Civ Pro Distinctions

Question 1

Classes of cases in CA

Answer 1

Unlimited - more than $25,000
Limited - $25,000 or less
Small Claims - $10,000 or less for individuals; $5,000 or less for businesses

Question 2

Long arm statute (CA)

Answer 2

Coextensive with U.S. Constitution, so personal jurisdiction exists if “minimum contacts” established.

Question 3

Can if a non-resident comes to CA just for a trial or deposition, are they immune from service of process?

Answer 3

No.

NOTE: Fed rules allow immunity.

Question 4

If there is a conflict of laws, how do CA courts resolve them for contracts and torts?

Answer 4

Government interest inquiry (which state has greatest interest in outcome).

NOTE: a choice of law provision will be enforceable unless contrary to public policy.

Question 5

What must be done following substituted service to defendants in CA?

Answer 5

A follow-up mailing to defendant.

NOTE: not required in Fed court.

Question 6

What effect does a waiver of service have in CA?

Answer 6

None.

In fed court, it will give the defendant 60 days to answer.

Question 7

What is difference between CA and fed complaints?

Answer 7

CA is FACT-pleading, which requires that plaintiff allege all of the material facts that make up the cause of action.

Fed is NOTICE-pleading, which only requires “short and plain statement” of the claims.

Question 8

What is CA’s version of Rule 12(b) motion?

Answer 8

1. General Demurrer: Lack of SMJ/failure to state sufficient facts
2. Special Demurrer: lack of capacity, defect in Joinder, uncertain pleading.
3. Motion to Quash Service of Summons: this is used for defects in service AND PJ. If they file in an answer, they will be deemed to have APPEARED in court (thus waiving personal jurisdiction).

NOTE: meet and confer is required prior to filing of demurrers.

Question 9

What is the CA distinction for a motion on judgment of the pleadings (Rule 12(c))?

Answer 9

Meet and confer required first

Question 10

What are CA’s motions to strike?

Answer 10

Two types:

1. Motion to Strike -strike any irrelevant, scandalous, improper matter included in a pleading
2. Anti-SLAPP motion - within 60 days after complaint, move to strike suit that arises from protected activity (free speech or right to petition). If D shows it arises from protected activity, burden shifts to P to show probability of success.

Question 11

What is CA distinction with Answer?

Answer 11

Can file a general denial, rather than specifically denying each claim.

Question 12

CA Amendment as a matter of right distinction

Answer 12

May amend complaint once before answer/demurrer/motion to strike filed. May also amend complaint/answer after date for filing opposition to demurrer or granting order to strike.

Question 13

Relation-back

Answer 13

CA allows “Doe” defendants, if defendant is genuinely unknown at time of filing. Thereafter, Plaintiff must name “Doe” in complaint and it will relate back to the original filing date.

Question 14

Discovery - Mandatory disclosures and continuing duty to disclose.

What are the mandatory disclosure’s in Fed?

Answer 14

NO mandatory disclosures or continuing duty to disclose in CA.

1. Initial disclosures - discoverable information, tangible evidence, damages computation, and insurance documents.
2. Expert testimony - identity, qualifications, written report
3. Pretrial disclosures - witnesses, list of exhibits

Question 15

Does right to privacy apply in CA discovery?

Answer 15

Yes, CA constitution so provides.

Question 16

Is there a limit on depositions in CA?

Answer 16

No limit.

Fed limit - 10 (unless judge grants more)

Question 17

Jury Unanimity - Required?

Answer 17

NO in CA, only 3/4 needed.

Fed requires unanimous verdict.

Question 18

What is additur and remittur, and what is the CA distinction?

Answer 18

Additur - if jury’s damages are inadequate, court can offer new trial or enhanced judgment.

Remittur - If court thinks verdict is excessive, it can offer reduction or damages or new trial.

In fed court, additur is not permitted, only a new trial.

Question 19

Res Judicata - “final judgment” in CA

Answer 19

A judgment is final after conclusion of appeal, or time for appeal has expired.

In fed, judgment is final when rendered (no need for appeal period to run).

Question 20

When is substituted service permitted in CA?

Answer 20

Only after personal service cannot be accomplished after reasonable diligence.

Question 21

When can is service by publication allowed?

Answer 21

If all else fails and attorney provides affidavit of diligence.

Question 22

How is service accomplished to foreign country (CA and Fed)?

Answer 22

1. As court directs
2. In accordance with laws of foreign jurisdiction
3. In accordance with foreign treaty

Question 23

How long in CA to file answer?

Answer 23

30 days (21 in fed court)

Question 24

What is an impleader, and what does CA call it?

Answer 24

mechanism a D can add 3rd party to claim to shift blame.

CA calls “cross-complaint”

NOTE: CA calls ALL 3rd party actions (counterclaims, cross claims, impleader) “cross-complaints”

Question 25

What is the distinction in CA regarding physical exams?

Answer 25

In CA, defendants are allowed 1 physical exam AS OF RIGHT of the plaintiff if physical condition is at issue (e.g., personal injury case). P’s attorney can attend exam.

(In fed court, good cause needs to be shown and physical condition needs to be at issue).

Question 26

What is the standard for motion for summary judgment?

Answer 26

Moving party must show that:

1. no genuine issue of material fact
2. Entitled to judgment as matter of law

Question 27

What is res judicata? What are the requirements?

Answer 27

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

1. Valid judgment on the merits
2. Same plaintiff and same defendant were parties (or successor in interest or representative of parties)
3. The same claim is asserted in prior case and subsequent case.
   NOTE: CA follows “primary rights theory” which allows separate cause of action for each primary right stemming from a single transaction (unlike Fed).

Question 28

What is collateral estoppel? What are the requirements?

Answer 28

Precludes relitigation of a particular issue that has already been decided in prior litigation.
1. Valid final judgment
2. Same issue was actually litigated (i.e., extensive evidence was heard)
3. Issue was essential to the judgment (not just incidental)
4. CAN ONLY be used AGAINST someone who was a party (or in privity with a party) in the prior suit.
5. CAN ONLY be use BY:
Traditional rule: someone privy to the prior case
CA: allows a “stranger” to the prior case to rely on prior judgment IF doing so is “fair.”