Civ Pro 7 - Sheet1

Question 1

Civil Procedure

What type of pleadings does CA require?

Answer 1

Fact pleading.

• P must allege the ultimate facts of each element of each COA
• Heightened pleading for fraud
• This is more detailed than fed court’s ‘notice pleading’

Question 2

Civil Procedure

What methods of service are allowed in state court?

Answer 2

(1) Personal

(2) Substitute
- if personal service cannot with reasonable diligence be had

(3) Waiver
- D has 20 days to respond
- Service is complete when D executes the waiver

(4) Publication
- if service in any other way cannot with reasonable diligence be had
- almost never allowed

Question 3

Civil Procedure

What is the difference between federal and state waiver of process?

Answer 3

STATE

• Process is mailed to D by first class mail, postage prepaid
• D has 20 days to respond
• Service is complete when D executes the waiver

FEDERAL

• Process is mailed to D by first class mail, postage prepaid
• D has 30 days to respond
• IF D does NOT return waiver, D MUST be personally served BUT will have to pay the cost of service.

Question 4

Civil Procedure

What must the complaint contain?

Answer 4

(1) A statement of ultimate facts constituting the cause of action

(2) Demand for judgment
- If damages are demanded, a $ amount is required UNLESS:
- PI, Wrongful Death, or Punitive
- BUT SEE statement of damages

(3) Limited or Unlimited Cases

(*) PJDX NOT required

Question 5

Civil Procedure

What is a ‘statement of damages’

Answer 5

(1) IF P requests damages for a PI, wrongful death, OR request punitive damages
(2) DÊmay request a statement of damages
(3) P has 15 days to respond
(4) P cannot obtain a default until P provides the SOD to D

Question 6

Civil Procedure

When does D have to respond to P’s complaint?

Answer 6

30 days after service of process
OR
Answer w/in 10 days after demurrer or motion fails

-Federal allows only 20 days to respond

Question 7

Civil Procedure

What is the CA counter part to 12(b)(6)?

Answer 7

The general demurrer.

Question 8

Civil Procedure

What else can be raised by general demurrer?

Answer 8

Lack of SMJDX.

• This is rare because state courts have general jdx
• This only works for cases that federal courts have exclusive jdx (e.g., antitrust)

Question 9

Civil Procedure

What can be raised in a special demurrer?

Answer 9

(1) Complaint is uncertain, ambiguous, or unintelligible
(2) Complaint is unclear about which theories of liability are asserted
(3) Existence of another case between the same parties on the same cause of action
(4) Defect or misjoinder of parties
(5) Failure to plead whether a contract is oral or written
(6) Failure to file a certificate

Question 10

Civil Procedure

How can DÊrespond P’s complaint?

Answer 10

(1) General demurrer
(2) Special demurrer
(3) Motion to quash service of process
(4) Motion to dismiss or stay for inconvenient forum
(5) Motion to strike
- Anti-SLAPP motion to strike
(6) Answer

Question 11

Civil Procedure

When can a P demurrer to a D’s answer?

Answer 11

If the D’s answer does not state ultimate facts sufficient to constitute an affirmative defense.

Question 12

Civil Procedure

What are the federal counter parts to the CA ‘cross complaint?’

Answer 12

(1) Cross complaint against P
- Fed: counter claim

(2) Cross complaint against co-D
- Fed: cross claim

(3) Cross complaint against impleader 3rd party
- Fed: impleader

Question 13

Civil Procedure

Are fictitious D’s allowed in state court?

Answer 13

YES.

NOT in federal court

Question 14

Civil Procedure

What is the difference between the work product doctrine in CA and Federal Court?

Answer 14

California:
Must be created by attorney or his agent

Federal:
Must be created by the party, representative of a party, attorney, or his agent

Question 15

Civil Procedure

Is there discovery of consulting experts (those who will not testify at trial)?

Answer 15

NO

Not in state or federal court.

Question 16

Rule 11 Sanctions

Answer 16

Attorney must sign each paper certifying that the paper is:

(1) not for an improper purpose,
(2) the legal contentions are warranted by law, and
(3) the facts are supported by evidence.

Sanctions:

(1) imposed to deter, not to punish
(2) can be granted sua sponte or on motion
(3) if on motion, opposing counsel must serve on party; party has 21 day safe harbor during which they can withdraw their papers
(4) Fines are paid to the court

Question 17

CA Frivolous Litigation

Answer 17

21 day safe harbor applies both to sactions motions and sua sponte sanctions;

Court can require payment of attorney’s fees and expenses if it finds bad faith or frivolous tactics in litigation (without merit solely for the purpose of harassing an opposing party); there is no safe harbor for fees/expenses, but there must be notice and an opportunity to be heard