CA Civil Procedure Flashcards
1
Q
Personal Jurisdiction (PJ)
A
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)
2
Q
PJ is also know as:
A
In Personam Jurisdiction
In personam jx is required to impose a personal obligation on the Defendant.
3
Q
Statutory Analysis
A
The Statute reaches the Constitutional limit.
4
Q
CA’s Registration Statute
A
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.
5
Q
Subject Matter Jurisdiction
A
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.
6
Q
Superior Court of CA
A
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
7
Q
Within the Superior Court, there are Different Classification of Cases (3):
A
(1) Limited Civil Cases;
(2) Unlimited Civil Cases; and
(3) Small Claims Cases
8
Q
Limited Civil Cases
A
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.
9
Q
Unlimited Civil Cases
A
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.
10
Q
Small Claims Cases
A
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.
11
Q
How to Determine Classification
A
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.
12
Q
Reclassification
A
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
13
Q
Automatic Reclassification
A
If the Plaintiff amends her complaint in a way that changes the classification, the clerk of the court will reclassify the case.
14
Q
On Motion Reclassification
A
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.
15
Q
Reclassification from Unlimited to Limited
A
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.
16
Q
Reclassification from Limited to Unlimited
A
Reclassification from Limited to Unlimited is OK if the Judge finds:
There is a possibility that the verdict will exceed $35,000.
17
Q
Effect of Multiple Claims
A
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.
18
Q
Venue
A
The case will be filed in an appropriate county in California.
19
Q
Local Actions
A
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.
20
Q
Transitory Actions
A
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.
21
Q
Contract Cases - Additional Venue
A
In contract cases, venue also is OK in the county where the contract was entered into or to be performed.
22
Q
Personal Injury or Wrongful Death Cases - Additional Venue
A
In PI or wrongful death cases, venue also is OK in the county where injury occurred.
23
Q
Action Against a Corporation or Unincorporated Business
A
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.
24
Q
Action Against a Nonresident of CA
A
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.
25
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.
26
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.
27
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.
28
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.
29
Forum Selection Clauses
CA courts enforce reasonable forum selection clauses that call for the action to be tried in another state.
30
Venue Selection Clauses
Venue selection clauses will be upheld only if the chosen venue would otherwise have been permissible under an applicable statute.
31
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).
32
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.
33
Personal Service
Personal service means delivering to the Defendant anywhere in CA and personal service is basically the same as in Federal Court.
34
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.
35
Substituted Service is Deemed Effective on:
Substituted service is deemed effective on the 10th day after mailing.
36
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.
37
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.
38
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.
39
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.
40
Serving Process Outside of the US
Same as in Federal Court
41
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.
42
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.
43
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)
44
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.
45
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.
46
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.
47
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.
48
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.
49
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.
50
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.
51
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.
52
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).
53
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.
54
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.
55
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.
56
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).
57
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;
58
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.
59
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.
60
General Appearance
General appearance constitutes consent to PJ. General appearance is one that engages the merits of the case or asks the court for relief.
Making a general appearance waives defense of PJ, improper process, improper service of process.
General Appearance Examples: An answer, a demurrer, a motion to strike, a motion to transfer venue, and a motion to reclassify case.
Note: CANNOT raise PJ by affirmative defense, must make a special appearance w/ motion to quash.
61
If Court Denies Motion to Quash
Then the Defendant must plead within 15 days. And because demurrer is a pleading, you could demur or answer within 15 days.
If the Court denies the motion to quash service of summons, Defendant cannot wait until final judgment and raise the issue on appeal. The only way to seek appellate review is to seek writ of mandate from the Court of Appeal.
62
Motion for Inconvenient Forum (Forum Non Convenient)
The motion is waived if it is raised after a demurrer or motion to strike. The motion may be made in the Defendant's answer.
Note: Motion may be made even after the Defendant's answer.
63
Motion to Strike
A motion to strike can be used to strike irrelevant, false, or improper matter like in Federal Court.
64
Anti-SLAPP Motion to Strike
Legislature is concerned about strategic lawsuits against public participation (SLAPP). These are suits brought to chill the valid exercise of First Amendment rights.
It shifts the burden to the Plaintiff to show a probability of winning the case on the merits.
An anti-SLAPP motion to strike the suit can be filed and once Plaintiff shows that he was sued for protected activity (First Amendment rights) Plaintiff can sue called a SLAPPback suit.
65
General Denial
A general denial is one where the Defendant denies each and every allegation in the Plaintiff's complaint. A general denial is permitted if the Defendant can do so consistent with rules about frivolous litigation.
66
Affirmative Defenses
In stating affirmative defenses, the Defendant must state the ultimate facts sufficient to constitute an affirmative defense.
If Plaintiff files a verified complaint (under oath), the Defendant must filed a verified answer.
67
Timing for Defenses
No later than 30 days after service of process is deemed complete, the Defendant must (to avoid default) answer or demur or make one of the motions noted.
68
Claims by Defendant
Defendant can assert a claim against:
(1) Plaintiff;
(2) Co-defendants; or
(3) Impleaded third-party Defendant.
In Superior Court, all three of these claims are called cross-complaint. The cross-complaint must be a separate document from the answer.
69
Cross-Complaint Against the Plaintiff
A cross-complaint against the Plaintiff is like the federal counter-claim, except that it is not part of the answer but rather a separate document. A cross-complaint against the Plaintiff is to be filed before or at the same time as the answer.
If the cross-complaint by the Defendant against the Plaintiff arises from the same T/O as the Plaintiff's cause of action against Defendant, it is compulsory.
If the cross-complaint by the Defendant against the Plaintiff does not arises from the same T/O as the Plaintiff's cause of action against Defendant, it is not compulsory.
70
Cross-Complaint Against a Co-Party
A cross-complaint against a co-party is like the federal cross-claim. It may be filed at any time before the Court has set a trial date.
Claim against a co-party, by a defending party.
It must arise from the same T.O as the underlying dispute.
It is never compulsory. The party may sue on this in a separate case.
71
Cross-Complaint Against a Third-Party Defendant
A cross-complaint against a third party Defendant can be filed at any time before the Court has set a trial date. It is never compulsory, so you don't have to file it.
*Usually for indemnification or contribution.
72
Response by Plaintiff, Co-Party, or Third-Party Defendant for Cross-Complaints
The party against whom any cross-complaint is asserted must respond within 30 days of when service is effective.
73
Service of Process for Cross-Complaints
Sometimes required if the cross-complaint is asserted against someone who has not yet appeared in the case, it must be served w/ a summons.
74
Right to Amend
A Plaintiff has a right to amend before the Defendant files an answer or demurrer, or even after the demurrer is filed but before hearing on the issue raised by the demurrer.
However, this applies ONLY if the Plaintiff files the amended complaint no later than the date for filing an opposition to the demurrer. So, Plaintiff does not have a right to file an amended complaint the day before the hearing on the demurrer.
75
Leave to Amend
Any party may seek leave to amend at any time. The standard applies as in federal court.
76
Granting of Demurrer or Motion to Strike
If the Court sustains a demurrer or grants a motion to strike, the Court will usually do so with leave to amend. This allows the Plaintiff to try again.
If the Court sustains a demurrer or grants a motion to strike without leave to amend, the Plaintiff cannot try again.
77
Limit on # of times for Amended Complaints
There can be no more than three (3) amended complaints unless Claimant shows additional facts to be pleaded to cure the problem.
78
Relation Back and Fictitious Defendant
Relation back means that the filing date for an amended complaint is considered to be the filing date of the original complaint for statue of limitation purpose. Relation back is OK if:
(1) Original complaint was filed before the SOL ran and contained charging allegations against the fictitious defendant(s);
(2) Plaintiff was genuinely ignorant of the identity of the Doe Defendant(s); and
(3) Plaintiff pleaded that ignorance in the original complaint.
If all of these are met, and if Plaintiff substitutes the true Defendant within three (3) years of filing, it relates back to the original complaint's filing date.
79
Initial Disclosure Requirements in CA
(1) Initial disclosures must be demanded by a party, and a response to the demand is required within 60 days. Once demanded, all parties must comply w/ the initial disclosure requirements within that timeframe;
(2) Parties must provide the names of witnesses and documentary evidence, including an insurance that is relevant to the action;
(3) Scope of the disclosure is greater than in Federal Court. The party must not only provide the names of persons w/ knowledge and material will be use to support a claim or defense, but the names and material that are relevant to the pending subject matter, motion, or order also must be disclosed;
(4) A party must make these disclosures w/ information then reasonably available to them;
(5) Supplementation is not automatic. But a party may propound two later demands prior to the setting of a trial date to require the opponent to disclose after acquired and the Court may allow more than two on a showing of good cause;
(6) Certain cases are excluded from these requirements:
(A) Unlawful detainer actions;
(B) Family Court Cases;
(C) Probate Cases;
(D) Small Claims Cases; and
(5) Cases involving unrepresented party.
80
Discovery Timeline
P must get a court order to take discovery from D within 10 days after he was served w/ process (within 20 days to take D's depo)
81
Depositions (Limit and Length)
No presumptive limit on number of depositions to be taken in the case (compared to federal court where no more than 10 unless court orders/parties agree)
State and federal court: 1 day of 7 hours
82
ESI (Password-protected / inaccessible)
Deponent who is asked to produce ESI that is password-protected or otherwise inaccessible must provide either
(1) direct access to ESI or
(2) translation of ESI in useable/readable form
83
Form Interrogatories
Approved by Judicial Council; no limit to number of form interrogs that can be served on other parties
84
Special Interrogatories
Maximum allowed in an unlimited civil case is 35, including subparts.
More may be served w/ declaration of need but the responding party can seek a protective order
85
Requests to Produce (ESI)
ESI: party can specify form desired. No statutory limit on how many can be served w/o court permission in an unlimited civil case, but responding party can move for a protective order
86
Discovery from Nonparty
CA does not allow use requests to produce to get info from nonparty, but nonparty's deposition may be noticed and nonparty may be served with subpoena duces tecum
For business records, business can be served w/ subpoena w/o taking deposition
87
Medical Examination
* Court order is required
* Except in state court, D has right to demand one physical exam of P in only **personal injury** case
* If it is a physical exam, lawyer for that person has a right to attend that examination, but for mental exams lawyer can attend only if there is a court order allowing it
88
Requests for Admission
* Same as in federal
* Maximum number of requests for admission that can be served on a party in an unlimited case is 35 (same as interrogs)
* No limit on numbe of requests to admit the genuineness of documents
89
Discovery in Limited Civil Cases
* When P serves process, she includes completed form questionnaire consisting basic info about case and blank form for D to complete
* Beyond that, limited to ONE deposition
* Parties can ask for a combined total of 35 interrogs, inspection demands, requests for admission
* Before trial, party can request that the oponent disclose the Ws and evidence it intends to product at trial
90
Supplemental Discovery in Unlimited Cases
* There is NO standing duty to supplement discovery responses as long as info given was accurate and complete when given (compared to federal)
* May propond **supplemental interrog** to elicit later-acquired info bearing on answers previously made, and **supplemental demand for inspection** to demand inspection of later acquired or discovered docs or things
* Party must seek supplemental discovery, limited to **twice** before trial date is set AND once after that
91
Scope of Discovery Standard
A party can discover anything **relevant to the subject matter involved in the pending action**
Broader than admissible; just so it is reasonably calculated to lead to admissible evidence
92
Privilege (Preventing Waiver)
As in federal court, when a discovery request would intrude of work product/privileged matter, responding party MUST object w/ particularity or risk waiver
A party claiming privilege/protection must provide the court w/ privilege log
93
Privacy
CA Const recongizes right of privacy which can be claimed to limit discovery
NOT absolute - court **balances** the **need for info** against **need for privacy**
94
Work Product
* Material MUST be generated by thhe **attorney or her agent** (compared to federal court, where can be generated by party/rep)
* Writing that reflects attorneys' impressions, conclusions, opinions, legal research is **absolutely protected**
* A pro se can generate work product if it would be work product if generated by an attorney
95
Expert Witnesses
* Once a trial date is set, any party may request the simultaneous exchange of expert witness information
* Then each party must exchange a list of experts to be called at trial, declare the nature and substance of testimony, and the expert’s qualifications.
* Reports by the expert also may be demanded. A party may then take the expert’s deposition. If a party does not exchange this information, the
court may exclude its expert from testifying.
* Generally, information from/about consulting experts (who will not testify at trial) cannot be discovered
96
Discovery Meetings
Before case mgmt conference, parties must meet to discuss various topics -- discovery and potential problems w/ ESI
Parties generally must meet and confer to work out problems before seeking court orders
97
Who is Subject to Discovery Sanctions?
* Court may sanction anyone, including party/attorney, who misuses discovery process. Person to be sanctioned must be given notice and chance to be heard
98
Types of Discovery Sanctions
1. **Monetary** (expenses/attorneys fees incurred by the other party)
2. **Establishment order** (taking matters as established at trial)
3. **Refusal to allow a arty to support its position w/ evidence at trial**
4. **Striking pleadings**
5. **Dismissing P's case**
6. **Entering defalt judgment** against D
Court will usually start w/ monetary sanctions; it has broad discretion
99
Sanction for Discovery Misuse
When a party seeks sanctions for discovery misuse, she must indicate type of sanctions sought in the motion
100
Discovery Protective Orders
Party may seek a protective order against unwarranted annoyance, embarrassment, oppression, burden, expense
101
Discovery ESI Objection
A party can object ESI is not rx accessible b/c undue burden/expense but she must identify categories of sources that are not accessible
102
Impleader
Defending party joins someone new (TPD) who may owe him indemnity o contribution on the underlying claim. In CA, asserted in a **cross-complaint**
103
Interpleader
someone (the stakeholder) is in possession of property but knows that several people (claimants) want it. The stakeholder does not want to get sued by each of the claimants, so he sues them in “interpleader,” and the court figures out who owns the property.
104
Class Actions Requirements
1. **Ascertainable class**
2. **Well-defined community**: court will look at whether (1) common questions predominate; (2) the representative is adequate; and (3) the class will result in substantial benefit to parties and court
105
Does CA have types of class actions?
No separate types!
106
Class Actions Notice
* Notice may be given to the class by publication. Individual notice is not required.
**Federal court**: cost of notice is borne by rep
**CA state court**: court decides who will pay: representative, defendant, or shared
107
Effect of Opting Out of Class Actions
All class members who do not opt out are bound by the class judgment. Opt out may be allowed by the court.
108
Does CA require court appointed class counsel?
No
109
Approval of Settlement
court must approve settlement or dismissal of a class action
110
Determining the Amount in Controversy
The amount in controversy is aggregated
111
Preliminary Injunctive Relief
party may seek a court order maintaining the
status quo pending litigation on the merits
112
Voluntary Dismissal
* P may move to dismiss **any time before trial starts** The decision is for court to make
* Whether dismissal is w/ or w/o prejudice is up to court
* If P moves to dimiss **after trial starts** and court grants it, then it is **dismissal w/ prejudice** unless parties agree otherwise or court finds good cause to dismiss w/o prejudice
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Involuntary Dismissal
* All courts have authority to dismiss for failure to prosecute, failure to abide by court orders/rule, various reasons raised by demurrer, MTQ, etc
* CA state courts have **discretion** to dismiss if case has NOT been brought to trial OR D has not been served w/ process within **2 years of filing**
* CA stat ecourts MUST dismiss if:
1. case has **not been brought to trial within 5 years of filing** excluding all periods when case was stayed OR
2. **prcess has not been served within 3 years of filing** excluding time where stay made it impossible to serve process
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Default & Default Judgment
* If D fails to respond to the complaint within **30 days** of the effective date of service of process on him, he is subject to a default and default judgment.
* Cannot recover more than you asked for in your complaint
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Entry of Default Service of Application
must include affidavit stating that a copy of the application has been mailed to D or the defendant’s attorney of record
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When Default Judgment May be Entered by Clerk
Default judgment may be entered by clerk w/o judge's involvement if
1. D has made no response at all
2. Claim is on a K or judgment
3. Claim is for a sum certain in $
4. D was NOT served by publication
5. P provides an affidavit stating relevant facts
If any of above is not true, claimant must go to court to get a judgment - court will hold a hearing and has discretion to enter judgment
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Setting Aside Default or Default Judgment
D may move to set aside default/default judgment and for leave to defend case based on:
* mistake
* inadvertence
* surprise
* excusable neglect
* service of process did not result in actual notice to D
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Failure to Plead Facts Constituting a Cause of Action
D raises a failure to plead facts constituting a cause of action with a general demurrer
Compared to 12(b)(6) in fed court
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Motion for Summary Judgment vs. Summary Disposition
SMJ same standard as fed court
* **summary judgment** disposes of all causes of action in a case
* If a motion is aimed at determining less than the whole case, for example, to determine liability but not damages or to determine one of several causes of action, it is called **summary adjudication**
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Separate Statement of Material Facts
* The moving party must file and serve a separate statement of ma- terial facts she claims to be undisputed, with supporting evidence for each fact. If she does not, the motion can be denied
* If the moving party files and serves such a statement, the opposing party must respond by indicating the facts he believes to be in dispute and supporting evidence for each fact. If theopposing party does not, the court may grant summary judgment
* The moving party must serve all papers at least 75 days before the hearing on the motion. Opposition papers must be filed at least 14 days before the hearing. Reply papers by the moving par- ty must be filed no more than five days before the hearing. Judge rules on objections to evidence for that evidence relevant to the motion
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Recovery
* Party is not limited by the amount claimed in the complaint or a cross-complaint
* However, the complaint does limit recovery in default judgment cases
* In limited civil cases, no claimant may recover more than $35,000
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Right to Jury
7A NA, but CA Const grants right to jury trial
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Jury & Law/Equity
* Litigant receives jury to determine issues of fact relating to causes of action at **law** NOT equity
* Case involving both law and equity --> judge determines facts on equity cause of action **BEFORE** jury determines facts on law cause of action (different from federal)
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Equity Clean Up Doctrine (special CA rule)
When P's complaint states equity cause of action (ex: injunction against future trespass and incidental $ from past trespass) --> **no jury trial** at all b/c damages are incidental to equity cause of action. The center of gravity of case is **equity cause of action** --- Compare to federal court where there is a right to jury here to determine facts relating to the damages
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Requirement of Jury Demand
Party must announce her demand for jury-orally or writing-at time the **case is set for trial** OR within **5 days** after notice of setting of trial, usually in case mgmt stmt. Failure to demand constitutes **waiver**
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Number of Jurors
* **12** in civil cases UNLESS parties agree in open court to a lesser amount.
* If juror is excused for illness or other reason, alt juror takes place
* If there is no alternative, trial continues UNLESS a party objects
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Jury Selection & Challenges
* Unlimited **challenges for cause**
* 6 **preemptory challenges** (3 in federal)
Preemptory challenges may NOT be used on the basis of:
* color
* race
* religion
* sex
* national original
* sexual orientation
* similar grounds
Notice - broader than federal
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Jury Verdict - how many?
3/4th [9 out of 12]
compared to unanimous in federal
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Motion for Directed Verdict
AKA "JMOL" in federal court
**Standard** is **reasonable people could not disagree as to the result**
Technically, parties move for directed verdict only at close of all evidence
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Motion for Nonsuit
If D moves for directed verdict at close of P's opening stmt or at close of P's evidence at trial
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Motion for Judgment Notwithstanding the Verdict (JNOV)
* AKA RJMOL in federal court
* **Standard** = court is saying jury reached a conclusion reasonable people could NOT have reached [ same as directed verdict]
* **Timing**moving party must file notice of intent to move either (1) before entry of judgment or earlier of either (2) 15 days of mailing or service of notice of entry of judgment OR (3) 180 days after the actual entry of judgment
* No need to have moved for directed verdict in trial to be granted JNOV (compare to federal court where it's a prerequisite)
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Motion for New Trial Timing / Basis
* **Timing** moving party must file notice of intent to move either (1) before entry of judgment or earlier of either (2) 15 days of mailing or service of notice of entry of judgment OR (3) 180 days after the actual entry of judgment [SAME as JNOV]
* **Bases**: something convinces the judge that the parties should retry the case -- "the error complained of has resulted in miscarriage of justice"
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Excessive (Remittitur) or Inadequate (Additur) Damages
* Ground for new trial = excessive/inadequate damages; shocks the conscience standard used
* CA can use both remittitur AND additur
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Motion to Set Aside Judgment Basis / Timing
* Due to mistake, inadvertence, surprise, excusable neglect
* Motion must be made within rx time, not exceed 6 months after after judgment entry
* Ct must set aside judment if party's application is accompanied by a lwyer's affidavit of her own mistake, inadvertence, neglece
* Party can move to set asied judgment if servicce of process did NOT result in actual notice of the case to him
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Limited Civil Cases - Type of Jury Trial?
* Most limited civil cases are subject to **mandatory** expedited trial
* regular appeal rights apply
136
Unlimited Cases - Type of Jury Trial?
* In unlimited cases, the parties may agree to **voluntary** expedited trial
* parties waive right to appeal except in limited circumstances [misconduct of judge, corruption]
137
Expedited Jury Trials - Numbers and Stats
* 8 jurors, 4 preemptory challenges
* 6/8 needed for verdict
* Each side has max 5 hours to complete voir dire and present case
* parties may agree on how many Ws, evidence to be presented
* Parties my enter high/low agreement for D's liability for damages -- cannot tell jury
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Timing of Appeal
Notice of appeal must be filled w/ superior court within 60 days after mailing or service of the notice of entry of judgment
OR
180 days after entry of judgment if no notice is served
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Unlimited Case - where is it appealed to?
appeal is from superior court to CA court of appeal -- appeal is to district of the court of appeal to which the county is assigned
140
Limited & Small Claims - where is it appealed to?
appellate dep't of superor court
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Final Judgment Rule
Appeal cannot be lodged until merits of entire action are resolved.
Note - a judgment wrapping up the dispute as to **one o the several parties** is considered a final judgment and can be appealed in CA, **not** in federal court though
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Interlocutory (Non-Final) Review - Statutory Grounds for Appeal (7)
By statute, these orders are appealable:
1. **denying** [not granting] certification of an entire class action
2. **granting** [not denying] new trial
3. **granting** [not dening] motion to quash service of summons
4. **granting** dismissal or stay of a case for forum non conveniens
5. **denying** motion for JNOV
6. **granting, dissolving, refusing to grant or dissolve an injunction**
7. directing party or attorney to pay $ sanctions of over $5k
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Collateral Order Rule
Court of appeal may hear an appeal on:
1. an issue collateral to merits of case
2. that the tral court has decided finally if
3. it directs payment of money or perofrmance of an act
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Claim and Issue Preclusion - how is it often raised on bar exam?
motion for summary judgment b/c there would be no dispute on material issue of fact and somebody may be entitled to judgment b/c of judgment in case 1
145
Extraordinary [peremptory] writ
If an order is not otherwise appealable, the aggrieved party may seek a writ of mandate (compel **lower** ct to do something law requires) or prohibition (stop **lower** ct from doing somehing law does not allow). These are extraordinary and NOT routinely granted.
Requires seeking party to show
(1) she will suffer **irreperable harm** if writ not issued = lower ct result is harsh/unfair
(2) normal route of appeal from final jdgmt is inadequate
(3) she has a beneficial interest in outcome of the writ proceeding
If makes showing, not automatically entitled to writ, ALWAYS DISCRETIONARY
**Example** Seeking a writ of mandate for **denial of a motion to quash service of summons** is the **only** way to get appellate review.
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Claim or Issue Preclusion Effect? judgment in case 1 has been appealed or that the time for appealing has not yet expired
CA - judgment is not entitled to claim/issue preclusion effect, but in federal yes.
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What is "on the merits" for preclusion purposes?
general rule is that any judgment is on the merits, unless it is based on jx, venue, failure to join indispensible parties
CA -- NOT on the merits if case 1 was dismissed under SOL
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Primary Rights Doctrine
there is a separate cause of action for each right invaded -- personal injuries and property damage arising from same T/O are separate causes of action under CA peclusion law.
But under federal [majority] a claim is all rights to relief arising from T/O
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Conflict of Law: property, tort, K [unlikely to be asked detailed Q on conflcit of law]
* conveyance of real property -- apply law of state in which property is located
* Tort -- The court first determines whether the laws of the two (or more) states are identical. If they are not, the court evaluates whether each state has an interest in the application of its law. If each state has such an interest, a true conflict exists and the court then analyzes the compar- ative impairment to each state’s interest should the law of the other state be applied.
* K -- If the choice-of-law clause in a contract encompasses all causes of action, the court must determine whether the clause is enforceable by examining whether the chosen state’s law has a substantial relationship to the parties or their transaction or any other reasonable basis exists for the parties’ choice of law. If the clause is enforceable, the court then assesses whether the chosen state’s law conflicts with a fundamental California policy. If such a conflict exists, the court must decide whether California has a materially greater interest than the chosen state in the determination of the specific issue. If the contract does not contain a choice-of-law clause, or if it is unenforceable, the governmental interest approach generally applies
