California Civil Procedure Flashcards
1
Q
Personal Jurisdiction
A
Can P sue D in CA?
Satisfy state statute
Satisfy due process/constitution
Same as Fed
Statutory Analysis
“The statute reaches the constitutional limit”
Constitutional Analysis
Contact, Relatedness, Fairness
Purposeful availment with interactive website, likely not passive website
2
Q
SMJ: Superior Court
A
General subject matter jurisdiction
Almost ALL civil cases
Includes most cases arising under federal law
3
Q
Limited civil case
A
$25,000 or less
Limited discovery
cannot file a “special demurrer,”
and have expedited jury trial
Generally no permanent junction, declaratory judgment
NO CLAIMANT CAN RECOVER MORE THAN $50,000
4
Q
Unlimited civil case
A
Damages over $25,000 or equitable relief
Unlimited recovery if exceeds $25,000
5
Q
Small Claims case
A
Individual: $10k or less
Entity: $5k or less
6
Q
Classification of the case set by
A
Plaintiff initially sets classification with the claim alone
Note limitation in caption of complaint for limited
7
Q
Reclassification
A
SMJ not lost, just reclassified
Automatic:
Plaintiff changes complaint, automatic
On motion:
Hearing required and notice to all parties
Court can look beyond pleadings
From unlimited to limited ok if:
Verdict will necessarily result in $25k or less
$25k virtually unobtainable
Limited to unlimited:
Could go over $25k
Answer could automatically change it if cross complaint
8
Q
Venue
A
Local actions – Involving land
Venue in county where land lies
Transitory actions – All other actions
Rules:
County where any D resides when case filed
Contract cases – Where K entered into or to be performed
Personal injury or wrongful death – Where injury occurred
Corporation – PPB or under contract/personal injury rules
Unincorporated business – PPB or residence of any member or partner
Mixed claims – whatever is the more important relief
9
Q
Transfer of Venue on Motion
A
Original venue improper – transfer to proper venue
With or before the answer, demurrer, or motion to strike
Original venue proper – transfer in the interest of justice or no judge qualified to act in the present county
If parties don’t agree on transferee county:
The Court will decide the county
10
Q
Venue Selection Clauses
A
Only enforced if selected venue proper
11
Q
Forum Non Conveniens/Inconvenient Forum
A
Can’t transfer outside of system so use this
Far more convenient court in another judicial system
Interest in substantial justice, should be heard in forum outside CA
—Same factors as fed
—May grant on condition (waive PJ, SoL, etc)
12
Q
Service of Process: Substituted service
A
Only used if not possible to do personal
Requirements:
Usual abode
Competent member of the household over 18
Person must be informed of the contents
And prepaid first class mail send process
Effective on 10th day after mailing
13
Q
Service of Process: Serving by mail
A
Includes self-addressed stamped acknowledgement to return to P
Like waiver but considered service
D has 20 days to return form
Service is deemed complete when D executes waiver
14
Q
Service of Process: Service by publication
A
Absolute last resort
15
Q
Service of Process: Serving process outside CA
A
Any in-state method
Prepaid mail return receipt requested (no acknowledgement form needed)
D must sign receipt it was received
Effective on 10th day after mailing
16
Q
Service of Process: Subsequent documents
A
Mailed, add 5 days for response and 10 days out of state
17
Q
Frivolous Litigation
A
Statute mirroring Federal Rule 11
Statute to recover expenses and fees for bad faith or frivolous tactics
18
Q
Complaint
A
Statements of facts constituting cause of action
Demand for judgment
No need to allege SMJ (but note its a limited case)
Must state damage amount claimed
19
Q
Exceptions to: Must state damage amount claimed
A
Exceptions:
Forbidden in personal injury and wrongful death
Punitive damages cannot be stated in complaint
—D finds out amount with a “statement of damages” which P must provide within 15 days
——–Failure to supply, D can move for court order to compel
20
Q
Heightened Pleading for
A
Fraud, civil conspiracy, tortious breach of contract, unfair business practices, and products liability claims among multiple defendants resulting from exposure to toxins
21
Q
Fictitious Defendants
A
If the plaintiff is genuinely unaware of the identity of a 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 the “Doe” defendant (that’s a “charging allegation”).
Fictitious defendants may come up with statute of limitations issues.
22
Q
Verified Pleadings
A
Verified pleadings are signed under oath by the party.
Rare
Can be treated as evidence for summary judgment as they’re under oath
23
Q
Defendant’s Response
A
Defendant must respond in an appropriate way within 30 days after service of process is deemed complete.
24
Q
General Demurrer
A
Most important defense: Failure to state facts sufficient to constitute a cause of action
–Usually P can try again if sustained
Lack of SMJ
–Rare
A general demurrer is considered to be a pleading, but it acts like a motion because it can get the case dismissed.
25
Special Demurrer
Minor defenses, such as complaint is ambiguous or unclear or P lacks legal capacity
The lack of legal capacity;
The existence of another case between the same parties on the same cause of action;
A defect or misjoinder of parties; and
The failure to plead whether a contract is oral or written.
Not available in limited civil cases
Any defenses not addressed are waived
26
Special Rules on Demurrers
Parties must confer before filing demurrer, 5 days
If the parties cannot meet in that time frame, the defendant gets an automatic 30-day extension of time in which to answer or demur. To get this extension, though, the defendant must file 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 on or before the date of the demurrer is due. The 30-day extension runs from the time the demurrer was due.
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 met and could not resolve the issues or that the other party failed to meet and confer in good faith.
The defendant must raise all matters in the demurrer. So, if a plaintiff files a complaint, the defendant properly demurs, and the court sustains the demurrer, but grants the plaintiff leave to file an amended complaint, the defendant cannot demur to this amended complaint on grounds that were available to attack the first complaint.
27
Motion to Quash Service of Summons
Lack of PJ
Improper process
Improper service of process
28
Special vs General Appearance
Special appearance when making motion to quash service of summons
Must be made before or with demurrer or motion to strike
General appearance waives challenges to jurisdiction and process
General appearance such as answer or demurrer engages merits of case
29
If Motion to Quash Denied:
15 days to plead
Appellate review:
Need writ of mandate from court of appeal right away
30
Motion for Inconvenient Forum
Can make motion after answer but not after demurrer or motion to strike
31
Motion to Strike
A motion to strike can be used to strike “irrelevant, false, or improper matter,” like in federal court
32
Anti-SLAPP Motion to Strike
The legislature is concerned about strategic lawsuits against public participation (“SLAPP”).
These are suits brought to chill the valid exercise of First Amendment rights (for example, speech, petition of government).
What it does is shift the burden to the plaintiff to show a probability of winning the case on the merits.
Limited: D is not supposed to make motion if sued in public interest or on behalf of general public
If granted: Now D can sue P for malicious prosecution. This is called a “SLAPPback” suit
33
Answer
General denial and affirmative defenses
If verified complaint, must file verified answer
No demand for recovery
Must use cross-complaint
Timing:
No later than 30 days after SoP complete
34
Cross-Complaints
Separate from answer
Three types:
Against Plaintiff
----Filed before or at same time as the answer
----Compulsory: TOSTO
----Permissive: not TOSTO
Against Co-Party
----Must arise from same TOSTO
----Never compulsory
Against TPD
----Anytime before court has set trial date
----Never compulsory
--------Usually indemnity or contribution
Must respond within 30 days
Must serve summons to TPDs
35
Amending Pleadings
P has a right to amend before D files answer
----No right day before hearing for instance
Any party can seek leave to amend
----Just like federal court
Court granting demurrer or sustaining motion to strike usually gives leave to amend
There can be no more than three amended complaints unless claimant shows additional facts to be pleaded to cure the problem.
36
Relation Back and Fictitious Defendants
Relation back means that the filing date for an amended complaint is considered to be the filing date of the original complaint for statute of limitations purposes. Relation back is OK if:
----The original complaint was filed before the statute of limitations ran and contained charging allegations against the fictitious defendant(s);
----The plaintiff was genuinely ignorant of the identity of the Doe defendant(s); and
----The plaintiff pleaded that ignorance in the original complaint.
If all of these are met, and if plaintiff substitutes the true defendant within three years of filing, it relates back to the original complaint’s filing date.
37
Discovery: Required Disclosures
Technically, there are no required disclosures in California state court, but if all parties stipulate, the court can order initial disclosures (similar to the initial required disclosures in federal court)
38
Discovery Tools
The plaintiff must get a court order to take discovery from a defendant within 10 days after he was served with process (within 20 days to take the defendant’s deposition).
39
Deposition
Oral or written question
No presumptive limit on number
In state and federal court, the presumption is that a deposition consists of one day of seven hours.
40
Electronically Stored Information (“ESI”)
A deponent who is asked to produce ESI that is password protected or otherwise inaccessible must provide either
(1) direct access to the ESI; or
(2) a translation of the ESI in a useable (readable) form.
41
Interrogatories
Only for parties
Form interrogatories
---Approved by Judicial Council
---No limit on number
Special interrogatories
---No subparts
---Presumptive limit of 35 (unlimited civil case)
------Can do more with declaration of need for more
------D can get protective order
42
Requests to Produce (Inspection Demand)
Hard copy or electronic, must specify type
No limit on number
Not allowed for non-parties
---Use subpoena duces tecum here
43
Medical Examination
Court order required except for physical exam in personal injury case
Lawyer can be present for physical exam
---Only with court order for mental exam
44
Request for Admission
Limited number (35) except for requests to admit genuineness of documents
45
Discovery in Limited Civil Cases
When the plaintiff serves process, she includes a completed form questionnaire containing basic information about the case and a blank form for the defendant to complete.
One deposition may be taken.
The parties can also ask for a combined total of 35 interrogatories, inspection demands, and requests for admission
Shortly before trial, a party can request that the opponent disclose the witnesses and evidence it intends to produce at trial.
46
Supplemental Discovery in Unlimited Cases
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, a party can propound a “supplemental demand for inspection,” which demands inspection of later-acquired or later-discovered documents or things.
So, in state court, a party must seek supplemental discovery; the limit is twice before trial date is set and once after that.
47
Scope of Discovery
A party can discover anything “relevant to the subject matter involved in the pending action.”
Need not be admissible alone
48
Scope of Discovery: Limits
Privileged Matters
----Privileged log here too
Right of privacy
----Balances need for information and need for privacy
Work product
----In CA, must be generated by attorney or their agent
49
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
50
Enforcement of Discovery Rules
Meet and confer
Court may sanction anyone who misuses discovery process
Party may seek protective order
A party can object that ESI is not reasonably accessible because of undue burden or expense, but she must identify the categories of sources that are not accessible. (Same as in federal court.)
51
Sanctions
Monetary Sanctions
Merit sanctions
----Establishment order
----refusal to allow party to support its position with evidence at trial;
----striking pleadings
----dismissing the plaintiff’s case; or
----entering default judgment against the defendant.
When party seeks discovery sanction, must indicate the type of sanctions sought
52
Joining parties
Proper plaintiffs and defendants who may be joined
Necessary and indispensable parties
53
Impleader
D joins someone who owes contribution or indemnity (cross-complaint in CA)
54
Interpleader
Property stakeholder sues potential claimants
55
Class Action
the following must be shown:
An ascertainable class; and
A well-defined community of interest.
Common questions predominate
Representative adequate
Class will result in substantial benefit to parties and court
No types in CA
56
Class Action: Notice
Notice may be given to the class by publication. Individual notice is not required. In federal court, the cost of notice is borne by the representative. In California state court, the court decides who will pay: representative, defendant, or shared.
57
Notice
Notice may be given to the class by publication. Individual notice is not required. In federal court, the cost of notice is borne by the representative. In California state court, the court decides who will pay: representative, defendant, or shared.
58
Class Action: Opt Out
All class members who do not opt out are bound by the class judgment. Opt out may be allowed by the court.
59
Class Action: Appointment of Class Counsel Not Required
California does not require the court to appoint class counsel.
60
Class Action: Approval of Settlement
The court must approve settlement or dismissal of a class action, as in federal court.
61
Class Action: Determining the Amount in Controversy
The amount in controversy is aggregated. For example, suppose a class has 26,000 members, each of whom has been harmed $1. What is the amount in controversy for determining whether the case is limited or unlimited? $26,000.
62
Preliminary Injunctive Relief
As in federal court, a party may seek a court order maintaining the status quo pending litigation on the merits.
63
Voluntary Dismissal
The plaintiff can move to dismiss any time before trial starts. The decision is for the court to make.
Whether the dismissal is with or without prejudice is up to the court.
But if the plaintiff moves for voluntary dismissal after trial starts, and the court grants it, the dismissal is with prejudice,
unless the parties agree otherwise or the court finds good cause to dismiss without prejudice.
64
Involuntary Dismissal
All courts have authority to dismiss for failure to prosecute, failure to abide by court orders or rule, and for the various reasons that can be raised by demurrer, motions to quash, etc.
California state courts also have discretion to dismiss if the case has not been brought to trial (or defendant has not been served with process) within two years of filing.
In California, the court must dismiss if
(1) the case has not been brought to trial within five years of filing, excluding all periods when the case was stayed; or
(2) process has not been served within three years of filing, excluding time where a stay made it impossible to serve process
65
Default and Default Judgments
If the defendant 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. The procedure is very similar to federal court.
As in federal court, cannot recover more than you asked for in your complaint.
Notice of application for entry of default
Default judgment entered by clerk if
----D made no response
----Claim on contract or judgment
----Sum certain in money
----D not served by publication
----Affidavit stating relevant facts
Default judgment by court
Move by D to set aside default judgment
66
Failure to Plead Facts Constituting a Cause of Action
Instead of the Federal Rule 12(b)(6), in state court a defendant usually raises a failure to plead facts constituting a cause of action with a general demurrer
67
Summary Judgment vs. Summary Disposition
In California, 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.
68
Special California Procedural Points for summary judgment
The moving party must file and serve a separate statement of material facts she claims to be undisputed, with supporting evidence for each fact. If she does not, the motion can be denied.
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 party must be filed no more than five days before the hearing.
Judge rules on objections to evidence for that evidence relevant to the motion.
69
Recovery
At trial, a 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, and remember that, in limited civil cases, no claimant may recover more than $25,000.
70
Right to Jury
The Seventh Amendment does not apply in state court.
However, the California Constitution grants right to jury trial along the same law/ equity split as the Seventh Amendment.
71
Judge Jury Roles for Law and Equity
Judge decides equity facts before jury decides the law facts
No role for jury if damage claim incidental to equity cause of action
---Equity clean up doctrine
72
Requirement of Jury Demand
A party must “announce” her demand for jury (orally or in writing) at the time the case is set for trial or within five days after notice of the setting of trial. Usually, this is made in the case management statement.
The failure to demand constitutes waiver.
73
Number of Jurors
In state court, there are 12 jurors in civil cases unless the parties agree in open court to a lesser number.
If a juror is excused for illness or other reason, an alternate juror takes her place.
If there is no alternate, trial continues unless a party objects.
74
Jury Selection
In the voir dire process, each party may raise unlimited challenges for cause
Like in federal court, whether to strike the potential juror is the judge’s decision
Each party gets six peremptory challenges (in federal court it’s three per side).
Peremptory challenges may not be used on the basis of “race, color, religion, sex, national origin, sexual orientation, or similar grounds,” which is a little broader than in federal court.
75
Motion for Directed Verdict
JMOL for state court
Reasonable people couldn’t disagree
76
Motion for Non-Suit
If the defendant moves for this at the close of the plaintiff’s opening statement or at the close of the plaintiff’s evidence at trial, it is often called a motion for nonsuit
77
Motion for Judgment Notwithstanding the Verdict
A motion for judgment notwithstanding the verdict (“JNOV”) is what the federal courts call renewed motion for judgment as a matter of law (“RJMOL”).
Jury reached conclusion reasonable people could not have reached
78
Motion for Judgment Notwithstanding the Verdict: Timing
The moving party must file notice of intention to move either before entry of judgment or the earlier of these:
(1) 15 days of mailing or service of notice of entry of judgment; or
(2) 180 days after the actual entry of judgment.
No need to preserve right like in federal
79
Motion for a New Trial
Timing
The timing is the same as a motion for JNOV (see above).
Bases
The bases are the same as in federal court: something convinces the judge that the parties should retry the case; that is, “that the error complained of has resulted in a miscarriage of justice.”
80
Excessive (Remittitur) or Inadequate (Additur) Damages
One ground for new trial is excessive or inadequate damages. A “shocks the conscience” standard is used. As we saw in federal court, a court might try to avoid a new trial on this basis by suggesting “remittitur” or “additur.” California courts can use both remittitur and additur, whereas federal courts can use remittitur only.
81
Motion to Set Aside Judgment
A party may move to set aside judgment because of “mistake, inadvertence, surprise, or excusable neglect.”
The motion must be made within reasonable time, not to exceed six months after entry of judgment.
The court must set aside the judgment if the party’s application is accompanied by a lawyer’s affidavit of her own mistake, inadvertence, or neglect.
In addition, a party can move to set aside judgment if service of process did not result in actual notice of the case to him.
82
Expedited Jury Trial
Most limited civil cases are subject to “mandatory expedited trial.”
There are eight jurors and four peremptory challenges per side in an expedited jury trial.
Six of eight jurors are needed to reach a verdict
Each side has up to five hours in which to complete voir dire and present its case.
The parties may agree regarding how many witnesses, evidence to be presented, etc.
The parties may enter a “high/low” agreement, which sets out the defendant’s minimum and maximum liability for damages.
---The jury cannot be told of the existence or terms of the high/low agreement.
In a voluntary expedited jury trial, the parties waive the right to appeal except in very limited circumstances (for example, misconduct of judge, corruption that prevented fair trial). In a mandatory expedited jury trial, regular appeal rights apply.
83
Appellate Review: Basic Idea
In an unlimited case, the appeal is from the superior court to the California court of appeal.
The appeal is to the district of the court of appeal to which the county is assigned.
84
Appellate Review: Timing
Generally, the notice of appeal must be filed in the 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.
85
Appellate Review: Where Limited and Small Claims Are Appealed To
Judgments in limited civil cases and small claims matters are appealed to the appellate department of the superior court.
86
Appellate Review: Final Judgment Rule
Like federal courts, California follows the final judgment rule.
Generally, an appeal cannot be lodged until the merits of the entire action are resolved
Exception:
A judgment wrapping up a dispute as between one of several parties is a final judgment
87
Interlocutory Appeal of Non-Final Rulings: When
Denial of class action certification
Grant of a new trial
Grant of motion to quash service of summons
Grant of dismissal or stay for inconvenient forum
Denial of motion for JNOV
Grant or denial of issuance or dissolution of injunction
Order for sanctions over $5,000
88
Interlocutory Appeal of Non-Final Rulings: Collateral Order Rule
The 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
89
Interlocutory Appeal of Non-Final Rulings: Extraordinary (or Peremptory) Writ
If an order is not otherwise appealable, the aggrieved party may seek a writ of mandate (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).
These are extraordinary and not routinely granted.
Technically not an appeal
Separate case filed in court of appeal
90
Interlocutory Appeal of Non-Final Rulings: Extraordinary (or Peremptory) Writ: Requirements
Irreparable harm without repair
Normal route of appeal inadequate
Beneficial interest in the outcome
Still always discretionary
Important example: In what situation is seeking a writ of mandate the only way to get appellate review? The denial of a motion to quash service of summons.
91
Preclusion
Apply preclusion law of the system that decided case 1
Claim and issue preclusion are affirmative defenses and must be raised
Usually seen with motion for summary judgment
Differences between CA and Fed:
Effect of an Appeal
No preclusion if judgment is or can be appealed
On the Merits
Judgment not on merits if dismissed under statute of limitations, not precluded
Primary rights
Separate cause of action for each right invaded
