Cal Civ Pro Flashcards
Limited v. Unlimited Civil Case
Limited: amount in controversy does not exceed $25,000
P cannot recover more than $25,000.
Unlimited: amount in controversy over $25,000, everything else
If there is a motion to reclassify from unlimited to limited, reclassification is okay if the judge finds the case . . .
(1) will necessarily result in a verdict of $25,000 or less or
(2) more than $25,000 is virtually unobtainable
If there is a motion to reclassify from limited to unlimited, reclassification is okay if the judge finds
there is a possibility the verdict will exceed $25,000
What is the relevant place for laying venue in state superior court?
An appropriate county
Local Action v. Transitory Action
Venue
Local action is a case related to particular land. Venue is proper int he county where the land is.
If transitory, venue is proper (1) in any county where any defendant resides when the case is filed; (2) where a contract was entered into or performed; (3) where the injury occurred.
If the defendant is a corporation, where is venue proper in state court?
Where (1) it has its principle place of business or (2) where it entered or performed contract; or (3) where the injury occurred.
If D is an unincorporated business, venue is okay where?
In the county of its principle place of business if on file with secretary of state. Otherwise where any meter or partner resides.
Where is venue proper where all defendants are non-California residents?
Any county
California Complaint Contents
(1) Statement of facts constituting the elements of each cause of action in ordinary and concise language
(2) demand for judgment for relief to which the pleader claims to be entitled.
State Court: Defendant must respond within ______ days after service of process is deemed complete.
Federal Court: ______
30
21
General Demurrer
Can be used to assert some defenses. Most important, failure to state facts sufficient to constitute a COA
How may a defendant assert the defense of failure to state facts sufficient to constitute a cause of action?
(1) General demurrer
(2) Answer
Motion to Quash Service of Summons
Used to assert
(1) Lack of PJ
(2) Improper process; and
(3) Improper service of process
What happens if P sues D, then D files a demurrer, then, two days later, files a motion to quash service of summons
D has waived PJ, improper process, and improper service of process defenses because D made a general appearance by filing the demurrer first.
P sues D. D files an answer in which he asserts the affirmative defense of lack of PJ.
What result in federal court?
In state court?
Federal: PJ not waived because affirmative defense was raised in first Rule 12 response.
State: D has waived PJ defense because she made a general appearance by answering first.
When must a motion to miss or motion to stay for inconvenient forum be brought to avoid waiver?
Must be before demurrer or motion to strike but can come after an answer.
Motion to strike
Party can file it to strike all or part of any pleading if irrelevant, false, or improper
Relation Back in state court
Relation back is okay if P substitutes a true defendant within 3 years of filing and
(1) original complaint was filed before SOL ran and contained charging allegations against the fictitious defendants;
(2) P was genuinely ignorant of the identify of the Doe defendant; and
(3) P pleaded that ignorance in the original complain.
Are there required disclosures in state or federal court?
No in state court, yes in federal.
How to get discovery info from non-party in California?
Serve them with a subpoena duces tecum
Duty to supplement discovery responses federal v. state
State, no duty to supplement discovery responses if the information was accurate and complete when given. Must request supplemental discovery
Federal, duty to supplement
Scope of state discovery
Anything relevant to the subject matter involved in the pending action
California Class Action Rule
When the question is one of a common or general interest of many persons and it is impracticable to bring them all before the court, one or more may sure or defend for the benefit of all.
(1) ascertainable class and
(2) well defined community of interests
When is dismissal mandatory in CA?
If the case is not brought to trial within 5 years of filing or
process has not been served within three years of filing
CA. When can the clerk enter a default judgment?
(1) D has notice of the application for entry of default
(2) And
(a) D did not response at all
(b) contract or judgment claim
(c) sum certain in money
(d) not served by publication and
(e) P provides affidavit with relevant facts
Case Management Conference
Court must hold initial CMC within 180 days after filing of complaint to review service, pleadings, discovery issues, potential ESI problems, appropriateness of ADR, settlement, trial date, etc.
Number of jurors in state court v. federal
Verdict requirements
State: 12 unless parties agree in open court to lesser number. 3/4th of the jurors required for a verdict. (Or 8 and 3/4 if expedited)
Federal: at least 6, decision must be unanimous
Motion for directed verdict (state) and Judgment as a matter of law (fed)
what is the standard?
Move at the close of evidence.
Reasonable people could not disagree as to the result.
Motion for judgment notwithstanding the verdict (state) and Renewed Motion for judgment as a Matter of law (fed)
standard, timing
Standard: reasonable people could not disagree as to the result.
Timing: In state, must file notice of intention to move before entry of judgment or—within 15 days of notice of entry of judgment or 180 days after entry (whichever is first)
Federal, must move for motion for judgment asa matter of law before jury deliberations to preserve right for renewed motion.
Motion to set aside judgment
Can move for mistake, inadvertence, surprise or excusable neglect, within reasonable time not to exceed six months.
Timing for filing notice of appeal
Must be filed in trial court within 60 ays after mailing or service of the notice of entry of judgment or 180 days after entry of judgment if no notice served.
Claim and issue preclusion are _______ so defendant should raise them in her ________.
Affirmative defenses; answer
Effect of appeal for purposes of claim and issue preclusion. Federal v. state
Federal: even if first judgment has been appealed, it is entitled to preclusion effect.
Cal: If on appeal, no preclusion.
“On the merits” for preclusion purposes?
Federal: Any judgment unless it was based on jurisdiction, venue, or indispensable parties.
State: Same plus if based on statute of limitations.
Claim or cause of action for claim preclusion purposes
Federal v. State
Federal: all rights to relief arising from the same transaction or occurrence
State: primary rights—separate cause of action for each right invaded. (e.g. personal injuries and property damage are different COAs
