Civ Pro 8 - Sheet1 Flashcards
Civil Procedure
Can an attorney seek to limit discovery by claiming the information sought is private?
YES
- The CA constitution recognizes a right of privacy
- The court must balance the needs for discovery against the need for privacy
Civil Procedure
Does an attorney have a duty to supplement discovery responses?
NOT in CA so long as the information given was accurate and complete when given.
In Federal court, YES.
Civil Procedure
Because there is not duty to supplement discovery responses in CA, how does the opposing party ensure accurate and complete responses?
He may request Supplemental Discovery up to 2 times before the trial date is set AND 1 time after.
-This is ONLY allowed in UNLIMITED cases
Civil Procedure
What are the types of class actions in state court?
THERE are NONE.
-Unlike federal court
(3 types: Damages; Prejudice; Injunction/Declaratory)
Civil Procedure
What are the types of dismissal in state court?
(1) Voluntary
- Discretion to dismiss w/ or w/o prejudice
(2) Involuntary
- Discretion to dismiss if not brought to trial w/in 2 years of filing
(3) Mandatory
- Must dismiss if:
i) Case not brought to trial w/in 5 years of filing
ii) OR process was not served w/in 3 years of filing
Civil Procedure
Right to a Jury Trial
State
v.
Federal
STATE
- CA Constitutional right
- 12 jurors
- No jury in equity cases even if there are incidental law claims
- 3/4 verdict
FEDERAL
- 7th Amendment Right
- 6 to 12 jurors
- No jury in equity cases BUT if there are incidental law claim, must be a jury trial
- unanimous verdict (unless otherwise agreed)
Civil Procedure
When will a state court grant a trial doe to excessive or inadequate damages?
When the award ‘shocks the conscience.’
Civil Procedure
Does a court always have to grant a motion for a new trial if the award ‘shocks the conscience?’
NO
Remittitur (lower)
-Give P choice of lower award or new trial
OR
Additur (raise)
-Give D to pay higher award or new trial
Civil Procedure
Is additur allowed in federal court?
NO
- It is unconstitutional, in violation of the 7th amendment.
- 7th amendment has not been incorporated
- Therefore, state courts have the power of additur
Civil Procedure
When are interlocutory reviews allowed (appeal of a non-final judgment)?
(1) By statute
(2) Collateral order rule
(3) Extraordinary writ
- mandate
- prohibition
(4) **Grant of new trial is immediately appeallable
Civil Procedure
What law is used for claim and issue preclusion?
The law of the system that decided the 1st case.
E.g., if state law decided case 1, use state law for claim and issue preclusion in case 2 even if it is in federal court.
Civil Procedure
What are the elements of claim preclusion?
(1) Same claimant against the same D
(2) Case 1 ended in a valid final judgment on the MERITS
(3) Same cause of action
Civil Procedure
When is a judgment ‘on the merits?’
ALWAYS
UNLESS
(1) Court said otherwise
(2) Lack of JDX
(3) Improper Venue
(4) Failure to join indispensable party
Civil Procedure
For purposes of issue and claim preclusion, how do you determine if the cause of action is the same?
FEDERAL:
- Same T/O
- property injury = bodily injury IF arose out of the same T/O
CA:
- Same Primary Rights
- property injury bodily injury
Civil Procedure
What are the elements of issue preclusion?
(1) Case 1 ended in a valid, final judgment on the merits
(2) Same issue was actually litigated and determined in Case 1
(3) The issue was essential to the judgment of Case 1
(4) Against a party to Case 1
(5) By whom?
(a) Mutuality (CL):
- someone who was a party in case 1
(b) Non-mutual Defensive:
- Modernly allowed
(c) Non-mutual Offensive:
- Modernly allowed So long as fair
