses are waived (General demurrer; Special demurrer; Motion to Quash).
A Defendant can file a motion to quash service of summons at the same time as a demurrer, answer, or motion to strike. That is not a general appearance.