CALIFORNIA CIVIL PROCEDURE

Question 1

There is one basic trial court in California–the _______ _________. Each of the _____ counties has one.

Answer 1

Superior Court; 58

Question 2

The superior court has general subject matter jurisdiction. What does that mean?

Answer 2

Generally, they can hear any civil case.

Question 3

Are there any kinds of cases that the Superior Court cannot hear?

Answer 3

Yes, but very few. There are some federal question cases that must go to federal court, but very few. They include bankruptcy, federal securities and antitrust, and patent infringement. Outside of those, the Superior Court can hear any case, including cases that would invoke federal question or diversity of citizenship jurisdiction.

Question 4

What are the classifications of cases within the Superior Court?

Answer 4

1. Limited Civil Case
2. Unlimited Civil CAse
3. Small claims case

Question 5

What is a limited civil case? What are the limitations?

Answer 5

Civil cases in which the amount in controversy is $25,000 or less.
• limited discovery
• cannot file a special demurrer
• cannot get permanent injunction, declaratory judgment, or determine land to title.
• No claimant can recover more than $25,000!

Question 6

What is an unlimited civil case?

Answer 6

Includes civil cases in whcih P seeks general equitable relief (like perm. inj. or dec. judgment).

If damages, any case where the amount exceeds $25,000. Any claimant can recover any amount.

Question 7

What are small claims cases?

Answer 7

Heard in the small claims division of the Superior Court. Simple procedures.

Amount in controversy:
If P is an individual: $7500 or less
If P is an entity: $5,000 or less

Question 8

How is a civil case initially classified?

Answer 8

P intially determines what kind of case it is.
• Consider: the amount of the demand, or the recover sought, or value of the property, or amount of the lien in controversy.
• Does not include atty’s fees, interest, or costs.
• If P files a limited civil case, must note the classification in the caption of the complaint. No note if unlimited.

Question 9

If a case is misclassified or if subsequent events make it clear that the original
classification should be changed, does the court lose subject matter jurisdiction?

Answer 9

No, it is reclassified.

Question 10

What are the 2 ways a case can be reclassified?

Answer 10

1. automatically: If P amends her complaint in a way that changes the classification (raises or decreases the amount in controversy from limited to unlimited or unlimited to limited), clerk of the court reclassifies.
2. motion: A party can move to reclassify. Or the court can reclassify on its own motion. The court must give notice to all parties and hold a hearing.

Question 11

1. In determining whether to reclassify, can the court consider the merits of the underlying claim?
2. Can the court consider materials beyond the pleadings, such as a judicial arbitration award and settlement conference statement?

Answer 11

1. No. Don’t try the case to set the classification.

2. Yes, it can look beyond the pleadings and must consider a judicial arbitration award.

Question 12

1. If there is a motion to reclassify, the court may reclassify from unlimited to limited when the judge is convinced that the matter:
2. If there is a motion to reclassify, the court may reclassify from limited to
   unlimited when the judge is convinced that:

Answer 12

1. will necessarily result in a verdict of $25,000, OR that more than $25,000 is virtually unattainable.
2. There is a possibility the verdict will exceed $25,000.

Question 13

What is the rule for classification for a case with multiple claims?

Answer 13

The entire case is either limited or unlimited. So no case is mixed with some limited and some unlimited.

Question 14

P asserts three unrelated claims against D ␣ one for $12,000, one for $8,000, and one for $6,000. Can this be filed as an unlimited civil case?

Answer 14

Yes we can aggregate the claims of 1 P against 1 D. Here $26,000 is enough for unlimited.

Question 15

P-1 asserts a claim of $26,000 against D and P-2 asserts a claim of $14,000 against D in the same case. Can this be filed as an unlimited civil case?

Answer 15

Yes. P1’s claim is unlimited, so the whole case is unlimited.

Question 16

P sues D for $20,000 in a limited civil case. D files a cross-complaint against P for $26,000. What happens? (classification question)

Answer 16

The entire case is reclassified as unlimited. Any claimant can recover any amount.

Question 17

P sues D for $26,000 in an unlimited case. D files a cross-complaint against P for $12,000. What happens? (classification)

Answer 17

The entire case is unlimited. Any claimant can recover any amount.

Question 18

In federal court, we lay venue in an appropriate federal district. What is the relevant place for laying venue in state court?

Answer 18

a relevant county

Question 19

Cases for the recovery of land, or determination of an interest in land, or for injury to land are called “local actions.” (We did not worry about this in federal court.)
– In a local action, where do we lay venue?

Answer 19

For land, in the county where the land lies.

Question 20

If it’s not a local action, it’s called a _______ action.

Answer 20

transitory

Question 21

Venue choices for a transitory action:

Answer 21

General rule: Venue is ok in a county where any D resides when the case is filed.

• contracts cases: also ok in the county where the contract was entered or was to be performed.
• personal injury/wrongful death: also ok in the county where the injury occurred
• If D is a corporation, venue is OK in the county where:
  1. it has its principal place of business, or
  2. where ti entered or is to perform a contract
  3. where the breach occurred or liability arises.
• If D is an unincorporated business, venue is ok in county of PPB if that is no file with secretary of state. Otherwise, where any member or partner resides.
• If all Ds are non-residents of California, venue is ok in any county in CA.

Question 22

What if one case has some local and some transitory aspects? Or what if a transitory case has more than one venue possibility? How do you determine venue?

Answer 22

enerally, California courts follow the venue rule for the “main relief”– the principal object of the case.

Question 23

To transfer venue if original venue is improper, what should D do?

Answer 23

• mvoe to transfer to a proper county.

* Motion must be made with or before her answer, demurrer, or motion to strike.

Question 24

To transfer venue if original venue is proper, a court may, on motion, transfer if:

If teh court grants the motion under this statute, it transfers to a county on which the parties agree. What if they don’t agree.

Answer 24

1. there is reason to believe impartial trial cannot be had in the original venue; or
2. convenience of witnesses and ends of justice would be promoted; or
3. no judge is qualified to act.

• court chooses new county

Question 25

What is inconvenient forum or forum non conveniens for CA?

Answer 25

SAme as in federal court, where a court dismisses (or stays) because the far more convenient and appropriate court is in a different judicial system.

E.g state court in Missouri or a court in a foreign country.

Question 26

For forum non conveniens, by statute in California, state court may dismiss or stay on motion (by a party or by the court itself). IT must find that:

Answer 26

in the interest of substantial justice an action should be heard in a forum outside California.

Factors: Public/ Private (same as federal)
• public: what law applies, what community should be burdened with jury service, keepig local controversy in local court
• private: convenience: where are all the witneses and evidence?

Question 27

If the court grants a forum non conveniens motion, it may do so on condition. For example,

Answer 27

that D waive a personal jurisdiction or statute of limitations objection in the new forum.

Question 28

D must be served with ______, which consists of the ________ and a ______________.

Answer 28

process; summons; copy of the complaint

Question 29

Who may serve process in CA?

Answer 29

Any non-party who is at least 18 (same as federal).

Question 30

Can service be made outside CA?

Answer 30

Yes, in any manner allowed by CA law OR by mail, postage prepaid, return receipt requested. If by mail, deemed complete 10th day after mailing.

Question 31

D, a nonresident, is served with process in Bakersfield while in California to be a witness or party in a civil case. Is D immune from being served with process for a California state-court civil case?

Answer 31

No. CA has abolished this immunity. FRCP still have it.

Question 32

_______ service is good anywhere in the state, just the same as in ______.

Answer 32

personal; federal court

Question 33

In CA, you can only use substituted service to serve an individual if personal service cannot with _______ ________ be had.

Answer 33

reasonable diligence.

Must try personal service first and only if not possible can you use substituted.

Question 34

Requirements for substituted service are:

Answer 34

1. Must be made at D’s usual abode or mailing address
2. Must be left with a competent member of the household who is at least 18 (fed has no age)
3. That person must be informed of the contents (not req’d in fed); and
4. process must also be mailed by first-class mail, postage prepaid to D (not req’d in fed).

Question 35

When is substituted service deemed effective?

Answer 35

10 days after the mailing.

Question 36

How can you serve process on a corporation or other business?

Answer 36

Deliver process to agent for service of process or to an officer, or general manager. These people may be served personally or process left with someone apparently in charge at her office during usual office hours.

Question 37

Instead of waiver of service, CA allows service by mail. What are the requirements?

Answer 37

Copy of summons and complaint and two copies of acknowledgment (waiver form) are mailed to D, with self-addressed stamped envelope addressed to P. Works like waiver in federal court, except this is considered “service” instead of “waiver of service.”
• 1. D has 20 days (instead of 30 days in federal court) to return the form, and
• 2. Service is deemed complete when D executes the waiver.

Question 38

Service by publication is permissible only when:

Answer 38

affidavit from P’s attorney that D cannot be served, after demonstrating reasonable diligence to serve D in another way.

Question 39

As in federal court, subsequent documents can be delivered or mailed. In federal court if mailed, we added 3 days to time required for response. In CA, we add _____ days to time required for response and _____ days if the person is out of state.

Answer 39

5; 10

Question 40

CA has a statute that mirrors Rule 11 in FRCP. It works just like FRCP 11 except:

Answer 40

the 21 day safe harbor applies not only in motions brought by a party, but also when the court raises the issue on its own.

Question 41

There are 2 general statutes in CA that protect against frivolous litigation. They are:

Answer 41

1. The Rule 11 mirror (safe harbor change)
2. Statute that allows the court to order a party or his attorney or both to pay expenses and attys’ fees incurred by another party b/c of bad faith or frivolous tactics in litigation.
   • no safe harbor: can file motion immediately
   • must be a motion (by a party or the court) and opportunity to be heard.

Question 42

CA has always followed fact pleading. Requirements for the complaint include:

Answer 42

1. statement of facts constituting the cause of action, stated in ordinary and concise language. (ultimate facts)
2. demand for judgment for the relief to which the pleader claims to be entitled.

Question 43

Claim = _____ court

cause of action = ______ court

Answer 43

federal; state

Question 44

Complaint in a limited civil case must state:

Answer 44

in the caption that it is a limited case.

Question 45

In CA, if P seeks damages, must she state the amount in the complaint?

Answer 45

Generally yes. Except:

1. In personal injury & wrongful death, P is forbidden from stating damages amount.
2. Whenever P claims punitive damages, she is forbidden from stating the amt. in the complaint.

Question 46

So in a personal injury case and a case where the P is seeking punitive damages, P is forbidden from including a damages amount in the complaint. How does D find out the amount?

Answer 46

1. D requests a statement of damages
2. P must provide one within 15 days.

If P fails to do so, D can move for a court order requiring P to do so.

Question 47

In personal injury and wrongful death cases, and anytime P seeks punitive damages, what must P do before taking D’s default?

Answer 47

Serve a statement of damages on the D, even without a request.

Question 48

What does the requirement of fact pleading mean for the P?

Answer 48

Must allege the ultimate facts on each element on each cause of action.

Question 49

In CA, which causes of action have heightened pleading requirements?

Answer 49

Must be pleaded with particularity:

1. fraud
2. civil conspiracy
3. tortious breach of contract
4. unfair business practices
5. product liability claims among multiple defendats resulting from exposure to toxins

Question 50

If P is genuinely unaware of the identity of a D, she may name the D as a “Doe” defendant. She must also allege:

Answer 50

1. that she is unaware of the D’s true identity and

2. must state the cause of action against the Doe defendant (charging allegation).

Question 51

P, while walking in the crosswalk, is hit by a car driven by D-1. D-1 had been rear- ended by a car driven by D-2, which knocked D-1’s car into P. After the wreck D-2 flees; he had been driving a stolen car. P sues D-1 by name and sues D-2 as a Doe defendant. P also alleges that she is unaware of D-2’s true identity and states a charging allegation against D-2. Is this OK?

Answer 51

Yes, D-2 is a ficticious D.

Question 52

What are verified pleadings?

Answer 52

signed under oath by the party. They are rare, but are required, for example, in a shareholder derivative suit against gov’t entities. Remeber, verified pleadings can be treated as affidavits. * Comes up with summary judgment.

Question 53

D must respond to P’s complaint in an appropriate way _____ days after service of process is deemed complete. This requirement is ___ days for FRCP.

Answer 53

30; 21

Question 54

A general demurrer can be used to assert some defenses, the most important of which is ______.

What else can be raised by general demurrer?

Answer 54

failure to state facts sufficient to constitute a cause of action. (like motion to dismiss for failure to state a claim in fed)

• Court takes factual allegations as true and limits its assessment to the complaint (and matters of which it takes judidical notice). If sustained, court will generally let P try again.

2. lack of subject matter jurisdiction

Question 55

What is the standard for a general demurrer alleging failure to state facts sufficient to constitute a cause of action?

Answer 55

• Court takes factual allegations as true and limits its assessment to the complaint (and matters of which it takes judidical notice). If sustained, court will generally let P try again.

Question 56

Can lack of SMJ and failure to state facts be raised in the answer instead of a general demurrer.

Answer 56

Yes, as affirmative defense.

Question 57

Is a general demurrer considered a pleading?

Answer 57

Yes but it acts like a motion. No souch thing as motion to dismiss in CA so general demurrer.

Question 58

A special demurrer can be used to assert many ______ ______ defenses. For example:

Answer 58

pretty minor.

1. lack of legal capacity
2. existence of another case between the same parties on the same cause of action
3. defect or misjoinder of parties
4. failure to file a certificate of merit

• All can also be raised in the answer instead, except certificate of merit.

Question 59

what is a certificate of merit?

Answer 59

required to sue architects, land surveyors, and engineers for professional negligence. P’s atty must file a certificate certifying that she consulted with a professional an dthere is reasonable cause to file the case.

Question 60

Motions are either granted or denied. What about demurrers?

Answer 60

either sustained or overruled.

Question 61

A motion to quash service of summons is used to assert what defenses? What are the rules associated with this motion?

Answer 61

1. lack of PJ
2. improper process
3. improper service of process

• To allege any of these 3 will require a special appearance.
• This motion must be made before or along with a demurrer, answer, or a motion to strike, or else D waives these defenses

Question 62

P sues D. D files an answer in which he asserts the affirmative defense of lack of personal jurisdiction. That would be OK in federal court, because D raised PJ in her first Rule 12 response. But in state court, D has waived the defense of lack of personal jurisdiction. Why?

Answer 62

An answer is a general appearance. In order to assert one of the claims below, need a special appearance.

1. lack of PJ
2. improper process
3. improper service of process

Question 63

P sues D. D files a motion to quash service of summons at the same time as a demurrer, answer, or motion to strike. Is that OK?

Answer 63

Yes, this is not a general appearance. Still preserved the right to bring the defense.

Question 64

– If the court denies the motion to quash, D must plead within ____ days. Pleading includes ________.

Answer 64

15; demurrers

Question 65

If the court denies the motion to quash, there is only way to get appellate review. What is it?

Answer 65

You must seek a ␣writ of mandate␣ from the Court of Appeal within 10 days. So you cannot wait until final judgment to raise the issue in the Court of Appeal.

Question 66

What is the timing for a motion to dismiss or stay for inconvenient forum?

Answer 66

• If raised after a demurrer or motion to strike, then waived.
• Can raise it after an answer still.

Question 67

What is a motion to strike?

Answer 67

A party can file this to strike all or part of any pleading. The court may strike irrelevant, false or improper matter.

E.g. P files a malpractice case against an architect, engineer, or land surveyor without a certificate of merit. D can attack the complaint with a special demurrer or could move to strike the entire complaint.

Question 68

What is an anti-SLAPP motion to strike?

What’s a SLAPP back suit?

Answer 68

• Legislature concerned with strategic lawsuits against public participation (SLAPP), suits brought to chill the valid exercise of 1st amendmetn rights.
• When P sues D for an act D took in furtherance of her 1st amendment rights, D can make an anti-SLAPP motion to strike.
• D must make a showing that P’s cause of action arises from protected activity. If D makes that showing,
• the burden shifts to teh P to show the probability of winning on the merits.
• Huge–D’s love this!
• So many motions were made, now D is not supposed to make the motion if P’s case is truly in the public interest or on behalf of the general public.

SLAPPback suit= If D wins her anti-SLAPP motion, she can now sue the person who sued her. Claim is malicious prosecution.

Question 69

If D is filing a general denial as his answer, what does that mean?

Answer 69

short document in which D simply denies each and every allegation of P’s complaint. Permitted if D can do so consistent with rules about frivolous litigation.

Question 70

In stating affirmative defenses in an answer, be careful to ___.

Answer 70

state the ultimate facts sufficient to constitute an affirmative defense.

Question 71

If P filed a verified complaint, D must file a ___.

Answer 71

verified answer

Question 72

Can an answer include a demand for recovery against P, e.g. damages?

Answer 72

Nope. Need a cross complaint–a separate document.

Question 73

What is the timing requirement for D’s response to P’s complaint?

Answer 73

No later than 30 days after service of process is deemed complete, D must (to avoid default) file an answer or demurrer or one of the motions noted. But a motion to strike does not extend the time in which to demur, but it does extend the time to answer.

Question 74

As in federal court, D can assert a claim against ______, a ______ or against an ________. In federal court these claims all had different names: counterclaim, crossclaim, and impleader. In CA, all three are called:

Answer 74

the plaintiff; a co-defendant; an impleaded third-party D.

Cross complaints

• A cross complaint must be a separate document from the answer.

Question 75

One big difference between D’s response in fed. v. cali court is the name of D’s response. Also,

Answer 75

In CA, the cross complaint must be in a separate document. Can’t be in the answer like it can in Fed.

Question 76

What is a cross-complaint against P? When must it be filed? When compulsory/ permissive?

Answer 76

• Just like the federal counterclaim except must be made in a separate document.
• Must be filed before or at the same time as the answer
• If the cross-complaint against P arises from the same T/O it is compulsory.
• If the cross-complaint against P arises from different T/O it is permissive.

Question 77

What is a cross-complaint against a co-party?

Answer 77

• Just like the federal crossclaim.
• Can file anytime before teh court has set a trial date.
• Calim against a co-party, by a defending party
• Must arise from the same T/O as the underlying dispute
• It is never compulsory. Party may assert it her as a cross-complaint or may sue in a separate case.

Question 78

What is a cross-complaint against third-party defendnat?

Answer 78

• Like federal impleader
• may be filed anytime before the court has set a trial date
• never compulsory
• generally for indemnity or controbution

Question 79

The person against whom any cross-complaint is asserted must do what?

Answer 79

Must respond within 30 days.

Question 80

If the cross-complaint is asserted against one who has not yet appeared in the case it must be __________.

Answer 80

served with a summons

Question 81

P has a right to amend as a matter of course _______.After demurrer but before hearing on the issue raised by demurrer, any party has ______________.

Answer 81

before the D files an answer or demurrer

a right to amend once.

Question 82

Just like in federal court, in CA, any party can seek leave to amend ______.

Answer 82

anytime

Question 83

T/F Amendment to conform to the evidence is available in CA just like in Fed. Ct.

Answer 83

True

Question 84

T/F Relation back works as in federal court in CA.

Answer 84

True

To join a new claim will relate back if:
• amended pleadings relate back if they concern the same conduct, transaction or occurrence as the original pleading

To join a D:
• If it concerns the same conduct, transaction, or occurrence as original
• new party knew of this case within 120 days of its filing, AND
• she also knew that but for a mistake, she would have been named originally

Question 85

How does relation back work with a ficticious defendant?

Answer 85

Relation back is ok if:

1. original complaint was filed before teh statute of limitations ran and contained charging allegations against the fictitious D.
2. P was genuinely ignorant of the identity of the Doe D.
3. P pleaded that ignorance in the original complaint.

• If D substitutes the true defendant within 3 years of filing, it relates back.

Question 86

Are there any required disclosures in CA discovery?

Answer 86

Nope. Just in FEd.

Question 87

What are the differences between depositions in federal court and in CA?

Answer 87

• No presumptive time limit on deposition (fed = 1 day of 7 hours)
• no presumptive time limit on the number of depositions to be taken in the case (fed= no more than 10 unless court orders or parties agree)

Question 88

Interrogatories can only be sent to _____. In CA, there are form interrogatories, and there is __________ on the number of form interrogatories that can be served on other parties. If party wishes to draft specific interrogatories, the interrogatories cannot contain _______ and the maximum number allowed in an unlimited civil case is ______ unless you get a declaration of the need for more.

Answer 88

parties; no limit; subparts; 35

Question 89

What are the differences between requests to produce in fed. v. ca?

Answer 89

1. no limit on how many can be served (not sure this is a difference)
2. in fed court, ROPs can be used to et information from non-parties as long as paired with a subpoena. Not in CA. Can, however, take the non-party’s deposition and serve him with a subpoena duces tecum.
   * For business records, can just subpoena w/out a deposition.

Question 90

In CA, there is one type of case in which D has a right to demand one physical examination of D. What kind of case? What is the rule for all other cases?

Answer 90

physical injury

Just like in federal, must get a court order.

• In CA, if it is a physical exam, the lawer for that person has the righ tot attend the exam. If mental, the lawyer can attend only if there is a court order allowing it.

Question 91

Generally, requests for admission are treated teh same in CA as in federal court. But, what is the maximum number of requests for admission that can be served on a party in an unlimited civil case?

Answer 91

Treated the same as interrogatories.

1. If form, no limit.
2. If self-drafted, 35 or declaration of need for more.

• No limit on the number of requests to admit the genuineness of documents.

Question 92

In _______ civil cases in CA, thereare strict limits on the use of discovery devices.

Answer 92

limited (under $25,000)

Question 93

In a limited civil case in CA, how many depositions can a party take?

Answer 93

1.

Question 94

How many interrogatories, inspection demands, and requests for admission can each party propround to another party in a limited civil case?

Answer 94

combined total of 35

Question 95

In a limited civil case, can the parties ever get additional discovery?

Answer 95

only with a court order.

Question 96

What is the CA supplemental discovery rule?

Answer 96

Unlike in federal court, there is no standing duty to supplement discovery responses, as long as the information given was accurate and complete when given.

Instead, the requesting party can propound a “supplemental interrogatory” to elicit later-acquired information bearing on answers previously made.

Also, she can propound a “supplemental demand for inspection” which demands inspection of later-acquired or later-discovered documents or things.

Question 97

How many times can a party propound a supplemental interrogatory or supplemental request for production?

Answer 97

Twice before the trial date is set and once after that.

Question 98

What is the scope of discovery in CA?

Answer 98

Can discover anything relevant to the subject matter involved in the pending action.

*Slightly broader than the federal standard.

Question 99

As in federal court, __________ matter is not discoverable. When a discovery request
would intrude on ________ matter (e.g., confidential communication between attorney
and client), the responding party must object with ________ or risk waiver. Provide
the court with a ____________.

Answer 99

privileged; a privileged; particularity; privilege log

Question 100

The California Constitution recognizes a right of ________, which can be
claimed to limit discovery. It is not absolute, however.
– How does a court determine whether to allow discovery?

Answer 100

privacy; the court balances the need for the information against the need for privacy

Question 101

In federal court, work product can be generated by any party or any representative of a party, not just by attorneys. What is the rule in CA?

Answer 101

Work product must be generated by the attorney or her agent.

Question 102

Just like in federal court, in CA, a writing that reflects the attorney’s __________, ___________, _________, or __________ is never discoverable.

Answer 102

impressions, conclusions, opinions, legal research

Question 103

T/F: A pro se party can generate work product in CA if it would have been work product if done by an attorney.

Answer 103

True

Question 104

________ may request the simultaneous exchange of expert witness
information. Then each party must exchange ___________, and the _____________. You can also demand reports by the expert. A party may then take her deposition. If a party does not exhcange this information, the court may ___________.

Answer 104

any party; a list of experts to be called at trial; declare the nature and substance of testimony; the expert’s qualifications; exclude its expert from testifying

Question 105

T/F Parties generally must meet and confer to work out problems before seeking court orders. A party failing to do so is subject to monetary sanction of expenses, including attys’ fees incurred by the other party as a result of the failure to meet and confer.

Answer 105

true

Question 106

CA law prohibits misues of discovery, such as:

By statute, a court may sanction any person including parties and attorneys guilty of misusing the discovery process. The person to be sanctioned must be given
notice and a chance to be heard.

Answer 106

not playing by the rules,
making unjustified objections, abusive motions, failing to confer, refusal to respond,
etc.

Question 107

Sanctions for misuse of discovery in CA include:

Answer 107

(1) monetary sanction (expenses & attorney’s fees incurred by the other party because of misuse)
(2) establishment order,
(3) refusal to allow party to
support its position with evidence at trial,
(4) striking pleadings,
(5) entering default judgment against D or dismissing

*The court will usually start with monetary sanctions and move through the hierarchy
as warranted. It has broad discretion in selecting the appropriate sanction. The court
will look, among other things, to whether the abuse is willful.

Question 108

When a party seeks sanctions for discovery abuse, what must it indicate in the
motion?

Answer 108

The type of sanction sought– tell the court what you want.

Question 109

T/F: In both CA and federal, party may seek a protective order to protect against unwarranted annoyance, embarrassment, oppression, burden or expense in discovery.

Answer 109

T.

Question 110

A party can object that ESI is not reasonably accessible because of undue burden or
expense, but must identify _____________.

Answer 110

the categories of sources that are not accessible.

Question 111

In CA, proper plaintiffs and proper defendants are determined the same way as they are in FRCP, which is:

Answer 111

May join if the claims:

1. arise from the same transaction/ occurrence
2. raise at least one common question

Question 112

In CA, necessary and indispensable parties are determined exactly as they are in FRCP which is:

Answer 112

1. Necessary? Either:
   •Without A, the court cannot accord complete
   relief among existing parties (multiple suits)
   • A’s interest may be harmed if he is not
   joined; or
   • A claims an interest which subjects a party
   (usually D) to multiple obligations
2. Can A be joined? Feasible if:
   • there is personal jurisdiction over him, AND
   • joining him will not destroy diversity
3. If A cannot be joined, the court must either:
   • proceed without Bob, OR
   • dismiss the entire case
4. To determine whether to proceed w/out or dismiss court considers:
   • is there an alternative forum available?
   • what is the actual likelihood of harm to Bob?
   • can the court shape relief to avoid that
   potential harm to Bob?

Question 113

What is impleader?

Answer 113

Where a defending party wants to brin gin someone new–a 3rd party defendant. TPD may be liable to D for P’s claim against D.

Best examples= indemnity & contribution

Question 114

Steps for impleading:

Answer 114

1. file 3rd party complaint naming TPD
2. serve process on the TBD (must have PJ over TPD)
3. Assess subject matter jx.
   • Diversity or FQ? then ok.
   • If not, supplemental?

Question 115

After TPD is joined in an impleader, can the P assert a claim against the TPD?

Can the TPD assert a claim against P?

Answer 115

Yes, if the claim arises from the same T/O as the underlying case.

Yes, if the claim arises from the same T/O as the underlying case.

Question 116

An impleader in CA is called a __________, but acts the same as an impleader in federal court.

Answer 116

cross-complaint

Question 117

1. Fed and CA have the same rules for intervention of right which is :
2. The CA standard differs for permissive intevention. STate the federal & CA standards.

Answer 117

1. Intervention of right if A’s interest woudl be harmed if she is not joined ndher interest is not adequately represented now.
2. Fed: A’s cliam or defense and the pending case must ahve at least one common question. Discretionary with the court; ok unless delay or prejudice.

CA: same but requires that the applicant have an interest in matter in the litigation, or in the success of either of the parties.

Question 118

T/F The statute for class actions in California uses vastly different language than the Federal Rule.

Answer 118

True

Compare:

CA
Must show:
1. An ascertainable interest
2. A well-defined community of interest

To determine whether there is a well-defined community of interest look at whether:

1. common questions predominate
2. the req is adequate
3. the class will result in substantial benefit to the parties and the court

FED:
1. Initial requirements (show all)
• numerosity: too many class members for
practicable joinder
• commonality: there is some question of law
or fact in common to class
• typicality: Rep’s claims/defenses are typical
of those of the class; and
• rep is adequate: rep will fairly and
adequately represent the class.

Question 119

What is the CA requirement for class action?

Answer 119

Must show:

1. An ascertainable interest
2. A well-defined community of interest

To determine whether there is a well-defined community of interest look at whether:

1. common questions predominate
2. the req is adequate
3. the class will result in substantial benefit to the parties and the court

Question 120

In federal court, there are 3 types of classes. What about in CA state court?

Answer 120

Nope. Just one class action.

Compare FED:
Case must fit within one of 3 types:
• Prejudice: class treatment necessary to
avoid harm either to class members or to
party opposing class. An example is many
claimants to a fund. Individual suits might
deplete the fund, leaving some without
remedy.
• Injunction/ Declaratory Judgment (Not
damages) sought because class was treated
alike by other party: E.g. EM discrimination
• Damages: (1) common questions
predominate over individuatl questions and
(2) class action is the superior method to
handle the dispute. E.g. mass tort: 80
peopel injured.

Question 121

In CA notice may be given to the class by publication. Individual notice is not required. Is this the same as in federal court?

In federal court cost of notice is borne by the representative. What about CA?

Answer 121

1. Depends on the classification. Class 3 types of classes require individual notification. Class 1 and 2 require no notice.
2. The court decides who pays. Could be the rep, could be D, could be shared.

Question 122

T/F In CA, all class members who do not opt out are bound by the class judgment. Opt out may be allowed by the court.

Answer 122

T

Question 123

FRCP requires the ocurt to appoint a class counsel. Does CA?

Answer 123

Nope.

Question 124

T/F: Just like in Fed court, settlement or dismissal must be approved by the court.

Answer 124

T

Question 125

What is the big difference between federal and Cali law in terms of determining amount in controversy for a class action?

Answer 125

CA aggregates while Fed only looks at the representative’s claim amount.

So in CA could have class with 26,000 members, each of whom has been harmed $1. amount in controversy = $26,000. This wouldn’t work in Fed.

Question 126

P can move to dismiss anytime before trial starts. (voluntary dismissal). The decision is for the court to make.
Is such a dismissal without prejudice?

Answer 126

up to the court to decide (same as fed).

Question 127

T/F?: In CA, If P moves for voluntary dismissal after trial starts, it may be granted only with
prejudice, unless the parties stipulate otherwise or the court finds good cause to dismiss
without prejudice.

Answer 127

True. Before trial, can be granted with or without prejudice depending on what the court decides.

Question 128

All courts (federal and state) have authority to dismiss for failure
to prosecute, failure to abide by court orders or rule and, of course, for the various reasons
that can be raised by demurrer, motions to quash, etc.

*Additionally, California state courts have discretion to dismiss if:

Answer 128

the case has not been brought to trial

(or defendant has not been served with process) within two years of filing.

Question 129

In CA, there is mandatory dismissal. A case must be dismissed if:

Answer 129

1. Not brought to trial within 5 years of filing (exclude time when all proceedings were stayed), OR
2. Process is not served within 3 years after filing (exclude time when a stay affected service).

Question 130

Default and default judgment are very similar in CA to federal process. What is the CA procedure?

Answer 130

1. D must be given notice of the application for entry of default.
2. Default judgment can be entered by the clerk w/out the judge’s involvement if:
   • D made no response at all
   • the claim is on a contract or judgment
   • the claim is for a sum certain in money
   • D was not served by publication AND
   • P provides an affidavit stating relevant facts
3. But if any of those is not true, the claimant must go the the court itself for the jdugment. The court will hold a hearing and may enter judgment.
   * Usually there is no defualt judgment against a minor or incompetent unless counsel appeared for him.

Question 131

In both Fed and CA, default judgment cannot exceed _______________.

Answer 131

what the claimant demanded in her complaint or be a different kind of relief.

*This is different from a case that goes to trial, in which the claimant can recover more (and a different kind of relief) than she put in her complaint.

Question 132

D may move to set aside default or default judgment and for leave to defend the action
if ______________. Notice of motion must be accompanied by an affidavit attesting the lack of
notice was not the result of _______________or of _______________. Motion must be filed within reasonable time, not to exceed the earlier of these:

Answer 132

service of process did not result in actual notice of the suit to D within the time to
respond.

trying to avoid notice; inexcusable neglect

a) six months after service of written notice of default or default judgment or
b) two years after
entry of default judgment.

Question 133

Failure to plead facts constituting a cause of action. Instead of the Federal Rule 12(b)(6), in state court, how does D usually raise this?

Answer 133

General demurrer

Question 134

In CA, the standard for motion for summary judgment is the same/ different than the fed. standard?

Answer 134

The same.

Moving party must show that there is no genuine dispute of material fact and that she is entitled to judgment as a matter of law.

• Moving party must serve and file a separate statement of material facts she claims to be undisputed, with supporting evidence for each fact.

• 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 party must be filed no more than 5 days before the hearing.

Question 135

Case management conference. Rules of Court require the court to hold initial case
management conference within 180 days after filing of complaint. At the conference, the
court reviews service, pleadings, discovery issues, potential problems with discovery of
electronically stored info (ESI), appropriateness of alternative dispute resolution (ADR),
settlement, trial date, etc. Before the conference, parties must meet and confer and file a
Case Management Statement addressing such issues. Court issues case management
order. This is like the Federal Rule 26(f) conference (p. 31), but:

Answer 135

there is no requirement that the parties form a discovery plan to submit to the court.

Question 136

In CA, the court reviews each case to determine suitability for case management program. Actively managed to meet the goals of sidposition, which are: (unlimited & limited)

Answer 136

Unlimited cases: 75% to be disposed of within 12 months of filing, 85% within 18 months
of filing, and 100% within 24 months of filing.

Limited cases: 90% within 12 months, 98% within 18 months, 100% within 24 months.

Question 137

Sanctions. Court may sanction party or attorney for failing to comply with rules or orders.
E.g., may dismiss defendants not served within 60 days of filing. Sanction terminating the
case is OK only if the failure to comply was the fault of the party and not the attorney.

Answer 137

T

Question 138

What is judicial arbitration? Contractual arbitration?

Answer 138

Each county's Superior Court has an ADR program, to reduce court congestion. In larger counties, most unlimited civil cases are
submitted to "judicial arbitration" if the judge is of the opinion that P will ultimately obtain
$50,000 or less. But consumer class actions and probate cases cannot be sent to judicial
arbitration. In judicial arbitration the court refers the case to an arbitrator, who holds a
hearing; rules of evidence do not apply. Her decision becomes a judgment unless a party
demands trial de novo. But if that party does not get a better result in trial than in the
arbitration, she may be liable for the other side's cossts from the date of the rejection, the other side's expert witness fees, and interest on the claim from the date of rejection (not from the
from date of the judgment). With judicial arbitration, the parties have discovery rights.

In “contractual arbitration,” parties agree in writing to arbitrate a dispute. Such contracts are
are valid under Federal Arbitration Act (FAA) and state law if not the product of
unconscionability. A party can ask federal or state court to order arbitration per the
agreement and can ask a court to confirm the arbitrator’s decision. That decision can be vacated only on limited grounds, like fraud, but usually not for legal error. (Federal courts
will vacate for arbitrator’s manifest disregard of law (CA courts will not)). CA law does
not allow consumer contracts to waive class treatment and thus to require individual
arbitration of small claims. FAA preempts this law, and allows contracts to require
individual (not class) arbitration of small claims by consumers.

Question 139

What is the CA equity first rule?

Answer 139

In CA, if the case involves both law and equity, jury determines the facts on the law cause of action and judge determines the facts on the equity cause of action. BUT, unlike federal court, here, try the facts on the equity cause of action first, then the jury portion.

*Exactly opposite from federal facts where the law cause of action is heard first, then the jury is dismissed and the equity cause of action is heard.

Question 140

What is the equity clean up doctrine?

Answer 140

P’s complaint states an equity cause of action, for an injunction against future trespass, and also seeks incidental damages for past trespass. In federal court there is a right to have a jury determine the facts relating to damages.

In Cali, there is no jury at all because the damages are merely incidental to the equity cause of action.

Question 141

When must a party announce her demand for jury?

Answer 141

• at the time the case is set for trial or

* within 5 days after notice of the setting of the trial

Question 142

In state court, there are ____ jurors in civil cases unless the parties agree in open court to a lesser number.

Answer 142

12

Question 143

In cali, if a juror is excused for illness or other reason, an alternate juror takes her place. If there is no alternate, ____________.

Answer 143

trial continues unless a party objects

Question 144

In the voir dire process in CA, each party is entitled to ______ peremptory challenges and _____ challenges for cause. Peremptory challenges may not be bused on the basis of ________, ________, _______, _________, ___________, ________, or similar grounds.

Answer 144

6; unlimited

race
color
religion
sex
national origin
sexual orientation

Question 145

In federal court, the jury verdict must be unanimous unless the parties agree otherwise. In state court, what is required?

Answer 145

3/4 of the jurors to agree. (9/12)

Question 146

What is the CA equivalent of JMOL?

Answer 146

motion for directed verdict

Question 147

What is the standard for motion for directed verdict?

Answer 147

Reasonable people could not disagree as to the result. Parties can move for this only at the close fo all evidence.

*If D moves for this at teh clsoe fo P’s opening statement or at the close of P’s evidence at trial, it is often called a motion for nonsuit.

Question 148

What is the CA equivalent of renewed motion for judgment as a matter of law?

Answer 148

motion for judgment notwithstanding the verdict (JNOV)

Question 149

What is the standard for a motion for judgment notwithstanding the verdict JNOV? What are the timing requirements? Difference from FED?

Answer 149

1. Same as directed verdict: court is saying that the jury reached a conlcusion reasonable people could not have reached.
2. Timing: Must file notice of intention to move either before entry of judgment or the earlier of these:
   • 15 days of mailing or service of notice of
   entry of judgment or
   • 180 days after entry of judgment
3. Difference from federal: Party making the motion is NOT required to make motion for directed verdict at trial.

Question 150

Directed verdict is to judgment notwithstanding the verdict as judgment as a matter of law is to ____________.

Answer 150

renewed judgment as a matter of law

Question 151

What are the bases and timing requirements for a motion for a new trial?

Answer 151

Bases: same is in federal court: something convinces the court that the parties should retry the case. Proper only if the court concludes that the error complained of has resulted in a miscarriage of justice.

Timing: Must file notice of intention to move either before entry of judgment or the earlier of these:
• 15 days of mailing or service of notice of
entry of judgment or
• 180 days after entry of judgment
(SAME as JMOV)

Question 152

One ground for new trial is excessive or inadequate damages. What is the standard for ordering new trial on this ground?

Answer 152

The damages figure shocks the conscience.

Question 153

If the court finds that the damages figure shocks the conscience, but wants to avoid a new trial, the court might offer (or suggest) ___________ or _________.

Answer 153

remittitur or additur

Question 154

What is remittitur? Additur?

Answer 154

1. Remittitur: If court finds damages award is too high, the court can order a new trial or offer remittitur. This gives P a choice: take a lesser amount (which court sets) or go through new trial.
   * Ok in both federal and state.
2. Additur: court finds the damages figure shocks the conscience because it is too low. Court can offer new trial or additur. Gives D a choice: pay a greater amount in damages (which the court sets) or go through new trial.
   * Ok in state court, but unC in federal becasue it violates the 7th amendment which doesn’t apply in states.

Question 155

What is a motion to set aside judgment?

Answer 155

• A party may move to set aside judgment because of mistake, inadvertence, surprise, or excusable neglect.
• Motion must include an affidavit of fault by the party or lawyer demonstrating the mistake.
• If the ground is shown, the court must set aside the judgment.
• Court may order the party/lawyer to pay expenses and attorney’s fees incurred by the other side.
• Timing: reasoanble time, not to exceed 6 mos after entry of judgment.

Question 156

What is the basic rule for appellate review in CA?

Answer 156

In an unlimited case, we appeal from the Superior Court to the California Court of Appeal. Appeal is to the district of the Court of appeal to which the county is assigned.

*Judgments in limited civil cases and small claims matters are appealed to the appellate department of the Superior Court.

Question 157

What is the timing rule for filing an appeal?

Answer 157

Generally the notice of appeal must be filed in the trial 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.

Question 158

Does CA follow the final judgment rule?

Answer 158

Yup. Generally, one cannot appeal until the merits of the entire action are resolved.

Exception: In state court, a judgment as to one of several parties is considered a final judgment and can be appealed.

E.g.: P sues D-1 and D-2. The trial court enters summary judgment in favor of P against D-2.
That would not be a final judgment in federal court because the cause of action by P against
D-1 is still pending. In state court, however, a judgment as to one of several parties is
considered a final judgment and can be appealed.

Question 159

P sues D-1 and D-2. The trial court enters summary judgment in favor of P against D-2.
That would not be a final judgment in federal court because the cause of action by P against
D-1 is still pending. In state court, can P appeal the summary judgment?

Answer 159

Yes, in CA, the summary judgment is appealable because a judgement as to one of several parties is considered a final judgment and can be appealed.

Question 160

By CA statute, what interlocutory orders are appealable?

Answer 160

• • Order granting a motion to quash service of summons;
• • Order granting a dismissal or stay of a case for forum non conveniens;
• • Order granting new trial;
• • Order denying a motion for JNOV;
• • Order denying (not granting) certification of an entire class action;
• • Order granting, dissolving, or refusing to grant or dissolve an injunction;
• • Order directing party or attorney to pay monetary sanctions of over $5,000.

Question 161

What is the collateral order rule?

Answer 161

Court of Appeal may hear appeal on (1) an issue collateral to the merits of the case (2) that the trial court has decided finally, if (3) it directs payment of money or performance of an act.

Question 162

What is an extraordinary writ? Is it an appeal?

Answer 162

If an order is not otherwise appealable, the aggrieved party may seek a writ of mandate from the Court of Appeal (to compel a lower court to do something the law requires) or prohibition (to stop a lower court from doing something the law does not allow).

• It is technically not an appeal, but is an independent proceeding in the court of appeal.
• It is issued to an inferior court (e.g. Court of Appeal to Superior Court)
• Extraordinary, not routine.

Question 163

A party seeking an extraordinary writ must demonstrate:

Answer 163

(1) that she will suffer irreparable harm if the writ is not issued (i.e ., lower
court result is unusually harsh or unfair),
(2) the normal route of appeal from final judgment is inadequate,
(3) she has a beneficial interest in the outcome of the writ proceeding.

Question 164

If Case 2 is in a different court system (e.g., federal or state) from Case 1, which
system’s law applies regarding claim and issue preclusion?

Answer 164

Whatever system decided case 1.

Question 165

Case 1 is in federal court, where judgment is entered. Case 2 is in California
state court. What law of claim and issue preclusion does the state court judge use?

Answer 165

federal law because case 1 was decided under federal law

Question 166

Suppose the judgment in Case 1 has been appealed (or the time for appealing has not
yet expired). Is that judgment entitled to claim or issue preclusion effect?

Answer 166

Federal: Yes
CA: no

Question 167

Claim and issue preclusion are affirmative defenses, so defendant should raise them in
her answer. How is the issue often presented on the bar exam?

Answer 167

Almost every time its a motion for summary judgment because there is no dispute of fact.

Question 168

What is the idea of claim preclusion?

Answer 168

res judicata: you only get to sue on a cause of action (or claim) once. So if you have a cause of action (or claim), you only get one case in which to vindicate all rights to relief for it.

Question 169

What are the requirements for claim preclusion?

Answer 169

1. Case 1 and Case 2 were brought by the same claimant against the same defendant. (Not just the same parties, bu tsame guy suing the same guy in both cases).
2. Case 1 ended in a valid final judgment on the merits. General rule: Unless the court said otherwise when it entered the judgment, any judgment is on the merits UNLESS it was based on jurisdiction, venue, or indispensable parties.
   •Default judgment is on the merits
   • Judgment based upon disvoery abuse is on
   the merits.
3. Case 1 and Case 2 asserted the same cause of action (or claim).
   •Federal law: claim means transaction/
   occurrence
   • CA: you get one cause of action for each right invaded. So if a single accident caused both personal injuries and property damage, there would be two causes of action–one for the body and one for the property. Primary rights theory.

Question 170

What is the CA primary rights theory?

Answer 170

You get one cause of action for each right invaded. So if a single accident caused both personal injuries and property damage, there would be two causes of action–one for the body and one for the property.

Question 171

Case 1: P sues D for personal injuries sustained in an auto collision. A valid final
judgment on the merits is entered. Case 2: P sues D for property damage from the
same crash. Should the court enter summary judgment for D in Case 2 under the
doctrine of claim preclusion?

Answer 171

1. Were both cases brought by the same claimant against the same defendant? YES
2. Did Case 1 end in valid final judgment on merits? YES
3. Did both cases involve the same claim (federal) or cause of action (state)?
   • Federal: Yes. Same T/O so motion for
   summary judgment should be granted in
   Case 2.
   • CA: No. 2 cases involve different primary
   rights, so they are different causes of action.

Question 172

P and D are parties to a contract under which D is required to make monthly payments.
When P files Case 1, D has failed to make six such payments. Under federal and California
law, are there six separate claims here or only one claim or cause of action?

Answer 172

One under both. It consists of all breaches up to the time of filing.

Question 173

What is issue preclusion?

Answer 173

Narrower than claim preclusion. It precludes relitigation of a particular issue litigated and determined before. That issue is deemed established in Case 2 so it cannot be relitigated.

Question 174

What are the requirements for issue preclusion?

Answer 174

1. Case 1 ended in a valid, final judgment on the merits.
2. The same issue was actually litigated and determined in Case 1. (So probably doesn’t come from default judgment, e.g., where you didn’t litigate).
3. The issue was essential to the judgment in Case 1. Without this issue, the judgment in Case 1 would have been different.
4. Issue preclusion can only be asserted by one who was a party to Case 1 (or who was represented by a party) (req’d by due process)
5. Only somebody who was a party to Case 1 can use preclusion in Case 2: Mutuality. Not required by due process, so this can be abandoned.
   * This is abandoned in some cases: called nonmutual issue preclusion.

Question 175

Nonmutual defensive issue preclusion is:

Answer 175

Issue preclusion used by one who was not a party in Case 1 and is D in Case 2.

Question 176

DJ, driving Becky’s car, is involved in a collision with Joey. Assume Becky is vicariously liable for DJ’s acts. Case 1: Joey sues DJ. DJ wins, based on a finding that Joey was negligent, which caused the wreck. The court enters final judgment for DJ. Case 2: Joey sues Becky. Can Becky assert issue preclusion as to the finding of Joey’s negligence?

Answer 176

1. Did Case 1 end in a valid, final judgment on the merits? YES
2. Was the same issue litigated and determined in Case 1? YES
3. Was that issue essential to the judgment in Case 1? YES, IT IS WHY DJ WON
4. Is issue preclusion being asserted against one who was party to Case 1? YES
5. BUT, preclusion is being asserted BY someone who was NOT party to Case 1. Under mutuality rule, could not be done. How do we handle this under federal and California law?
   • FINE UNDER BOTH SO LONG AS JOEY HAD A FULL CHANCE TO LITIGATE IN CASE 1.

Question 177

For non-mutual defensive issue preclusion all of the regular issue preclusion requirements must be met, plus:

For non-mutual offensive issue preclusion all of the regular issue preclusion requirements must be met, plus:

Answer 177

Defensive: Fine under federal and CA law so long as the non-claimant had a full chance to litigate the issue in Case 1.

Offensive: Fine in fed and CA as long as it’s fair:
• Full and fiar opportunity to litigate in CAse 1
• Non-claiming party could foresee multiple
suits
• The claimant couldn’t have joined easily in
Case 1.
• There are no inconsistent judgmetns on the record. If there ahd been multiple litigation, sometimes Jeoy found negligent and sometimes not, it woudl be unfair to let Becky get issue preclusion on a negligence finding.

*Not clear how to weigh these. Just list them and discuss.

Question 178

What are the requirements for nonmutual offensive issue preclusion?

Answer 178

Offensive: Fine in fed and CA as long as it’s fair:
• Full and fiar opportunity to litigate in CAse 1
• Non-claiming party could foresee multiple
suits
• The claimant couldn’t have joined easily in
Case 1.
• There are no inconsistent judgmetns on the record. If there ahd been multiple litigation, sometimes Jeoy found negligent and sometimes not, it woudl be unfair to let Becky get issue preclusion on a negligence finding.

*Not clear how to weigh these. Just list them and discuss.

Question 179

Issue preclusion is also called

Answer 179

collateral estoppel