Civ Pro Flashcards
1
Q
Proper Court
A
JDX over persons involved, subject matter, proper venue
Defendant notice of suit and proper law used
2
Q
PJ
A
Proper JDX over the parties
3
Q
Ways to get PJ
A
Traditional
General
Specific
4
Q
Traditional PJ
A
Personal Service
Consent
General Appearance
Domiciled
5
Q
Personal Service Trad PJ
A
Present in the state when served (except when brought via fraud)
6
Q
Consent Trad PJ
A
In advance through contract
7
Q
General Appearance Trad PJ
A
If negotiates settlement Appearing to confirm settlement Seeking ex parte relief Local agent for service of summons Signing acknowledgment of service form Participation before filing motion to quash
8
Q
CA Gen Appearance Trad PJ
A
Allowed for temp entering state jud proceed
9
Q
Domiciled Trad PJ
A
Physical presence
Subjective intent to remain
10
Q
General PJ
A
Domiciled for individual
Entity
Systematic and continuous contact with forum OR state of incorporation
11
Q
Specific PJ Long Arm
A
Reach beyond own borders to assert JDX over nonresident under certain specified situations
If no long-arm, assumed to be in line with Federal rule
12
Q
CA Specific PJ Long Arm
A
Any person or property up to limits of the Constitution
13
Q
Minimum Contacts Long Arm
A
“[S]ufficient minimum contacts with the forum state such that asserting jurisdiction over him does not offend traditional notions of fair play and substantial justice”
14
Q
Req to Meet Minimum Contacts
A
Purposeful Availment
Relatedness
Foreseeability
Fairness/Reasonableness
15
Q
Purposeful Availment
A
Availed himself the benefits and protections: Presence in forum Doing business in forum Stream of commerce Effects from outside forum Internet sliding scale Property Contracts
16
Q
Relatedness Minimum Contacts
A
The closer the contact related to claim less contacts need corp
Always at home in state of incorp and principal place of bus and others that render corp at home
17
Q
Foreseeability Minimum Contacts
A
Reasonably foreseeable to be haled into court
18
Q
Fairness Reason Minimum Contacts
A
Burden of defendant VS
Forum state’s interest in adjudicating
Plaintiff’s interest in convenient relief
Access to evidence and witnesses
Interstate efficiency
Shared interest in furthering social policy
19
Q
SMJ
A
Proper JDX over subject matter
20
Q
Types of SMJ
A
Fed Question
Diversity
21
Q
Fed Question SMJ
A
I.e. Constitution, federal statutes, treaties
Well-Pleaded Complaint
When the federal law issue is presented in the plaintiff’s complaint only the complaint; not defenses
22
Q
Exception Cases to Diversity
A
Probate
Domestic Relations
23
Q
Req of Diversity
A
Complete Diversity
Amount in Controversy
24
Q
Complete Diversity
A
All Plaintiffs/All Defendants diverse between the v
Where domiciled
25
Exceptions to Complete Diversity
```
Interpleader
Only 2 adverse claimants
Class actions over $5,000,000
Any member of the class diverse
75 persons died from same accident
Only one defendant needs to be diverse
```
26
Domicile of Individuals Complete Diversity
Physical present
| Subjective intent to stay permanently
27
Domicile of Corp Complete Diversity
State were incorporated
Principal place of business (PPB)
“Nerve center” where officers direct, control, and coordinate the corp’s activities (headquarters)
28
Domicile Unincorp Ass'ns Complete Diversity
Citizenship of all members
29
Domicile Incompetent Complete Diversity
Determined by them AND
| NOT their representatives
30
Domicile Alienage Complete Diversity
No fed JDX between aliens UNLESS also US citizens on both sides
31
Amount in Controversy
Exceeds $75,000 at time of action
32
Aggregation of Amount in Controversy
One plaintiff v one defendant
Joint tortfeasor defendants
Multiple if common undivided interest BUT may have to pay defendant’s litigation costs if recovers less than $75,000
NOT allowed for counterclaims
Counterclaims not included to meet plaintiffs amount
Compulsory not required to meet
Permissive must meet
33
Supp JDX SMJ
Allows extension of subject matter JDX when additional claim does not have individual JDX AND based on common nucleus of operative fact
34
CA SMJ
General subject matter JDX UNLESS within exclusive JDX of another court
35
CA SMJ Classifications
Unlimited
Limited
Small Claims
If misclassified, may seek reclassification
36
CA Unlimited SMJ
```
Superior Court
Amount exceeding $25,000
No limitations on:
Pleadings
Discovery
Relief Available
Can recover any amount
```
37
CA Limited SMJ
```
Superior Court
$25,000 or less
Limitations on use of process AND
Equitable relief available
Cannot recover more than $25,000
```
38
CA Small Claims SMJ
Small Claims Court
Individual $10,000 or less
Business $5,000 or less
39
Removal
Move case from state court to federal court if originally could have been brought there
Only defendants eligible to remove UNLESS defendant citizen of forum
To federal district court in same state action is pending
Within 30 days after service of initial summons or pleading
40
Remand
Attempts to remove are improper
Federal court can remand back to state court
Plaintiff must remand within 30 days of removal
No time limit if no subject matter JDX
41
Venue
Geographic district that is the
| Proper place for particular case to be heard
42
Place of Proper Venue
District where claim occurred OR substantial part of claim arose OR where land in dispute is located
District where any defendant resides if all defendants residents of same state
43
CA Venue Claim Occurred
County where claim arose or where land in dispute located
44
CA Venue where Defendant Resides
County where any defendant resides when case is filed
| If no defendants reside in CA, then any county
45
Catchall for Venue
If neither claim occurred or defendant resides, then venue proper where any defendant subject to PJ
46
Transfer of Venue when OG Venue Proper
Can transfer where could have been filed OR all parties consent
47
CA Transfer of Venue when OG Venue Proper
At judge’s discretion where interests of justice and convenience
48
Transfer of Venue when OG Venue Improper
Dismiss OR interest of justice, transfer to proper venue
| Can be waived by absence of timely objection
49
CA Transfer of Venue when OG Venue Improper
Transfer to proper county when court in complaint improper
50
Forum Selection Clauses
Generally upheld
51
Forum Non Conveniens
May dismiss or stay case if far more appropriate forum (another state or country)
52
CA Forum Non Conveniens
May dismiss or stay case if more suitable forum (another state or country
Look to interests of justice
53
CA Forum Non Conveniens Interests
Public: which comm burdened with jury duty
Private: convenience, witnesses, evidence
54
Notice
Met if reasonably calculated to apprise interested parties of pendency of action and afford opportunity to present objections
55
Service of Process
Delivery of summons and copy of compliant
56
Method of Service of Process
By anyone at least 18 and not a party
57
Types of Methods of Service of Process
Personal Service
Substituted Service
Constructive Service
58
Personal Service
Always adequate
| Personal delivery to defendant
59
Substituted Service
Left at defendant’s usual abode served upon someone of suitable age and discretion who resides there OR served to authorized agent
60
CA Substituted Service
Only if personal service cannot be accomplished
Defendant’s usual abode with a competent member of household at least 18 years old
Must be informed of contents
Must mail a copy to the party at the address
61
CA Corp Sub Service
Agent OR apparently in charge at office
62
CA Foreign Sub Service
Use method foreign prescribes or
| Any method under law of place
63
Constructive Service
Served by registered mail ONLY IF defendant agrees to waive service of process
64
CA Constructive Service
Only if nothing else works
| Affidavit that defendant cannot be served with reasonable diligence
65
Choice of Law Fed Q
Fed substantive and procedural laws
66
Choice of Law Diversity
Must apply state substantive law and federal procedural law
Prevent forum shopping if conflict between state law and fed law
If Procedural and FRCP on point, tests unnecessary
67
Tests for Diversity Choice of Law
Outcome Determinative Test
| Balance of interests
68
Outcome Determinative Test
Substantive if substantially affects outcome
69
Balance of interests
Fed interest of fed law vs. state interest of state law
| If state greater interest, substantive
70
CA Choice of Law
Deemed substantive under Erie
71
CA Choice of Law Tort Actions
Two state laws in conflict
| Comparative impairment to each state’s interest
72
CA Choice of Law K Action w/out Choice of Law Provision
Comparative impairment of each state’s interest
73
CA Choice of Law K Action w/ Choice of Law Provision
No conflict:
Applied so long as reasonable basis and not conflict with CA policies
Conflict with CA policies:
CA applies IF CA has materially greater interest in CA laws applied
74
Pleadings
Documents that set forth claims and defenses
75
Notice of Pleadings
Provide opposing party with reasonable notice and nature of claim
76
CA Pleadings
Plead ultimate facts to support each element of COA
Exceptions:
PI or wrongful death
77
Rule 11 Pleadings
Requires signature that paper is proper legal contentions warranted by law
Factual contentions have evidentiary support
Does not apply to discovery documents
78
Sanctions of Rule 11
Sanctions may be imposed but subject to 21 day safe harbor rule
Allowed to withdraw or correct within 21 days
79
Complaint Req
```
Used by plaintiff to raise issues
Identification of parties
State of SMJ
Statement of claim with enough facts to
Support plausible claim EXCEPT fraud, mistake, and special damages
Require specificity
Demand for judgment
Signature of plaintiff or attorney
```
80
CA Complaint Req
Identification of parties including fictitious “Doe” when unknown
Statement of claim
Specific facts supporting every element
Demand for judgment amount of damages sought UNLESS for punitive damages for PI or Wrongful Death
Signature of plaintiff or attorney
81
Rule 12 Answer Time
Answer by motion or answer within 21 days of service of process 60 if service waived
82
CA Answer Time
30 days to respond
83
Answer Req Rule 12
Defendant’s response to complaint
Must respond to allegations by denying, admitting, or lacks sufficient information failure to deny is an admission
Assert affirmative defenses
84
CA Answer Req
Factual details when asserting
| Affirmative defenses
85
Motion for More Definite Statement
Complaint too vague
86
CA Motion for More Definite Statement
Special demurrer that pleading uncertain
87
Motion to Strike Pleading
Immaterial or redundant issues
88
CA Motion to Strike Pleading "Anit-Slapp"
Anti-Strategic Lawsuits Against Public Participation
Suits brought to chill exercise of free speech and petition shifts burden to plaintiff to show probability of winning on merits
89
12(b) Defenses
```
Failure to state claim upon which relief can be granted
Failure to join party
SMJ
PJ
Venue
Process/Service
```
90
12(b) defenses anytime until trial concluded
Failure to state a claim on which relief can be granted
| Failure to join party
91
12(b) defenses First response or waived
PJ
Venue
Process/Service
92
12(b) defenses anytime before all appeals exhausted
SMJ
93
CA Demurrer Two Types
General
| Special
94
CA General Demurrer
Failed to state facts sufficient to constitute COA
| Lacks SMJ
95
CA Special Demurrer
Only in unlimited cases
Can be raised in the answer
Uncertain pleadings same as more definitive statement
Unclear about which theories of liability asserted against defendants
Lack of legal capacity to sue
Existence of another cases between parties for same COA
Defect or misjoinder of parties
Failure to plead k is oral or written
Failure to file required certificate
96
CA Motion to Quash Service of Summons
Special appearance AND separate from answer
Before or concurrently with demurrer or answer
Lack of PJ
Insufficient process/service
97
Amend Rights
Right to amend once within 21 days of service
| Otherwise, must get court approval but is granted freely if justice so requires
98
CA Amend Rights
Right to amend once before answer or demurrer to complaint is filed OR after demurrer but before hearing on demurrer
Otherwise, court approval
Granted liberally
99
Amend Relation Back
After SoL runs, can amed claim
| Relates to same conduct, transaction, or occurrence
100
Claim Amendment
Relates back to date of OG pleading
| Out of same transaction
101
CA Claim Amendment
Involve same accident or injuries and refer to same instrumentality
102
Person Amendment
Party knew of the OG action AND knew should have been named
103
CA Person Amendment
```
“Doe” amendments:
OG complaint timely and with all “does”
Plaintiff genuinely ignorant of identity
Ignorance pled with specificity
Must substituted named defendant within 3 years
```
104
Permissive Party Joinder
Claim arises out of same transaction AND one common question of fact or law
Must have SMJ
105
CA Permissive Party Joinder
Adverse claims OR COA defenses
| From same transaction and present common q of law or fact
106
Necessary Party Joinder
```
Court cannot complete relief
Absent party’s interest will be harmed
Absent party is subject to multiple inconsistent obligations
Must be joined if:
Court has PJ
Doesn’t destroy diversity
```
107
Necessary Party Joinder Unable to Join
If there is an alternative forum, assess likelihood & extent of prejudice
Whether can shape relief to avoid prejudice
May either dismiss b/c party indispensible OR proceed w/ case w/out necessary party
108
Impleader
Defendant can add a 3rd party defendant for indemnity or contribution
Supplemental JDX will apply b/c common nucleus of operative fact
Venue need not be proper
109
CA Impleader
Called a cross-complaint
| Allows addition of any claim on which 3rd party defendant liable so long as same transaction or occurrence
110
Intervention
Nonparty claims an interest AND disposition in absence will impair rights
111
CA Intervention
Interest direct and immediate
| Not allowed if indirect and consequential
112
Interpleader
One holding prop forces all potential claimants into one lawsuit
113
Two Types of Interpleader
Statutory
| Rule 22
114
Statutory Interpleader
Only one claimant must be diverse from one other claimant
| Amount in controversy $500 or more
115
Rule 22 Interpleader
Stakeholder diverse from every claimant
| Amount in controversy exceed $75,000
116
Counterclaim
Offensive claim against an opposing party
117
Compulsory Counterclaim
Same transaction or occurrence raised in pending case or waived
Supp JDX so no independent SMJ required
118
Permissive Counterclaim
Same transaction or occurrence BUT may be raised in a separate case
No Supp JDX so independent SMJ required
119
CA Counterclaim
Uses cross complaint for all 3rd party actions
120
Cross Claim
Against a co-party
Must arise out of same transaction
Never compulsory
Supp JDX so no independent SMJ required
121
Class Action Requirements
Numerosity
Commonality
Typicality
Adequacy
122
Numerosity
Too many for joinder to be practical
123
Commonality
Question of law or fact are common
124
Typicality
Representative’s claims typical of class
125
Adequacy
Representation will fairly represent class
126
Types of Class Actions
Prejudice: necessary to avoid inconsistent results
Injunctive or declaratory relief is sought
Question of law/fact common to class: predominate over questions affecting individuals
127
Citizenship for Class Actions
Only citizenship of named rep is used
| Amount in controversy satisfied by any named rep
128
Class Action Fairness Act
Relaxes the requirements for some
Any class member diverse from any defendant
Aggregation exceeds $5,000,000
100 members
129
CA Class Actions
Ascertainable class
Well-defined community of interest:
Common questions of law or fact
Representation will adequately represent class interests
Substantial benefit to parties and the court
No types
Notice not required and publication acceptable method
130
Discovery Standard
Reasonably calculated to lead to discovery of admissible evidence
131
CA Discovery Standard
Disclosure of all material to subject matter in pending lit
132
Mandatory Disclosures for Discovery
Initial disclosures supplying info about disputed facts
Expert testimony info
Pretrial disclosures
133
Initial disclosures supplying info about disputed facts
Persons likely to have discoverable info
Copies or descriptions of tangible evidence
Damages computation and supporting documentation
134
Expert testimony info
Identity of the expert
Qualifications
Written report
At least 90 days before trial
135
Pretrial disclosures
List of non-expert witnesses
List of documents or exhibits
14 days to object
136
CA Mandatory Disclosure
Not required BUT
| May be requested
137
Depositions
```
Examination of a witness
Occurs under oath
Recorded by sound, video, or stenography
Parties allowed
Nonparties by means of subpoena
Once only UNLESS court approval
```
138
Limitations of Depos
10 depositions
| Cannot exceed 7-hour day
139
CA Limitations of Depos
No limits on number of depositions
| But 20 day limit
140
Interrogatories
Questions propounded in writing to another party
Must be answered in writing under oath
Answer within 30 days
NOT for nonparties
141
Limitations of Interrogatories
25 questions, including suparts UNLESS
| Court approval
142
CA Interrogatories
Unlimited form 35 specific interrogatories UNLESS court permits because of
Declaration of Additional Discovery
143
Request for Admissions
Admit the truth of discoverable matter NOT nonparties
144
CA Request for Admissions
Max 35 UNESS court permits because of
| Declaration of Additional Discovery
145
Requests to Inspect and Produce
Party or nonparty w/ subpoena
| Make available for review and copying documents, electronic copies, other tangible items, or permit entry on property
146
CA Requests to Inspect and Produce
Party
Nonparty similar effect to take
Deposition subpoena duces tecum
147
Electronically Stored Data
Meet to discuss and report to court
If not reasonably accessible due to burden or cost, court may still order and impose cost-sharing measures
Must take reasonable steps to preserve OR be sanctioned
148
CA Electronically Stored Data
Treated as docs and things
149
Request for physical or mental examination
Sought from an opposing party
| Obtain court order upon showing physical or mental condition at issue AND good cause for an examination
150
CA Request for physical or mental examination
Allows defendant one physical exam of plaintiff as matter of right when plaintiff condition at issue
All others require court approval
151
CA Limited Cases Discovery
Only 35 total for ROGS, Inspection, and requests
152
CA Scope of Discovery
Right to privacy v. need for discovery
153
Discovery Privilege
Not discoverable
154
CA Discovery Privilege
Requires responding party to object with particularity identify document, author, date, recipients, specific privilege applicable
155
Discovery Physician/Patient Privilege
Many states recog but not FRCP
| Considered under Erie
156
Discovery Attorney/Work Product
Material prepared in anticipation of litigation
| Generally not discoverable UNLESS substantial need AND inability to obtain information otherwise
157
Discovery Absolute Privilege
Mental impressions, opinions, and legal theories
| Generated by party or attorney, or rep of party
158
CA Discovery Absolute Privilege
Generated by attorney or his agent
159
Motion to Compel
Fails to respond to discovery
| Must be served on all parties and include certificate attempt to confer
160
Discovery Sanctions
Holding a non-complying party in contempt
| Striking pleadings, imposing fees, AND ordering default judgment
161
Voluntary Dismissal
One without prejudice
| Court may grant after answer or MSJ UNLESS substantial prejudice to defendant
162
CA Voluntary Dismissal
Plaintiff may dismiss w/ prejudice unless parties agree or good cause
163
Involuntary Dismissal
At defendant’s request or court’s own motion usually with prejudice
164
CA Mandatory Dismissal
Not brought to trial within 5 years of complaint OR 2 years from filing til service of process
165
MSJ
No genuine issue of material fact AND entitled to judgment as a matter of law
Viewed in light most favorable to non-moving party
Evidence must be firsthand knowledge
Credibility not weighed here
Can grant partial
166
CA MSJ
No COA or meritless or no defense
Burden shifts to opponent to show
Triable fact exists
167
7th Amend
Preserves right to jury trial in civil actions at law
Judge decides issues of equity
Legal issues decided first, then equity
Must demand w/in 14 days after service of last pleading
Raising jury triable issue OR waived
168
Jury Composition
Each side has unlimited
challenges on voir dire for cause AND 3 peremptory challenges
Cannot be race or gender
Contains 6-12 jurors and unanimous vote required
169
CA Jury
Demand must be made at time case set for trial OR
W/in 5 days after notice of setting
Equity, then legal
170
CA Equitable Cleanup Doctrine
Main purpose equitable AND only legal issue concerns damages that are incidental
Judge may hear whole case; no jury required
171
CA Jury Composition
Each side has unlimited challenges on voir dire for cause AND 6 peremptory challenges
Cannot be race or gender
12 jurors and alternates
¾ vote required for civil
172
JMOL
One party files motion after
Other side has been heard at trial
“Reasonable people could not disagree on the result”
173
CA JMOL
Called directed verdict
174
Renewed JMOL
After jury reached verdict
Must have filed JMOL properly
“Reasonable people not disagree on result”
Within 28 days after entry of judgment
175
CA Renewed JMOL
15 days after mailing or service of notice of entry OR 180 days after entry of judgment
Motion for Judgment Notwithstanding Verdict
Not required to make JMOL first
176
New Trial
Within 28 days of entry of judgment
Grounds for new trial:
Prejudicial error making judgment unfair
New evidence that could not be obtained for OG trial
Prejudicial misconduct of party, attorney, or juror against weight of evidence
Excessive damages or inadequate damages
177
CA New Trial
15 days after mailing or service of notice of entry OR 180 days after entry of judgment
178
Motion to Set Aside Judgment
Clerical errors
Neglectful mistakes within one year after judgment
Newly discovered evidence could not be obtained for OG trial within one year after judgment
Fraud or representation within one year after judgment
Judgment is void for lack of due process
179
Conditional New Trial Remittitur
Judge orders new trial for defendant
To take place UNLESS plaintiff agrees to a reduced aware of damages
Judge found “excessive as to shock conscious”
180
CA Additur
Judge orders plaintiff new trial UNLESS defendant agrees to increased award
Damages were insufficient
181
Final Judgment Rule
Only final judgments may be appealed
Ultimate decision made by trial court on merits of entire case such that
Final judgment as to all parties and all COA
182
Exceptions of Final Judgment Rule
Injunctions and some interlocutory orders
Trial court certifies an interlocutory for appeal
Collateral orders i.e. procedural issues
Multiple claims or parties and some issues are pending BUT one issue is final
Extraordinary Writ
Aggrieved party may seek to compel lower court to act, or refrain from acting
183
Appeal Time
Within 30 days after entry of final judgment
184
CA Appeal
Exception for judgment of one of several parties within 60 days after service of notice of entry OR 180 after entry if no notice served
185
Standards of Review
De Novo
Clearly Erroneous
Light most favorable to affirming jury's verdict
Abuse of discretion
186
Matters of Law
Reviewed de novo
| Substitute judgment for that of trial judge
187
Questions of fact determined by a judge
Clearly erroneous standard
188
Questions of fact determined by a jury
Light most favorable to affirming the jury’s verdict
189
Mixed questions of fact and law
De novo
190
Matters discretionary to judge
Abuse of discretion standard
| Only if clearly wrong
191
Claim Preclusion (Res Judicata
Precludes relitigation of a claim already decided in prior litigation between same parties
192
Claim Preclusion Req
Valid Final Judgment
Same plaintiff and defendant
Same claim
193
Valid Final Judgment
When judgment is rendered
194
CA Valid Final Judgment
When appeals have concluded
195
Claim Preclusion Same Claim
Same transaction or occurrence
196
CA Claim Preclusion Same Claim
Primary rights theory
| Separate COA for each invasion of primary right
197
Issue Preclusion (Collateral Estoppel)
Precludes relitigation of a particular issue already decided in prior litigation
198
Issue Preclusion Req
Final judgment on merits
Same issue actually litigated
Issue was essential to judgment
Same party or in privity of prior suit
199
CA Issue Preclusion Same Party or In privity
Allows stranger to prior case to avoid liability when party against whom being used
Had fair opportunity to be heard on critical issue
Establish an issue
Fair and equitable
