Civ Pro

Question 1

Six Big Topics

Answer 1

1. Right Court- Jurisdiction and Venue
2. Learning about the case - Process, pleadings, and discovery
3. Complex cases - Joinder
4. Adjudication - Pretrial, conferences, trial
5. Appellate review
6. Preclusions - Claim and issue preclusions

Question 2

Personal Jurisdiction

Answer 2

Power over the parties in this particular state

b. Two-step analysis: Must (1) satisfy a state long-arm statute and (2) satisfy due process under the Constitution.
c. Long Arm Statutes – Used to assert a state’s jurisdiction over non-residents. (2 types)
i. General – permit a state court to exercise jurisdiction over any party as long as it is constitutionally permissible. (CA – has a general statute)
ii. Enumerated – Narrow and provides that only certain acts will warrant jurisdiction.

Question 3

In Personam Jurisdiction

Answer 3

Jurisdiction over the person, not property, based on D’s contacts with the forum state

i. Traditional Basis
1. Consent by doing certain things in the state, such as conducting business or committing a tortious act
2. Personally Served with process within the state, or
3. Domiciled within the state.

Question 4

Constitutional Analysis for in personam jurisdiction

Answer 4

“My Parents Frequently Forgot to Read Children’s Stories”

[Minimum contacts, Purposeful availment, Foreseeability; Fair play & substantial justice, Relatedness, Convenience, State’s Interest]

1. Test – Whether the D has “such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice”

Question 5

Constitutional Analysis - In Personam Jurisdiction

1)Contact

Answer 5

a. (1) Contact – There must be a relevant tie between the D and the forum state.
i. Two factors to determine whether there is relevant tie:
ii. (1) The contact must result from Purposeful Availment – “D purposely availed himself to the benefits and protections of the forum state.”

(2) It must be Foreseeable that D could get sued in this forum – “Reasonably likely that D could be haled into court there”
iv. If there is a relevant contact, then assess whether the exercise of jurisdiction would be fair or reasonable under the circumstances.

Question 6

Constitutional Analysis - In Personam Jurisdiction

2)Fairness

Answer 6

b. (2) Fairness – “fair play and substantial justice.”
i. Three factors:
ii. (1) Relatedness between the contact and plaintiff’s claim.
1. Specific Personal Jurisdiction – Where the claim is related to D’s contact with the forum. Here only minimal contacts are required.
a. A D with limited ties with the forum can only be sued there for a claim arising from those activities.
2. General Personal Jurisdiction – Where the claim DOES NOT arise from D’s contact with the forum. Here, D must have continuous and systematic ties with the forum. (e.g., doing business, domicile, incorporation → but ultimately depends on the facts)
a. A D with continuous and systematic ties with the forum may be sued there for a claim that arose anywhere in the world.
iii. (2) Convenience – The forum is OK unless it puts D at a severe disadvantage in the litigation. (very hard standard to meet – relatively impossible to prove)
1. Note: relative wealth of parties does not matter. A very poor D can be made to travel.
iv. (3) States Interest – In providing the forum to its citizens ALWAYS INCLUDE THIS FACTOR IN ANALYSIS

Question 7

SMJ

Answer 7

Power over the case

a. The federal court can only hear certain types of cases. Two main types: Diversity of Citizenship and Federal Question.
b. Diversity of Citizenship – Requirements: (1) the action must be between “citizens of different states” (or between a citizen of a state and a foreign citizen) and (2) the amount in controversy must exceed $75,000.

Question 8

Complete Diversity

Answer 8

1. Complete Diversity – Rule: There is no diversity if any P is a citizen of the same state as any D. (No P, no D, same state)

a. Determining citizenship:
i. Natural Person – Citizenship is the state of her domicile
1. Domicile – (1) Physical presence in the state (

(2) with subjective intent to remain.
a. Domicile is determined at the time of filing
b. A person can have only ONE domicile

ii. Corporations – Can have up to 2 citizenships, based on
1. State of incorporation AND
2. Principle place of business (ONLY 1)
a. If question does not specify PPB, apply nerve center test:
i. Nerve center – PPB will be where decisions are made, which is usually the headquarters.
b. Total Activities – where corporations does more stuff than anywhere else

Question 9

Citizenship for Diversity purpose

Answer 9

b. Resident Aliens – Based on aliens current state of domicile
c. Unincorporated Associations – (Partnership, LLC) use citizenship of EVERY member (including general and limited partners)
d. Legal Representative of Decedents, Minors, Incompetents – Look to their citizenship, NOT the citizenship of the representative.

Question 10

Amount in Controversy Must Exceed $75000

Answer 10

Aggregation

a. Adding two or more claims to meet the required amount
b. Can only aggregate when there is 1 P v. 1 D, and can aggregate ANY claim whether or not it is related
c. For Joint Tortfeasors – Use the total value of the claim. The number of parties is irrelevant.
3. Injunctions/Equitable Relief – Jurisdictional amount is satisfied if either (1) the gain to P or (2) the cost to D exceeds $75,000.

iii. EXCLUSIONS – Federal courts will NOT hear cases involving divorce, alimony, child custody, or probate, even if diversity is met.

Question 11

Federal Q

Answer 11

The P must be attempting to enforce a federal right that “arises under” a federal law (e.g., federal constitution, legislation) OR P’s right to relief must require a resolution of a substantial question of federal law.

i. Well pleaded complaint rule – The federal issue itself must be raised in the complaint/the claim itself must “arise under” federal law
ii. If P is enforcing a federal right, then the case can go to fed court under FQ jurisdiction

Question 12

Supplemental Jurisdiction

Answer 12

i. IMPORTANT BAR TIP: Diversity and FQ can get a case into federal court but once it is there, there may be additional claims in that case. For every single claim (cross-claim, counterclaim, etc.), test whether it invokes diversity or FQ. If it does, it can come into the case. If it does not, turn to Supplemental J, as it may permit an additional claim that does not meet the original jurisdiction requirements.
1. Supplemental Jurisdiction is only available AFTER a case is already in federal court through diversity or FQ. Supplemental allows an additional claim into federal court.
a. Common Nucleus Test - The claim must share a common nucleus of operative fact with the claim that invoked fed subject matter jurisdiction. In other words, claims that arise out of the same transaction or occurrence as the underlying claim.

Question 13

Supplemental Jurisdiction

Answer 13

iii. Limitation – In diversity cases, the P may not use supplemental jurisdiction to overcome a lack of diversity citizenship.
1. P CAN use supplemental jurisdiction to overcome a lack of amount in controversy for a claim in a diversity case.
2. Supplemental does not apply to Δ or FQ; only applies to diversity of citizenship and/or Π

Question 14

Supplemental Jurisdiction

Answer 14

iv. Discretion – Even if the court has supplemental jurisdiction, the Court has discretion NOT to hear the supplemental claim if:
1. The federal question is dismissed early in the proceedings (Most important)
2. The state law claim is complex
3. State law issues would predominate

Question 15

Removal

Answer 15

REMOVAL – Allows DEFENDANTS to remove a case filed in state court to federal court.

i. RULES
1. Only D’s can remove case filed in state court to federal court (Multiple D’s must ALL agree to remove)
a. P can NEVER remove
2. Can only remove from state trial court to federal trial court. (it is called remand when federal remove to state court)
3. Test: D can remove if the case could be heard in federal court, i.e., if there is federal SMJ because case invokes diversity or FQ
a. Special rule: In Diversity cases only, NO removal if D is a citizen of the forum
4. A D who files a permissive counterclaim in state court waives his right to remove. (NOT for compulsory claims)
5. Which court? Case can only be removed to the federal district court embracing the state court in which the case was originally filed
a. Ex: remove from San Diego to the Southern District of CA
6. When? D has 30 days from service of the first removable document to remove the case (usually this means 30 days after service of process).
7. If P dismisses the claim against D2, the case then becomes removable because there is no defendant who is a citizen of the forum. But, in a diversity case, there is no removal more than one year after the case was filed in state court.

Question 16

Removal Procedure

Answer 16

1. D files Notice of removal in federal court, which includes:
   a. Statement re: Grounds for removal,
   b. Signed by the parties under Rule 11,
   c. Attach all documents served on D in state action,
   d. Copy to ALL adverse parties.
2. Then file copy of notice in State Court.

Question 17

Remand

Answer 17

iii. Remand – If removal is improper, federal court can remand to state court.
1. If removal was improper, P must move to remand within 30 days of removal, but if there is no SMJ then the P can remand anytime.
a. There is no time limit on raising lack of SMJ
2. When a removable claim is joined with one or more nonremovable claims, the entire case may be removed. The federal court in its discretion, may remand all matters in which state law predominates.

Question 18

ERIE DOCTRINE

Answer 18

ii. State Substantive Law [Black Letter Law] – In a diversity case, federal court MUST apply state substantive law and Federal procedural law.
iii. Step 1 – Is there a Federal Law on point that directly conflicts with the State Law. If so, APPLY the Federal Law as long as it is valid.
1. This includes, FRCP, FRE, Federal Statutes, US Constitution.
2. Note – FRCP is valid if it is arguably procedural (Has never been held invalid)
iv. Step 2 – If there is NO federal law on point, determine whether this law applies to one of the easy ones: (1) Elements of a claim or defense, (2) statute of limitations (3) rules for tolling statute of limitations, (4) choice of law rules. These are substantive areas of law according to the Supreme Court.
v. Step 3 – If there is no federal law on point, it’s not one of the easy ones (i.e., not an established issue of substantive law), but the federal judge wants to ignore the state law, apply the following 3 tests and come to a reasonable conclusion.
1. Outcome Determinative – Would applying or ignoring the state rule affect the outcome of the case? If so, apply the state law.
2. Balance of Interests – Does either the federal or state system have strong interest in having its rule applied?
3. Avoid Forum Shopping – If the federal court ignores the state rule on this issue, will it cause parties to flock to federal court? If so, apply state law.

Question 19

CA - SMJ

Answer 19

Proper classification within the Superior Court

i. Standard – Superior Courts have general subject matter jurisdiction, meaning they can hear ANY civil case. Must decide what classification of case is at issue.
1. Exception – Superior Court cannot hear cases that invoke exclusive federal question jurisdiction
a. i.e. Bankruptcy, federal securities, antitrust, and patent infringement.

Question 20

Venue

Answer 20

3. VENUE – Determines which district court is proper (CA – determines which county is proper)

a. Local Action [Always start by asking if it’s a local action] – Actions regarding ownership, possession, or injury to LAND MUST be filed in the district where the land lies.
i. CA – must be filed in county where the land lies

b. Transitory Action – If it is not a local action, then it is transitory.
i. Plaintiff may lay venue in any district: [Always discuss both]
1. Where ANY D resides if ALL D’s reside in the same state, OR
2. Where a substantial part of events or claim arose

Question 21

Venue- Residential req

Answer 21

a. Resides
i. In cases where all D’s reside in different districts of the same state, plaintiff can lay venue in the district in which any of them reside.
ii. Humans – Reside where they are domiciled.
iii. Corporations – Reside in EVERY district where they were subject to personal jurisdiction when the case was filed.
1. i.e. Ford resides in every U.S. district
iv. Aliens – may be sued in any district (But you still need PJ)
v. Unincorporated Associations – Determined by looking to the residence of the association itself, not its individual members

Question 22

CA Venue for Transitory Action

Answer 22

ii. CA – Transitory Action
1. Plaintiff may lay venue in a county where ANY D resides when the case is filed
2. Additional rules re: venue in particular cases:

a. Contracts– Venue is proper in the county where the contract was entered or was to be performed
b. Personal Injury / Wrongful Death – Venue is proper in the county where the injury occurred
c. Corporation or other business association – Venue is proper in the county where (1) it has its principal place of business, OR (2) where it entered or is to perform a contract, OR (3) where the breach occurred or liability arises.
d. When D is Non Resident of CA – ANY County in CA.

Question 23

Transfer of Venue

Answer 23

In the interest of justice, the court MAY transfer to any district in which the case could have been filed.

i. This includes a district with proper venue that has personal jurisdiction over the defendant
ii. If venue in the original district is proper, may transfer to another federal district, based upon convenience for the parties and witnesses and the “interests of justice.” Court has discretion to order transfer based upon (1) public factors and (2) private factors.
1. Public – what law should apply, what community should be burdened with jury service, protecting citizens
2. Private – Convenience, e.g., location of parties and witnesses, or evidence

Question 24

CA Transfer of Venue

Answer 24

May transfer between Superior Courts in CA.

1. If Original Venue is Improper – D can make a motion to transfer to a proper County with or before her answer, demurrer, or motion to strike.
2. If Original Venue is Proper – The court may, on motion, transfer if:
   a. (1) There is reason to believe that an impartial trial cannot be had in the original venue,
   b. (2) Convenience of witnesses and ends of justice would be promoted, AND
   c. (3) No judge is qualified to act.
   i. Parties must agree on a County or court will choose.

Question 25

Forum Non Conveniens

Answer 25

d. Forum Non Conveniens – If there is a far more appropriate court elsewhere within a separate judicial system (foreign country), a court may dismiss or stay the action to let P sue D there.
i. Requires a very strong showing of private and public interests to dismiss or stay.
ii. Does not matter that P may recover less in the other court.
iii. Almost never granted if P is a resident of the present forum.
iv. CA – Inconvenient Forum – State court may dismiss or stay on motion (by party or by the court itself). It must find that “in the interest of substantial justice an action should be heard in a forum outside CA.”
1. If court grants motion, it may do so on the condition that D waive PJ and SOL in the other forum.

Question 26

Service of Process

Answer 26

a. Notice – Must give notice to D by delivering (1) a summons and (2) a copy of the complaint. Together these two documents are called “Process”
i. Summons – formal court notice of suit and time for response
ii. Copy of the complaint
b. Service – ANY non party over the age of 18, can serve process
i. Note – Process server does not have to be appointed by the court.
ii. Service must occur within 120 days of filing case or case dismissed without prejudice (not dismissed if P shows good cause for delay in serving)

Question 27

Service of Process

Answer 27

c. How is Process Served? Five Possible Ways
i. (1) Personal Service – given to D personally ANYWHERE in the forum state
1. Ex. Ballpark, tennis court
2. CA – In CA you can only use substituted service if personal service “cannot with reasonable diligence” be had. Thus, must try personal service first and only if not possible, then can you use substituted service.
ii. (2) Substituted Service – Delivery to:
1. Defendant’s usual place of abode, AND
2. Left with Competent Person who resides there
a. Competent = of suitable age and discretion
b. CA Requirements [Very different from Fed] – (1) Must be made at D’s usual abode or mailing address, (2) left with competent member of the household who is at least 18, (3) person must be informed of contents, and (4) must also mail process to the D first class, postage prepaid. (Service is deemed effective 10 days after mailing)

Question 28

Complaint - Principal pleading by the P. Filing commences an action.

Answer 28

i. Fed Requirements (Three)
1. Short and plain statement of the claim, showing entitlement to relief
2. Demand for Relief Sought
3. Statement of the grounds establishing subject matter jurisdiction

Question 29

CA Complaint

Answer 29

a. CA Requirements (Two)
i. (1) Statement of facts constituting the cause of action, stated in ordinary, concise language
ii. (2) Demand for judgment for the relief to which the pleader claims to be entitled.
iii. Note: Statement of SMJ is NOT required in CA.

Question 30

Pleadings

Answer 30

1. Notice Pleading – Must plead sufficient facts to support a plausible claim. (Not just a possible claim). Only need enough detail to put the other side on notice.
   a. CA – Fact Pleading – P must allege the ultimate facts on each element of each cause of action. (Higher standard than Federal)

Question 31

D’s Response

Answer 31

c. Defendant’s RESPONSE – Rule 12 requires D to respond either (1) by motion, or (2) by answer. To avoid default, these must be done within 21 days after service of process.
i. CA – Must respond within 30 days.
ii. Rule 12 Motions – Not pleadings but rather a request for a court order.
1. Issues of Form
a. 12(c) – Motion for judgment on the pleadings
b. 12(e) – Motion for a more definite statement (i.e. pleading is so vague that D cant form a response)
c. 12(f) – Motion to strike (i.e. strike immaterial things in pleadings, e.g. demand for jury when no right exists)
i. Any party can bring a motion to strike

Question 32

2. Rule 12(b) Defenses

Answer 32

a. 12(b)(1) – Lack of subject matter jurisdiction
b. 12(b)(2) – Lack of personal jurisdiction
c. 12(b)(3) – Improper venue
d. 12(b)(4) – Insufficiency of process (problem with papers)
e. 12(b)(5) – Insufficient service of process
f. 12(b)(6) – Failure to state a claim upon which relief can be granted. (i.e. Even if everything you allege in your complaint is true, no legal liability attaches to the D)
g. 12(b)(7) – Failure to join an indispensible party
i. May be raised by motion or in the answer.
h. 12(b) 2,3,4,5 are waivable – Waivable defenses must be put in the first Rule 12 (either motion or answer) or else they are waived
i. Lack of SMJ is never waived, and can be raised for the first time after trial or on appeal.

Question 33

General Demurrer

Answer 33

3. General Demurrer – acts like a motion but is treated like a pleading. [Remember: DEMURRER’S DO NOT EXIST IN FEDERAL] [NOTE: Demurrer’s are either “sustained” or “overruled,” are NOT “granted” or “denied”]

a. Can be used to assert 2 defenses:
i. (1) The D failed to state facts sufficient to constitute a cause of action [Similar to Fed Motion to Dismiss for Failure to State a Claim]
ii. (2) Lacks Subject Matter Jurisdiction [almost never raised in CA]

b. Note – Demurrer can be raised in the answer as affirmative defenses or can be asserted in a motion for judgment of the pleadings.

Question 34

Permissive Joinder (CA)

Answer 34

When party can be joined as P or D if (1) same series of T/O; AND (2) common question of fact or law among all parties

Question 35

Compulsory Joinder (CA: Same)

Answer 35

Requires that necessary parties should be joined if possible- a party whose absence prevents court from rendering an effective judgment or would cause serious prejudice to other party. Absent parties should be joined if possible. If joinder is not feasible (would destroy diversity), the Ct must either proceed w/o the absentee or dismiss the case.
Necessary ¬- An absentee is necessary and indispensible and must be joined if: 1) complete relief cannot be given to existing parties in his absence, 2) disposition in his absence impair his ability to protect his interest in the controversy, OR 3) his absence would expose existing parties to a substantial risk to multiple obligations.
Nb. A joint tortfeasor subject to joint & several liability is not a person necessary for adjudication.
Feasible – If the absent party is necessary, then he should be joined if joinder is feasible. Joinder is feasible if the ct has pjx over him, he is amenable to process, and his joinder will not destroy diversity.
Dismiss - If the absent party CANNOT be joined b/c it is not feasible, the court will consider the following factors to determine if the case should be dismissed or if it is able to proceed in the party’s absence: 1) Whether the judgment in the party’s absence would prejudice the existing parties; 2) Whether the prejudice can be reduced in shaping the judgment; 3) Whether a judgment in the party’s absence would be adequate; and 4) Whether the P will be deprived of an adequate remedy if the action is dismissed.

Question 36

Impleader (CA)

Answer 36

A claim involving a TPD for indemnity or contribution and must do so w/in 14 days after serving answer (Assess SMJ).
CA Cross-Complaint: same, but broader. Indemnity, contribution + any claim that TPD liable if same T/O. Never compulsory.

Question 37

Intervention

Answer 37

When absentee wants to join pending suit as π or D; application to intervene must be “timely”; court may realign her if it thinks she can in on the wrong side. Intervention as a matter of right is allowed when 1) She interest may be harmed if not joined AND 2) Her interest is not adequately represented now. Permissive intervention allows Ct to decide joinder if a claim or defense and the pending case have at least 1 common ques (Ct discretion unless delay/prejudice)

Question 38

Interpleader

Answer 38

When person holding property forces all potential claimants into a single lawsuit to avoid multiple litigation & inconsistency.
Rule 22 interpleader requires that (1) stakeholder is diverse from every claimant; (2) amount in controversy exceeds $75K; (3) proper service of process; and (4) proper venue (like regular lawsuit)
Statutory interpleader requires that (1) at least one claimant is diverse from other claimant, regardless of stakeholder’s citizenship; (2) amount in controversy is $500 or more; (3) nationwide service; and (4) venue is in any district where claimant resides.

Question 39

Class Action

Answer 39

When Representative sues on behalf of a class of members. Req’s: 1) Numerosity: too numerous for joinder; 2) Commonality: questions of law or fact are common to class; 3) Typicality: rep’s claims/defenses typical of those of the class; AND 4) Adequate and fair Representative: the class rep will fairly & adequately represent the class. 
3 types:
1) Prejudice (avoid prejudice to a class)
2) Injunctive/Declaratory (trying to get injunction); OR 
3) Damages (trying to get damages, mass tort) require (i) Common questions predominate over individual questions & (ii) Class action is the superior method to handle the dispute. Type 3 requires notice to class members, including individual notice (by mail) to all reasonably identifiable members; notice includes stmt that they can opt out & paid by class rep.
Class certification: Court must determine at early practicable time whether to certify case to proceed as class action; if court certifies class, it must define class, class claims, issues, or defenses; AND appoint class counsel (must fairly & adequately represent class’s interests) 
Dismissal/settlement: Parties can dismiss/settle certified class action only w/ ct approval. Ct gives notice to class members to get feedback on whether case should be settled or dismissed; members of damages class action has 2nd chance to opt out .
Nb: Ct will consider only class rep’s citizenship, not other class members; AND rep’s claim must exceed $75K

Question 40

CA Class Action

Answer 40

Only one type of class. Req’s: Showing of 1) ascertainable class; AND  2) Well defined community of interest (considering whether common questions predominate; representative is adequate; and class will result in substantial benefit to parties & court. Individual notice NOT required; notice can be by publication). 
Court-appointed class counsel not required. Settlement or dismissal must be approved by Ct. Amt in controversy can be aggregate from claims of all class members – e.g. claims of 76,000 people can be harmed for $1.

Question 41

Pleadings

Answer 41

Rule: Notice pleading (“put someone on notice”); CA – Fact pleading; pleader must state the “ultimate facts”
Rule 11: Req’s attorney to sign all pleadings, motions and papers certifying 1) paper not for improper purpose, 2) legal contentions are warranted by law, 3) factual contentions and denials have evidentiary support (CA – Same)
Continuous certification effective every time presented

Purpose: To deter, not punish (CA – Same) Does not apply to Discovery (CA – Same)
Motions for violations are served but not filed with Ct for at least 21 days because of SAFE HARBOR to withdraw or fix problem.

(CA: No safe harbor if bad faith or frivolous tactics (w/o merit or for sole purpose of harassing); punitive damages assessed by Ct if action by convicted felon and P guilty of fraud, oppression, malice. May be brought by party or raised by the Ct)

Question 42

Complaint

Answer 42

The filing that commences an action, which requires: (i) statement of SMJ ; (ii) short & plain statement of claim, showing entitled to relief; and (iii) demand for relief sought.
Statement of SMJ must provide basis for federal j/d (diversity or FQ).
Statement of claim: Federal court requires notice pleading, meaning that pleading only need enough detail to put opposing party on notice of claim. Only circumstances of fraud; mistake; or special damages (damages that do not flow from event) MUST be pleaded with particularity or specificity.
Demand for relief must provide that π is entitled to relief & types of relief sought; only special damages must be pleaded with particularity or specificity.

Question 43

CA Complaint

Answer 43

CA uses fact pleading, which requires π to allege ultimate facts on each element of c/a
Statement of facts constituting c/a stated in ordinary & concise language; and Circumstances of fraud; civil conspiracy; tortious breach of K; unfair business practices; products liability among multiple Ds resulting from exposure to toxins must be plead with particularity.
Demand for judgment for relief to which π claims to be entitled. If P seeks damages, then generally must state amount, unless PI, wrongful death. If P seeks punitive damages, then π CANNOT state amount. D can request for statement of damages, which P must provide w/in 15 days. P must serve statement of damages on D b/f taking default even if D did not request it.
Fictitious Ds: If π is genuinely unaware of ∆’s identity, she may name D as “doe” D; must also allege that she is unaware of ∆’s true identity and must state c/a against “doe” D (charging allegation). Fictitious Ds may be raised with S/L issues.
Verified pleadings are signed under penalty of perjury by party; rare but required in SH derivative suits & suits against gov’t entities; verified pleadings can be treated as affidavits (MSJ)

Question 44

Response

Answer 44

Responses by motion or by answer w/in 21 days after service of process and must respond to allegations or raise affirmative defenses. (Rule 12 motions)
Form Issues: motion for more definite statement (pleading so vague so cannot frame a response), motion to strike (immaterial things)
Defenses: lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, insufficiency of process, insufficiency of service of process, failure to state a claim, failure to join indispensable party
Waivable motions must be put in the first Rule 12 response or are waived: lack of personal jurisdiction, improper venue, insufficiency of process, insufficiency of service of process.

Question 45

CA Response

Answer 45

CA: 30 days after SOP complete (no extra time if waived by mail)
Defensive Responses: general demurrer (P failed to state facts sufficient to cause state of action; OK to use to challenge SMJ); special demurrer (complaint uncertain, ambiguous, unintelligible; not available in limited civil cases); motion to quash service of summons (to challenge PJ by special appearance; to challenge service of process; must be made before/with filing of demurrer/motion to strike; denial = moving party can only seek appellate review by writ of mandate from court of appeal w/in 10 days); motion to strike (improper, irrelevant; false matter)

Question 46

Answer

Answer 46

Under FRCP, answer must contain specific denials or admissions of each averment, or general denial w/ specific admissions. Affirmative defenses: Answer must also contain affirmative defenses (S/L, S/F, RJ, self-defense, etc.); defenses may be waived if D failed to plead them in answer. D must file answer w/in 21 days after service; OR 60 days after request for waiver was mailed if service by mail & D waives formal service. If D made Rule 12 motion & it is denied, then D must file answer w/in 14 days to answer after denial

Question 47

CA Answer

Answer 47

CA: Answer can be general denial, unless responding to verified complaint, 30 days to answer from service of process; OR 10 days from date of notice that court overrules demurrer.

Question 48

General Demurrer (CA only)

Answer 48

Can be used to assert some defenses—failure to state facts sufficient to constitute c/a & lack of SMJ; demurrer maybe aimed at entire complaint or individual c/a. Court treats allegations as true and limits assessment to complaint & matters of judicial notice.

Question 49

Special Demurrer (CA only)

Answer 49

Can be used to assert most defenses (not available in limited civil cases):

1) Complaint is uncertain, ambiguous or unintelligible;
2) Complaint is unclear about theory of liability;
3) Lack of legal capacity;
4) Existence of another case b/w same parties on same c/a;
5) Defect or misjoinder of parties;
6) Failure to plead whether K is oral or written;
7) Failure to file certificate (to sue architects, engineers, or land surveyors for professional negligence) – can also be raised in motion to strike

Question 50

Motion to quash service of summons

CA only

Answer 50

Most states allow special appearance where D can object to the court’s exercise of jx w/out consenting to jx. Can also be used to assert lack of PJ; improper process & improper service of process; motion must be made BEFORE or WITH demurrer, answer, or motion to strike, or else D waives these defenses
If court denies motion to quash, moving party can only seek appellate review by writ of mandate from Court of Appeals w/in 10 days of service of written notice of entry of order denying motion.

Question 51

Motion to Strike

Answer 51

Used to strike all or part of complaint; court may strike irrelevant, false, or improper matter. Motion to strike does not extend time to which to answer or demur.
CA Anti-SLAPP motion to strike: CA has 2nd motion to strike when π has filed “strategic lawsuit against public participation” (SLAPP). D must make threshold showing that c/a in complain arose from protected activity such as right of free speech; if such showing is made, burden shifts to π to show probability of prevailing on merits. D who prevails on anti-SLAPP motion may bring SLAPP-back motion (c/a for malicious prosecution).

Question 52

Counterclaims

CA:Cross complaints

Answer 52

Counterclaims are offensive claims against an opposing party.
Compulsory if arises from the same transactions or occurrences; filed in Ds answer or waived. (Supp jx for amount)
Permissive if does not arise from the same transactions or occurrences.
Note: Assess if counterclaim (compulsory or permissive) invokes federal SMJ (diversity or federal question); if counterclaim fails to invoke either of those, assess supplemental jx.

Question 53

Cross Claims

Answer 53

Are offensive claims against a co-party and must arise from same transactions or occurrences but are never compulsory.
CA: Cross-complaints against P (same as fed); against co-party (same as fed).

Question 54

Amended Pleadings

Answer 54

Right to Amend: P has a right to amend once before D serves his answer. D has a right to amend once w/in 21 days of serving his answer. If no right = leave of court required and court will grant “if justice so requires” (granted unless delay/prejudice).
CA:  P has a right to amend as a matter of course. P may amend before D files answer/demurrer OR after demurrer/before trial is OK as a matter of course.  Any party can seek leave to amend anytime (court discretion).
Relation Back (SOL): Amendments relate back to the date of the original filing if they concern the same conduct, T/O as the original pleading. However, amended pleadings changing a D after a statute runs relates back if same T/O as original, if brought within the relevant time (time allowed for service of process is 120 days after filing complaint), new D knew of the action w/in 120 days of filing, and new D knew or should have known that but for the mistake concerning the proper paryt’s identity, the action would have been originally brought against her.
CA:  Relation back permissible if (1) original complaint filed before S/L ran & contained charging allegations against doe Ds; (2) P genuinely ignorant of identity of doe Ds; and (3) P pleaded that ignorance in original complaint. If P substitutes true D w/in 3 years after filing, it relates back & gets around S/L.

Question 55

Req Disclosures

Answer 55

Required Disclosures (FRCP 26) (CA – no such thing)
Initial (w/in 14 days of 26f conference): identify persons/docs; computation of damages claimed; copies of insurance agreements)
Experts: those to be used at trial and produce reports, data used, qualifications
Pre-Trial: No later than 30 days before trial, must give detailed information about evidence

Question 56

Depositions

Answer 56

When deponent (parties OR nonparties) gives sworn oral answers to questions by counsel; no more than 10 depositions, 7 hrs each, unless court orders or parties agree. Nonparties must be subpoenaed or she is not compelled to attend (subpoena could be duces tecum, which requires deponent material w/ her). Cannot be compelled to travel more than 100 miles, unless she agrees. Parties need not be subpoenaed; notice of deposition, properly served, is sufficient to compel attendance. CA: No presumptive time limit or # of depositions.

Question 57

Interrogatories

Answer 57

Qs propounded in writing to another party (never non-party) and answered in writing under oath (w/in 30 days)
CA: Form interrogatories (no limit); specific interrogatories (may not contain subparts); max number in unlimited (35 but can request more).

Question 58

Request to Produce

Answer 58

Request to party/non-party (w/in 30 days); available for review and copy docs or things; permit entry on designated property for inspection.
CA: Cannot be used against non-party, but possible by taking non-party’s depo and serve subpoena duces tecum = requires deponent to bring material with her.

Question 59

Req for Admissions

Answer 59

Request by one party to another to admit/deny any discoverable matters.
CA: Same; maximum number in unlimited cases = 35; no limit to admit genuineness of docs; limited cases only 1 depo per party or combined total of 35; case questionnaire in limited case; no medical exams in limited cases.

Question 60

Scope Discovery

Answer 60

Relevance: anything relevant to a claim or defense. Something is relevant if it is reasonably calculated to lead to admissible evidence. CA – All info relevant to the subject matter involved.
Privileged Matters: not discoverable (CA – must keep privileged docs in a PRIVILEGE LOG)
Work Product: Generally protected from discovery if it is prepared in the anticipation of litigation, unless show 1) substantial need, 2) not otherwise available (CA: only if denial = unfairly prejudice/injustice), but absolutely protected if conclusions, opinions, legal theories. CA – more restrictive: only applies to attorney’s work product, not his representatives.
Experts: production of info required about experts used at trial (depo available)
CA: any party may request simultaneous exchange of witness info which includes: exchange of expert list; declaration of nature and substance of testimony; expert qualifications (note: no disclosure for consulting experts)
Privacy Limit: Discovery may be limited where it interferes w/ right to privacy. Ct balances need for discovery v need for privacy

Question 61

Enforcement

Answer 61

Protective Order: Responding party may seek protective order if request is overly burdensome; involves trade secrets; information not reasonably accessible; or request seeks work product.
Violations: Partial violations = receiving party answers some and objects to others and objections not upheld; total violations = receiving party fails completely to attend depos/respond
Note: Before sanctions, party must certify good faith to obtain info without court involvement
Sanctions: Partial = order compelling party to answer + cost of bringing motion; if violated order = heavy sanctions + cost + possibly contempt; failure to make required disclosure = other party can elect to treat as partial/total + party in violation cannot use info at trial unless justified/harmless; total = heavy sanctions + costs (no contempt)
Heavy sanctions: order establishing facts as true; strike pleading regarding pertinent issues; disallow evidence of party regarding pertinent issues; dismiss Ps case (bad faith shown); OR default judgment (bad faith shown)
CA Rules:
Meet and confer (required unless total failure to respond) and if failure = monetary sanction;
Misuse of discovery (notice given to person sanctioned) occurs when not playing by rules, unjustified objections, abusive motions, failure to confer, refusal to respond;
Sanctions (party must indicate type it seeks) = 1) monetary; 2) establishment order; 3) refusal to allow party to support position with evidence; 4) striking pleadings; 5) default/dismiss the case

Question 62

Dismissal

Answer 62

Voluntary Dismissal: P may do so before D serves answer or summary judgment. Only ONCE without prejudice, no matter if different courts (CA – P can do this anytime before trial at court’s discretion)
Involuntary Dismissal (CA – Same) Discretionary: Ct discretion to dismiss if not brought w/in 2 years of filing. Mandatory: Dismissal required if case hasn’t went to trial w/in 5 years of filing
Default Judgment: If D fails to respond to service (21 days; 30 for CA), need judgment to enforce and recover the money
Clerk can enter judgment if: 1) D made no response at all, 2) claim is for sum certain 3) claimant gives affidavit of money owed AND 4) D is not a minor or incompetent (must go to court if any of these violated.
Failure to state a claim: Taking P’s pleading as true, would she win a judgment. Only look at the complaint itself. (CA – Called “Failure to Plead Facts constituting a Cause of Action”)

Question 63

Right to Jury

Answer 63

Summary Judgment must be granted if, from the pleading, there is 1) no genuine dispute as to a material fact AND 2) the moving paryt is entitled to judgment as a matter of law. The judgment may be partial as well as complete.
CA: Same standard as Fed.
Burden Shifting: Burden shifts to opposing party to demonstrate triable issues of fact exists; Moving party must file & serve separate statement of material facts she claims is undisputed with supporting evidence for each fact. Opposing party responds indicating facts she believes in dispute + supporting evidence for each fact.

Question 64

Trial, Judgement, & Post-trial

Answer 64

Motion for Judgment as a Matter of Law (CA - Motion for a Directed Verdict)
Asks the court to take the case away from the jury and direct a verdict to the person requesting.
Viewing the evidence in light of the non-moving party, reasonable people could not disagree on the result (CA – Same standard)
D [asks for it 2x] – at close of P’s evidence, and at close of all evidence
P [asks for it 1x] – at close of all the evidence. CA: If D moves at close of P’s opening statement/evidence = motion for non-suit
Renewed Motion For Judgment as a Matter of Law (CA – Judgment not Withstanding the Verdict)
Occurs where the jury reached a conclusion reasonable people could not have reached; a JMOL must have been done at an appropriate time during trial (then must file RJMOL w/in 28 days of entry, losing party asks court to set aside verdict and enter in its favor)
To bring motion, party must have moved for JMOL at close of evidence as prerequisite. CA: Party NOT req’d to make motion for directed verdict before moving for a JNOV.
Motion for a New Trial: prejudicial error, new evidence that could not have been obtained w/ due diligence for the original trial, prejudicial misconduct of party or attorney, judgment is against the weight of the evidence; must be done w/in 28 days after judgment. CA: same except that error resulted in miscarriage of justice.

Question 65

Appeals

Answer 65

Appeals: Appeal from federal district court to US Court of Appeals must be made w/in 30days from entry of judgment; CA – From Superior Court to CA COA, must be made w/in 60days after mailing or service of notice of entry of judgment, or 180 days after entry if no notice was mailed or served (limited case/small claims = appellate division of superior court).
Final Judgment Rule: appeals can only be made from final judgments w/in 30 days after entry of final judgment; the court must have nothing left to do on the merits of the case (ultimate decision by TC of merits of entire case)CA: same; judgment as to one of several parties = final judgment and can be appealed
Interlocutory Review: may be appealable even though not final judgments; must seek review w/in 10 days of order
Extraordinary Writ: CA: If order not otherwise appealable, aggrieved party may seek: 1) writ of mandate (to compel lower court); or 2) prohibition (to stop lower court).
Writ may issue by any court to inferior court; party seeking writ must demonstrate 1) Irreparable harm; 2) Normal route of appeal inadequate; AND 3) Beneficial outcome of writ proceeding

Question 66

Motion to Set Aside Judgment

Answer 66

For: Clerical error may be made at anytime; Mistake/excusable neglect may be made w/in reasonable time (w/in 1 year, CA 60 mo after entry); New evidence that could not have been discovered w/ due diligence for new trial motion may be made w/in reasonable time (w/in 1 year);or Judgment is void may be made w/in reasonable time (w/in 1 year) .

Question 67

Res Judicata (Claim Preclusion)

Answer 67

The doctrine of res judicata holds that once a final judgment on the merits has been rendered on a particular cause of action, the P is barred by res judicata from trying the same cause of action in a later lawsuit. However, res judicata only applies when parties to the earlier suit were identical.
Req’s: (VOSS Water):
1) Valid final judgment: A judgment is valid so long as it is not void for lack of SMJ. A judgment is final if it is one that disposes of the whole case on its merits, by rendering a final judgment not only as to all parties but as to all causes of actions involved
2) On the merits: A judgment is generally on the merits so long as it was not an involuntary dismissal for lack of jx, imporper venue, or failure to join indispensible parties.
3) Same claim: Res judicata only applies if the causes of action in the first suit are the same as those being brought in the second suit. A cause of action is all claims arising out of the same T/O. (CA minority view - “Primary Rights Doctrine” allows a P to split a property damage and a personal injury cause of action w/o the risk of res judicata.)
4) Same parties: Res judicata only applies if the parties from the first suit and the second suit are the same and that they are in the same configuration; and
5) Was Actually Litigated/ Could Have Been Litigated: In the first lawsuit, the Ct held a hearing and assuming that hearing allowed testimony and evidence to be presented, he first case was actually litigated.

Question 68

Collateral Estoppel (Issue Preclusion)

Answer 68

The Doctrine of Collateral Estoppel bars litigation of issues decided in an earlier lawsuit.
A judgment for a P or D is conclusive in a subsequent action on a different cause of action between them or their privies, as to issues actually litigated and essential to the judgment in the first action. However, under the traditional “mutuality” rules, a judgment could not be used against a person who was not a party, b/c such use was held to violate due process rights.
In jxs (including CA) where the mutuality requirement has been eroded, the following factors are considered in determining whether a nonparty may rely on a prior judgment: 1) The issue decided in Case 1 must be identical to the issue presented in the subsequent case. 2) There must have been a final judgment on the merits. 3) The party against who the judgment is to be used must have had full & fair opportunity to litigate. (CA has added an inquiry related to (iii)): Was the party against whom collateral estoppel is being asserted a party or in privity w/ a party to the prior proceeding. 4) The posture of the case, essential to the judgment, must not be such that it would be unfair or inequitable to a party to apply collateral estoppel.
Non-mutual defensive collateral estoppel (shield): asserted by non-party D: Fed and CA law allow it if person against whom it is used had a full opportunity to litigate in Case 1
Non-mutual offensive collateral estoppel (sword): asserted by a non-party P. Although disfavored, Federal and California law allow it if party asserted against (1) had full & fair opportunity to litigate in first case; (2) could foresee multiple suits; (3) P could not have joined easily in first cause; and (4) no inconsistent judgments on record .