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CA Bar Exam Essay Rules > Civil Procedure > Flashcards

Civil Procedure Flashcards

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1
Q

Three Traditional Basis for Personal Jurisdiction?

A
  1. Consent
  2. Domiciled in forum
  3. Present and served in forum
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2
Q

Modern Basis for Personal Jurisdiction?

A

Minimum contacts provided there is a long-arm statute that keeps with constitutional requirements.

California Long-Arm is to constitutional limits.

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3
Q

Minimum Contacts Analysis (My Professor Frequently Reminds Everyone From California to Study In Overdrive)?

A

“My Professors Frequently Remind Everyone From California to Study In Overdrive.”

Minimum contacts:
* Purposeful availment of benefits/protections of the state
* Foreseeability of being hauled into court
* Relatedness between contact and claim
* Essentially at home
Fairness factors:
* Convenience
* State’s interests
* Other interests

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4
Q

Two Bases of Federal Subject Matter Jurisdiction?

A
  1. Federal Questions
  2. Diveristy of Citizenship (complete diversity + exceeds $75,000)

Subject Matter Jurisdiction may be raised at any time, even sua sponte.

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5
Q

Determining Citizenship for Diversity?

A

Person: Domiciled
Corporation: State of Incorporation and/or Principle Place of Business (nerver center)
Unincorporated Association: Domicile of members
Alienage: Foreign citizen and U.S. Citizen

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6
Q

Three Types of California Subject Matter Jurisdiction?

A
  1. Unlimited Case: exceeds $25,000
  2. Limited Case: $25,000 or less
  3. Small Claims: $10,000 or less (person) or $5,000 or less (business)
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7
Q

Supplemental Federal Jurisdiction?

A
  1. Common nucleus of operative fact
  2. Same transaction or occurrence
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8
Q

Removal to Federal Court?

A
  1. Only Defendant may remove
  2. Thirty days to one year max
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9
Q

Remand?

A

Removal of action from federal to state court if removal improper or loss of federal jurisdiction.

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10
Q

Proper Venue Analysis?

A
  1. Where claim arose; OR
  2. Where Defendant reside

If none, then any venue where any D is subject to personal jurisdiction.

Fed = district where any D resides if all in one state
CA = county where any D resides, if any; otherwise any county

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11
Q

Definition of “resides” for Venue Analysis?

A

Person: Domicile
Corporation (Federal): Where subject to personal jurisdiction
Corporation (California): Principle Place of Business or where contract entered into, performed, or breached.

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12
Q

Transfer of Venue?

A

If original venue is proper:
* Fed: anywhere action could have been filed or all consent
* Cal: anywhere where interests of justice and convenience of parties served

If original venue is improper:
* Fed: Dismiss or transfer
* Cal: may transfer to proper county

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13
Q

Forum Non Conveniens?

A

Federal: may dismiss or stay if far more appropriate forum elsewhere

California: may dismiss or stay if another forum better considering interests of justice, public factors (i.e., applicable law), and private factors (i.e., convenience, location of witnesses and evidence).

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14
Q

Proper Notice Requirements?

A

Service of process by reasonable method with opportunity to be heard.

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15
Q

Three Methods of Service?

A
  1. Personal service
  2. Substituted service
  3. Constructive service (by mail if waived or by publicaiton in California if all else fails)
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16
Q

Substituted Method of Service?

A

Federal:
* Defendant’s usual abode with someone of suitable age/discretion;
* Defendant’s authorized agent; or
* any method permitted by state law.

California: only allowed if personal service cannot be accomplished with reasonable diligence. If so, must be left at Defendant’s usual abode with competent member of household who is at least 18 years old and mailed to that address.

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17
Q

Federal Choice of Law Analysis?

A

Erie Doctrine:
* State substantive law
* Federal procedural law

If unclear, apply outcome determinative test (substantive if substantially affects outcome) and balancing test (federal interest vs. state interest)

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18
Q

California Conflict of Law Analysis?

A

Tort: Comparative impairment test
Contract: if choice of law clause, fine if reasonable basis and no conflict with CA law; otherwise or if not, comparative impairment test.

Comparative impariment test = impairment to each state’s laws.

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19
Q

Pleading Requirements?

A

Federal: Notice pleading
California: Fact pleading

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20
Q

Four Complaint Requirements?

A
  1. Identify the parties
  2. Statement of claims and subject matter jurisdiction
  3. Demand for judgment
  4. Signature
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21
Q

Response to Complaint (Federal)?

A
  1. More Definite Statement
  2. Strike
  3. Lack of MSJ
  4. Lack of PJ (1st Response)
  5. Improper venue (1st Response)
  6. Insufficient process (1st Response)
  7. Insufficient service (1st Response)
  8. Failure to state a claim
  9. Failure to join indispensible party
  10. Answer with affirmative defenses
22
Q

Response to Complaint (California)?

A

1- Anti-SLAPP (suit brought to chill speech)

2 - General Demurrer
* Fail to state COA
* Lack of SMJ

3 - Special Demurrer
* Uncertain pleading
* Liability theory unclear
* Lack of legal capacity
* Another case exists
* Misjoinder of parties
* Fail to plead contract oral or written
* Fail to file required certificate (i.e., prof negligence claim)

4 - Motion to Quash
* Lack of PJ
* Insufficient process
* Insuficient service

5 - Answer with affirmative defenses

23
Q

Right to Amend Pleadings?

A

Federal: Once within 21 days; otherwise leave if justice requires.
California: Once before response (complaint) or hearing (demurrer); otherwise leave, granted liberally.

24
Q

Federal Relation Back Doctrine?

A
  • New Claims: same conduct, transaction, or occurrence.
  • New Defendant: same conduct, transaction, or occurrence; new party knew of action; and would have been named but for mistake
25
Q

California “Doe” Amendments?

A
  1. Timely filed;
  2. Genuine ignorance of: identity of party, facts giving rise to action, or law allows cause of action;
  3. Ignorance pled; and
  4. Three years to substitute.
26
Q

Permissive Joinder of Parties?

A

Claims arise from same tranaction or occurrence and at least one common question of fact or law.

27
Q

Party is a “necessary party” if:

A
  1. Court cannot provide complete relief
  2. Absent party’s interest will be harmed
  3. Absent party subject to multiple inconsistent obligations
28
Q

Must join necessary party if:

A
  1. Personal jurisidction; and
  2. Diversity not destroyed.
29
Q

If necessary party unable to join, court may:

A
  1. Dimiss because indispensible; or
  2. Proceed without.
30
Q

Impleader?

A

Defendant adds a Third Party Defendant to seek indemnity, subrogation, or contribution.

31
Q

Intervention?

A

Nonparty seeks to join because absence will impair her rights.

32
Q

Interpleader?

A

Property holder forces all potential claimants into a single suit.

33
Q

Compulsory Counterclaim?

A
  • Same transaction or occurrence
  • Must be raised
  • Supplemental jurisdiction will extend.
34
Q

Permissive Counterclaim?

A
  • Not same transaction or occurrence
  • Could be separate case
  • Supplemental jurisdiction will extend
35
Q

Cross-Claim or “Cross Complaint” in California?

A
  • Claim against co-party
  • Not compulsory
  • Same transaction or occurrence
  • Supplemental jurisdiction will extend
36
Q

Five Federal Class Action Requirements?

A
  1. Numerousity
  2. Commonality
  3. Typicality
  4. Adequacy
  5. Type of Class
37
Q

Three Types of Federal Class Actions?

A
  1. Prejudice - avoid inconsistent results or individual depleting fund
  2. Injunctive or declaratory relief
  3. Question of law/fact common to class predominate
38
Q

Two Federal Class Action Diversity Tests?

A
  1. Any named rep citizenship and any named rep claim exceeds $75,000.
  2. Class Action Fairness Act (CAFA): any class member diverse, aggregate exceeds $5 million, and 100+ class members
39
Q

California Class Action Requirements?

A
  1. Ascertainable class
  2. Member community interest (common question of law or fact, adequate representation, class substantial benefit)

There are no class types in California.

40
Q

Federal Rule 26 Mandatory Disclosures?

A
  1. Initial disclosures - those likely to have discoverable info, tangible evidence, damages/insurance
  2. Expert information - identity, qualification, and written report
  3. Pretrial witnesses and documents
41
Q

Discovery Tools?

A
  1. Depositions
  2. Interrogatories
  3. Request for Admissions
  4. Request to inspect and produce
  5. ESI
  6. Physical or mental exam upon showing physical or mential condition at issue and good cause
42
Q

Scope of Discovery?

A
  • Need not be admissible but reasonably calculated to lead to admissible evidence
  • Never privileged material
  • Never mental impression
  • Generally not work product unless there is substantial need and inability to obtain
43
Q

Motion for Summary Judgment?

A
  1. No genuine issue of material fact
  2. Entitled to judgment as matter of law
44
Q

Jury Trials and Mixed Legal and Equitable Claims?

A

Federal: Jury decides legal issues and then judge decides equitable.
California: Judge decides equitable issues and then jury decides legal issues.

45
Q

Judgment as a Matter of Law Standard (fed) or Directed Verdict (CA)?

A

Reasonable people could not disagree.

46
Q

Renewed Judgment as Matter of Law (fed) or Judgment Notwithstanding the Verdict (CA)?

A

Fed: Only allowed if JMOL raised first.
CA: Initial Directed Verdict not required

47
Q

Grounds for Motion for New Trial?

A
  1. Prejudicial error at tiral
  2. New evidence that could not be obtained before through reasonable diligence
  3. Prejudicial misconduct
  4. Judgment against the weight of the evidence
  5. Excessive or inadequate damages

Remittitur = damages too high; Additur = damages too low (not in fed)

48
Q

Grounds for Motion to Set Aside Judgment?

A
  1. Clerical errors
  2. Neglectful mistake
  3. Newly discovered evidence
  4. Void for lack of due process
  5. Fraud
49
Q

Appeal Final Judgment Rule?

A

Only final judgments may be appealed.

50
Q

Appeal Final Judgment Rule Exceptions?

A
  1. Injuctions
  2. Trial Court Certifies
  3. Collateral Issues
  4. Multiple claims/parties
  5. Extraodinary Writ
  6. Certification of Class Action
51
Q

Res Judicata/Claim Preclusion Requirements?

A
  1. Valid Final Judgment (Fed = rendered; CA = appeals done)
  2. Same P and same D (or privity)
  3. Same claim (Fed = same transaction or occurrence; CA = primary rights theory)
52
Q

Collateral Estoppel/Issue Preclusion Requirements?

A
  1. Valid Final Judgment (Fed = rendered; CA = appeals done)
  2. Same issue actually litigated
  3. Issue was necessarily determined (essential to judgment)
  4. Used against same party (or privity)
  5. Used by: Fed = same party or privity; CA = stranger allowed but defensive only if oppenent had opportunity to be heard or offensive (disfavored) if fair and equitable.

CA Bar Exam Essay Rules (16 decks)

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