Civ Pro

Question 1

Proper court issues

Answer 1

1. Does the court have jurisdiction over the persons involved? (PJ)
2. Does the court have jurisdiction over the subject matter of the suit? (SMJ)
3. Is the venue proper? (Venue)
4. Does D have notice? (Notice)
5. What is the proper law the court should use? (Choice of Law/Erie)

Question 2

personal jurisdiction

Answer 2

PJ is proper where there is a sufficiently close relationship between the forum state and D.

Question 3

Three traditional basis for PJ

Answer 3

1. D consents to jurisdiction in the forum state
2. D is domiciled in the forum state (physical presence and subjective intent to remain.
3. D is present in the forum state when served with process.

Question 4

PJ over nonresidents

Answer 4

The minimum contacts standard allows PJ over nonresidents of the forum state provided there is a long-arm statute, and the exercise of PJ is in keeping with the constitutional requirements of the minimum contact standard.

Question 5

Long-arm statute

Answer 5

A long-arm statute is the mechanism that gives a state the power to reach beyond its own borders to assert jurisdiction over a nonresident. Two types of long-arm statutes:

1. CA long-arm statute: CA state courts have power over any person or property up to the limit of the Constitution, therefore minimum contacts standard is applied.
2. Specific long-arm statutes: some states have specific long-arm statutes that gives its courts power over nonresident only under specified situations. The exercise of jurisdiction msut satisfy that statute and also meet the constitutional requirements of the minimum contacts standard.

Question 6

minimum contacts standard (the constitutional limit to a state’s exercise of PJ)

Answer 6

D must have sufficient minimum contacts with the forum state such that asserting jurisdiction over him does not offend traditional notions of fair play and substantial justice.

Question 7

minimum contacts analysis

Answer 7

1. Purposeful Availment: has D purposefully availed himself of the benefit and protections of the state such that it is reasonably foreseeable that his activities subject him to being hauled into court here?
2. Relatedness of claim to contact with forum: is the claim at issue related to D’s contact in the forum state?

• specific jurisdiction: the claim directly arise from D’s contact with the forum state. The forum state has specific jurisdiction over D for that claim only.
• general jurisdiction: D’s contact with the state are sufficiently systematic and continuous that it renders D essentially at home in the forum state. The forum state may exercise jurisdiction over D for any cause of action.

3. Fairness factors:

• the convenience to the parties: P’s interest in obtaining convenient relief, location of the witnesses and evidence, and the burden on D to travel.
• the forum state’s interest in regulating activity within its borders and protecting its citizens.
• any other interests, such as the interstate efficiency interest.

Question 8

Subject matter jurisdiction

Answer 8

The court must have proper jurisdiction over the subject matter of an action.

Federal courts have limited jurisdiction and may only hear cases involving federal questions or diversity of citizenship.

Question 9

Federal question

Answer 9

Federal courts have SMJ over civil actions arising under federal law.

Question 10

Complete diversity is required for SMJ

Answer 10

no P may be a citizen of the same state as any D at the time the action is commenced.

Question 11

Diversity of citizenship

Answer 11

Federal courts have SMJ over actions between citizens of different states and where the amount in controversy exceeds $75,000.

Question 12

How to determine a natural person’s citizenship?

Answer 12

domicile: only one domicile for each person: domicile = physical presence + subjective intent to make it his permanent home.

Question 13

How to determine a corporation’s citizenship?

Answer 13

A corporate is a citizen of:

1. the state where the business is incorporated; and
2. the one state where the corporation has its principal place of business.

PPB is the nerve center of the corporation where its officers direct, controls, and coordinate the corporation’s acitivities.

Question 14

How to determine the citizenship of an unincorporated associations?

Answer 14

the citizenship of all and any members.

Question 15

How to determine the citizenship of minors, decedents, and incompetents?

Answer 15

It is determined by their own citizenship, not the citizenship of their representative or guardian.

Question 16

How to determine the citizenship of aliens?

Answer 16

Alienage jurisdiction permits SMJ when a case is between a U.S. citizen and a foreign subject or citizen.

Question 17

Exceptions to federal SMJ

Answer 17

Federal courts will not hear actions involving issueance of divorce, alimony, or child support, or to probate an estate.

Question 18

CA state court SMJ

Answer 18

CA courts have general jurisdiction and can hear any case not within the exclusive jurisdiction of another court.

unlimited civil cases: AIC exceeds $25k, heard in superior court, no limitation on pleadings, discovery or relief available.

limited civil cases: AIC of $25k or less, heard in superior court, has limitation on the use of process and the equitable relief available, and a claimant cannot recover more than 25k.

small claims cases: heard in small claim court and requires AIC for individual plaintiff be $10k or less and AIC for business entity plaintiff be $5k or less.

Question 19

Supplemental jurisdiction

Answer 19

applies when an additional claim shares a common nucleus of operative fact with a claim that invokes federal SMJ.

common nucleus of operative fact = claims arise from the same transaction or occurrence.

Question 20

Removal jurisdiction

Answer 20

allows D to have a case originally filed in state court removed to federal court where the case could have properly been brought in either state or federal court in the first place.

• only D are eligible to remove cases.
• diversity case: in diversity cases, D may not remove to federal court if he is a citizen of the forum state.
• venue: the case can be removed to a federal court that sit in the state court’s judicial district.
• timing: no later than 30 days after service of the first “removable” document, but never later than 1 year after the initial filing.

Question 21

Remand

Answer 21

When the removal is improper, the federal court can remand the case back to state court.

Question 22

Venue

Answer 22

The proper geographic district for a particular case to be heard.

Question 23

When is venue proper?

Answer 23

Venue is proper where a) the claim arose or b) the defendant resides. Alternatively, if no districts satisfy a) or b), venue is proper in any district where any defendant is subject to the court’s personal jurisdiction.

Question 24

Venue is proper where the claim arose

Answer 24

• Federal: venue is always proper in the district where a substantial part of the claim arose or where the land in dispute is located.
• CA: venue is proper in the county where the claim arose or where the land in dispute is located.

Question 25

Venue is proper where the defendant resides

Answer 25

• Federal: venue is proper in any district where any defendants reside if all defendants are residents of the same state.
• CA: venue is proper in a county where any defendant resides at the time the case is filed. If no D resides in CA, then any county is acceptable.

when D is a corporation:

• Federal: in all districts where they are subject to PJ if the district were a state.
• CA: in the county where they have their PPB, or where a contract was entered into or performed, or where contract breach occurred, or where liability arises.

Question 26

Transfer of venue when the original venue is proper

Answer 26

• Federal: Venue may be transferred to another federal court where the case could have been filed or all parties consent and there is proper PJ, SMJ, and venue.
• CA: the venue can be changed at the judge’s discretion where the interests of justice and convenience of the parties would be served by such a transfer.

Question 27

Transfer of venue when the original venue is improper

Answer 27

• Federal: the court must dismiss or in the interest of justice, transfer to a proper venue.
• CA: allows for the transfer of venue to a proper county when the court designated in the complaint is not the proper court.

Question 28

Forum non conveniens

Answer 28

Federal: a court may dismiss or stay a case if there is a far more appropriate forum elsewhere, such as another state or country.

CA: a court may dismiss or stay a case if another forum in another state or country is more suitable by looking at the interests of justice, including that the alternative forum is suitable and the private and public interest factors balance in favor of the alternative forum.

• public factors: what law applies, which community should be burdened with jury service; and
• private factors: convenience, location of witnesses, evidence, etc.

Question 29

Notice

Answer 29

D must be properly notified of a pending action by a reasonable method and must be given an opportunity to be heard.

Question 30

Service of process

Answer 30

to provide D with notice of a pending action by delivery to defendant of a summons and a copy of the complaint.

Question 31

Method of service

Answer 31

Service can be made by anyone who is at least 18 years old and not a party to the action.

Question 32

Personal service

Answer 32

personal service: always adequate and occurs when the notice is personally delivered to D.

Question 33

Substituted service

Answer 33

substituted service is usually adequate–

• Federal court: service can be left at D’s usual abode and served upon someone of suitable age and discretion who resides there, or served to D’s authorized agent; or served by methods permitted by state law.
• CA: allows substituted service only if personal service cannot be accomplished with reasonable diligence. Must be left at D’s usual abode with a competent member of the household who is at least 18 years old, and that person must be informed of the contents. The server must then mail a copy of the papers to the other party at the address the papers were left.

Question 34

Constructive service

Answer 34

Registered mail is only effective if D agrees to waive service of process.

CA: allows service by publication only if nothing else works.

Question 35

Erie doctrine

Answer 35

A federal court sitting in diversity must apply state substantive law, including statutes of limitations and the state’s conflict of law rules, and federal procedural law.

• policy goal: prevent forum shopping

Question 36

What can the judge do when it is unclear whether the law is substantive or procedural?

Answer 36

A judge will use one of the two tests:

• outcome determinative test: an issue is substantive if it substantially affects the outcome.
• balance of interests: the federal interest in having the federal law applied is balanced against the state interest in having the state law applied. If the state has a greater interest, then the law is substantive.

Question 37

CA Conflict of Law Rules are deemed substantive law under Erie

Answer 37

• torts actions: when two state laws are in conflict, the court evaluates the comparative impairment to each state’s interest in having its law applied;
• contract actions: if K have a choice of law provision, the provision will be applied so long as it has *8a reasonable basis and does not conflict** with CA policies. If it conflicts with CA policies, CA law will apply if CA has a materially greater interest in having its law applied.

Question 38

Pleading

Answer 38

• Federal courts uses notice pleading, the goal is to provide the opposing party with reasonable notice of the nature and scope of the claims being asserted.
• California courts uses fact pleading, more specific than notice pleading. Parties must. plead ultimate facts to support each element of the cause of action.

Question 39

Pleading requirements (Rule 11)

Answer 39

**Rule 11 requires all attorneys or a party representing himself to sign all pleadings, written motions and papers, certifying that hte paper is proper, the legal contentions are warranted by law, and the factual contentions have evidentiary support.

• 21-day safe harbor rule to correct/withdraw or sanction.

Question 40

Complaint

Answer 40

Federal: a federal complaint must include:

1. identification of the party
2. proper SMJ;
3. statement of the claim showing the factual basis on which P is entitled to relief.
4. a demand for judgment
5. signature of P or his attorney.

California: a CA complaint must include:

1. identification of the parties: CA allows P to sue fictitious “Doe” where D’s identity is unknown.
2. statement of the claim, including specific facts supporting every element of each legal theory alleged.
3. demand for judgment, including the amount of damages sought, unless the damages sought are for actual or punitive damages for a personal injury or wrongful death action.
4. signature

Question 41

Rule 12 Response

Answer 41

Rule 12 requires a defendant to respond by either a motion or by an answer within 21 days after service of process (or within 60 days if service waived). CA allows 30 days to respond.

Question 42

Motion to strike

Answer 42

• the motion to strike aims at pleadings containing immaterial or redundant issues.
• CA.Anti-SLAAP (Anti-Strategic Lawsuits Against Public Participation) motion to strike targeting suits brought to chill the valid exercise of free speech and petition. The burden is on P to show a probability of winining on the merits.

Question 43

Federal Rule 12(b) defenses (can be raised as both pre-answer motion or answer)

Answer 43

1. Lack of SMJ: can be raised anytime before all appeals are exhausted.
2. Lack of PJ: this must be raised in the first response or is deemed waived.
3. Improper venue: must be raised in the first response.
4. insufficient process: must be raised in the first response.
5. insufficient service of process: must be raised in the first response.
6. Failure to state a claim on which relief can be granted: can be raised anytime until the trial is concluded.
7. Failure to join an indispensable party: can be raised anytime until the trial is concluded.

Question 44

CA general demurrer

Answer 44

1. Pleading failed to state facts sufficient to constitute a cause of action;
2. Court lacks SMJ

Question 45

CA special demurrer

Answer 45

Special demurrer is only allowed in cases classified as unlimited. These issue can be raised on a special demurrer or in the answer.

1. uncertain pleading;
2. Complaint is unclear about which theory or liability are asserted against each D.
3. Lack of legal capacity to sue.
4. Existence of another case between P and D on the same cause of action.
5. Defect or misjoinder of parties;
6. Failure to plead whether a contract is oral or written;
7. Failure to file a required certificate.

Question 46

Motion for a more definite statement

Answer 46

Used in federal courts where the complaint is too vague.

Question 47

CA motion to quash service of summons

Answer 47

Done by means of a special appearance and must be made separately from the answer. This motion must be made either before or concurrently with the filing of the demurrer or motion to strike or the answer.

1. Lack of PJ: D must raise PJ on or before last day of his time to plead or it is waived.
2. Insufficient process
3. Insufficient service of process

Question 48

Answer

Answer 48

D’s response to the complaint.

1. D must respond to the allegations by denying them, admitting them, or stating he lacks sufficient information to do either. Failure to deny can operate as an admission.
2. D must assert any affirmative defenses in the answer.

CA

Question 49

Right to amend

Answer 49

Federal: P has a right to amend once within 21 days of service

CA: P has a right to amend once before the answer or demurrer to the complaint is filed, or after the demurrer is filed but before the hearring on the demurrer.

Question 50

Federal relation back doctrine

Answer 50

Amended claims “relate back” (after the statute of limitation has run) if they concern the same conduct, transaction, or occurrence as the original complaint.

Amended defendants “relate back” if they concern the same conduct, transaction, or occurrence as the original complaint.

Question 51

CA relation back “Doe” Amendments

Answer 51

P must substitute a named D for “Doe” D within 3 years of filing.

P must be genuinely ignorant or the identity, the facts giving rise to the c ause of action against that D, or the fact that the law provides a cause of action.

Question 52

Permissive Joinder

Answer 52

P and/or D may be joined to an existing case if the claims arise from the same transaction or occurrence and raise at least one common question of fact or law. However, there still must be SMJ.

Question 53

Joinder of a necessary party

Answer 53

a party is a necessary party if:

1. the court cannot provide complete relief without the necessary party; or
2. the absent party’s interest will be harmed if he is not joined; or
3. the absent party is **subject to multiple inconsistent obligations.

Question 54

What if a “necessary party” cannot be joined

Answer 54

the court will consider

• if there is an alternative forum available
• assess the likelihood and extent of prejudice to the parties and the absent party
• whether the court can shape relief to avoid the prejudice

The court may either dismiss the case because the party is indispensible or proceed with the case without the necessary party.

Question 55

A necessary party must be joined if:

Answer 55

1. the court has PJ over him;
2. joining him does not destroy diversity, when diversity is the basis of federal SMJ.

Question 56

Impleader

Answer 56

a mechanism defendant can use to add a third party defendant in order to seek indemnity, subrogation, or contribution.

• Supplemental jurisdiction applies because the claim will meet the common nucleus of operative fact requirement and no independent basis for SMJ is required.
• CA calls this a cross complaint, and it is broader since it allows the addition of any claim on which the third-party defendant is liable so long as it pertains to the same transaction or occurrence.
• venue need not be proper for 3d party D.

Question 57

Intervention

Answer 57

A nonparty claims an interest in the property or transaction that is the subject of the pending lawsuit and disposition in his absence will impair his rights.

CA allows intervention if the intervener’s interest is direct and immediate

Question 58

Interpleader

Answer 58

**One holding property (the stakeholder) forces all potential claimants into a single lawsuit to avoid multiple and inconsistent litigation.

• statutory interpleader: requires only that one claimant must be diverse from one other claimant and the AIC must be $500 or more.
• Rule 22 interpleader: requires that the stakeholder must be diverse from every claimant and the AIC must exceed 75k.

Question 59

Compulsory counterclaim

Answer 59

arises from the same transaction or occurrence as P’s claim and must be raised or the claim is deemed waived.

• supplemental jurisdiction will extend to a compulsory counterclaim.

Question 60

Permissive counterclaim

Answer 60

do not arise from the same transaction or occurrence and may be raised in the pending case or in a separate case.

• no supplemental jurisdiction

Question 61

CA cross complaint

Answer 61

encompass all 3d party actions, such as counterclaims, cross claims, impleader, etc.

Question 62

Cross claim

Answer 62

An offensive claim against a co-party and must arise from the same transaction or occurrence. Cross claims are never compulsory.

• supplemental jurisdiction applies to the cross claim.

Question 63

Federal court class actions requirements

Answer 63

1. Numerosity: too many class members for joinder to be practical;
2. Commonality: common questions of law or fact;
3. Typicality: the representative’s claims or defenses are typical of those in the class;
4. Adequacy: the representation will fairly represent the class.

Question 64

Types of class actions

Answer 64

The class action must fit within one of the following types of classes:

1. Prejudice: class treatment is necessary to avoid inconsistent results;
2. Injunctive or declaratory relief is sought; or
3. Question of law/fact common to the class predominate over questions affecting individuals, and a class action is a **superior method to resolve the issues.

Question 65

Diversity issue in federal class actions

Answer 65

The federal court relaxes the jurisdictional requirements for some class actions. Federal court can hear a class action if the following requirements are met:

1. diversity: any class member is diverse from any defendant: and
2. aggregation: the class claims aggregate to exceed $5M.
3. 100 members: there are at least 100 proposed class members.

Question 66

CA class actions

Answer 66

A CA class action is allowed if there is:

1. an ascertainable class: and
2. a well-defined community of interest among class members.

To analyze the interest the state court looks at whether: a) common question of law or fact predominate; b) the representative will adequately represent the class interests; and 3) the class will result in substantial benefit to the parties and the court.

Question 67

Types of CA class actions

Answer 67

there is only one type of class in CA

Question 68

Notice requirements for CA class action

Answer 68

individual notice is not required and publication is an acceptable method of notice.

Question 69

3 types of mandatory disclosures

Answer 69

Federal Rule 26 requires the mandatory disclosure of information about the pending case to the opposing party. Three types of mandatory disclosure:

1. Initial Disclosure
2. Expert Testimony information
3. Pretrial Disclosure

CA does not require mandatory disclosure

Question 70

Deposition

Answer 70

An examination of a witness that occurs under oath and is recorded by sound, video, or stenography.

1. Parties can be deposed
2. Nonparties can be deposed by means of a subpoena.
3. Once only: a person may not be deposed twice without court approval.

FRCP: 10 max
CA: no limits

Question 71

Interrogatories

Answer 71

Questions propounded in writing to another party, which must be answered in writing under oath.
Rogs may not be asked of nonparties.

Limits:

• Federal no more than 25 questions.
• CA: unlimited number of form interrogatories and 35 max specific interrogatories.

Question 72

Scope of Discovery

Answer 72

• Need not be admissible: relevant materials can be discovered even if not admissible so long as the item is reasonably calculated to lead to the discovery of admissible evidence.
• Privileged material is not discoverable (CA requires the responding party to object with particularity)

Question 73

Attorney work product

Answer 73

General Rule: work product is material prepared in anticipation of litigation and is generally not discoverable unless there is substantial need and the inability to obtain the information through other means.

• Absolute privilege applies to mental impressions, opinions, conclusions, and legal theories.

Question 74

Sanction

Answer 74

For violation of discovery, sanctions may be imposed including holding a noncomplying party in contempt, striking pleadings, imposing fees, and ordering default judgment.

Question 75

Request for physical or mental examination of a party

Answer 75

The requesting party must obtain a court order upon a showing that the physical or mental condition of the party is at issue, and there is good cause for an examination.

CA allows the defendant to have one physical exam of the plaintiff as a right when P’s physical condition is at issue. Other physical or mental examination require leave of the court.

Question 76

Dismissal

Answer 76

Voluntary dismissal: P may obtain one voluntary dismissal without prejudice.
Involuntary dismissal: the court may do this at D’s request, or at the court’s own discretion. Involuntary dismissal is often with prejudice.

Question 77

Dismissal for failure to state a claim

Answer 77

occurs when even if the court assumes all allegations are true, P still cannot win based on the face of the complaint.

CA: this is called general demurrer.

Question 78

CA mandatory dismissal

Answer 78

If case is not brought to trial within 5 years of filing the complaint, or 2 years have passed from filing until the service of process.

Question 79

Default judgment

Answer 79

D fails to respond within 21 days after service in federal court, or 30 days after service in CA courts.

Question 80

Motion for summary judgment

Answer 80

MSJ will be granted if the moving party can establish that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.

Standard of review:

• The court views the evidence in the light most favorable to the nonmoving party,
• Evidence must be comprised of firsthand knowledge and credibility is not weighed here.
• A court can grant a partial summary judgment as to one of the several causes of action.

Question 81

Jury trial

Answer 81

Federal court:

• a jury decides the factual legal issues; then the judge determines the equitable claim.
• demand of jury must be made in writing no later than 14 days after service.
• each side has unlimited challege on voir dire for cause, and three preemptory challenges.
• a jury contain 6-12 jurors and a unanimous vote is required.

CA:

• the judge decides the equitable issues first. then the jury decides the legal issues.
• each party is entitled to unlimited challenges for cause, and six preemptory challenges.
• a jury contains 12 jurors and alternates; only a three quarters juror vote is required.

Question 82

Judgment as a matter of law (JMOL)

Answer 82

JMOL occurs when one party files a motion after the other side has been heard at trial (D can usually move twice, P once), contending that reasonable person could not possibly disagree on the result.

In CA state court, JMOL is called a motion for a directed verdict.

Question 83

Renewed Judgment as a matter of law (RJMOL)

Answer 83

RJMOL occurs after the jury has reached a verdict, contending that reasonable person could not disagree on the result. The losing party must have originally filed a JMOL or they cannot later file a RJMOL since it is a renewal of the earlier motion.

• Federal: motion must be made within 28 days after entry of judgment.
• CA: motion must be made within 15 days after mailing or service of notice of entry of judgment, or 180 days after the entry of the judgment.

Question 84

Motion for a new trial

Answer 84

Losing party requests a new trial based on errors made at trial. Same filing deadline as RJMOL.

Grounds for a new trial includes:

• prejudicial error at trial that makes the judgment unfair;
• new evidence that could not have been obtained for the original trial through due diligence;
• prejudicial misconduct of a party/attorney/3d party/juror.
• judgment is against the weight of the evidence
• **excessive damages or inadequate damages

Question 85

Motion to set aside judgment

Answer 85

May be brought within one year of the judgment

Grounds for the motion:
- clerical errors
- neglectful mistakes;
- newly discovered evidence;
- fraud, misrepresentation, or other misconduct of a party;
- judgment is void for lack of due process

Question 86

Remittitur

Answer 86

occurs when a judge orders that a new trial for D will take place unless P agrees to a reduced award of damages because the judge finds the damages awarded by the jury so excessive as to shock the conscience.

Question 87

Additur

Answer 87

occurs when a judge orders that P will get a new trial unless D agrees to an increased award of damages because the judge finds the damages awarded were insufficient.

• Federal: does not permit additur.
• CA: additur is permitted.

Question 88

Final Judgment Rule

Answer 88

Only final judgments may be appealed. A final judgment is an ultimate decision made by the trial court on the merits of an entire case such that there is a final judgment as to all parties and all causes of action.

Question 89

Exceptions to the final judgment rule

Answer 89

1. injunctions and some interlocutory orders;
2. trial court certifies an interlocutory order for appeal;
3. collateral orders, such as those regarding procedural issues;
4. multiple claims or parties involved and some issues are pending, but the issue is resolved as to one claim or party and the judge expressly determines that the order as to that party is final. (CA: express determination is not required)
5. extraordinary writ: if an order is not otherwise appealable and the circumstances are exceptional, the aggrieved party may seek a writ of mandate to compel the lower court to act.
6. class certification

Question 90

Time limits for appeal

Answer 90

Federal: within 30 days after entry of final judgment.

CA: within 0 days after service of notice of entry of judgment; or 180 days after entry of the judgment if no notice is served.

Question 91

Standards of review on appeal

Answer 91

1. de novo: clean slate. Questions of law are reviewed de novo.
2. clear error: questions of fact determined by the trial judge are reviewed using a clear error standard.
3. In the light most favorable to affirming the verdict: questions of facts determined by a jury is required in a light most favorable affirming the jury’s verdict. The appellate court asks if a reasonable jury could have reached the same conclusion.
4. mixed questions of fact and law are reviewed de novo
5. abuse of discretion: matters that are discretionary to the judge are reviewed using an abuse of discretion standard. It will only be overturned if it is clearly wrong.

Question 92

Res judicata (claim preclusion)

Answer 92

Res judicata precludes relitigation of a claim that has already been decided in prior litigation between the same parties.

Question 93

Requirements for res judicata to apply

Answer 93

1. there is valid final judgment on the merits. (Fed: a judgment is final when it is rendered; CA: a judgment is final when the appeals have concluded)
2. The same P and D were parties (or privies, successor in interest to the property or claim) in the prior case and the subsequent case.
3. The same claim (cause of action) is asserted in the prior case and the subsequent case.

Question 94

What are considered as “same claim” in res judicata?

Answer 94

Federal: arise from the same transaction or occurrence of the same claim.

CA: applies the primary rights theory, which allows separate cause of action for individual harms and redress may be sought for one harm in each suit.

Question 95

Collateral estoppel (issue preclusion)

Answer 95

Collateral estoppel precludes relitigation of a particular issue that has already been decided in prior litigation. A subsequent suit based on the same issue will be barred where the first claim meets the following requirements:

1. there is valid final judgment on the merits. (FRCP vs. CA)
2. the same issue was actually litigated.
3. the issue was necessarily determined
4. the issue was essential to the judgment in the first case. (no dicta)
5. collateral estoppel can be used only against someone who was a party (or in privity with a party) in the prior suit iin the interest of fairness. (so they have an opportunity to defend the action);
6. The party asserting collateral estoppel has to be a party in the prior case. (mutuality rule)

Note: CA and other states where the mutuality rule does not apply: “stranger” to the prior case can rely on a prior judgment if doing so is “fair.”

• Defensive use of prior litigation to avoid liability in a subsequent suit will be allowed where the party against whom collateral estoppel is asserted had a fair opportunity to be heard on the critical issue in the prior case.
• Offensive use of prior litigation to establish an issue in a subsequent suit is disfavored and will be allowed only when it is fair and equitable employing a balancing test.