Civil Procedure

Question 1

Broad Scope of Discovery

Answer 1

Discovery is generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in the action and proportional to the needs of the case.

Information need not be admissible in evidence to be discoverable.

The primary test is whether the information sough is relevant to a party’s claim or defense, in that it appears reasonably likely to lead to the discovery of admissible evidence. (can be too wide in scope to be relevant)

The party being compelled to produce must have access to the information.

Question 2

Timing of Discovery

Answer 2

A party generally may not seek discovery until after the discovery conference pursuant to Rule 26(f). It requires parties confer as soon as practicable before the court will compel discovery.

Question 3

Special/Written Interrogatories Limit

Answer 3

Any party may serve no more than 25 written interrogatories on any other party. The court has the power to raise the limit, upon permission being sought.

Question 4

Interrogatory - Proper Use

Answer 4

A written interrogatory is a discovery device that allows a party to request answers to questions about non-privileged matters relevant to any party’s claim or defense.

It is not a proper discovery device for requesting production of document. (Request to produce documents is a discovery device)

Question 5

Request to Produce Documents

Answer 5

A request to produce documents is a discovery device that allows parties to request production and/or inspection of designated documents in the responding party’s possession, custody, or control. The directed party must respond in writing (1) within 30 days of being served or (2) within 30 days after the parties discovery conference if the request was served before it.

Question 6

Objection to Interrogatory

Answer 6

Each interrogatory must be answered fully and separately under oath unless the responding party objects. The grounds for objecting to an interrogatory must be stated with specificity. Any grounds not stated are deemed waived unless excused for good cause by the court. You have 30 days to respond to interrogatories from service.

Question 7

Motion to Compel - Timing

Answer 7

If a party fails to respond to discovery, then the party seeking the information may move to compel such discovery upon showing they have in good faith conferred or attempted to confer with the opposing party in an effort to obtain discovery without court action.

Question 8

Mental and Physical Exams

Answer 8

A party may seek to have the other party submit to a physical or mental examination when the other party’s physical or mental condition is in controversy.

An order to compel physical or mental examination may be made only upon motion, for good cause shown, and the person to examined and all parties must be given notice specifying time, place, scope, and who is doing the exam.

Question 9

Mandatory Disclosure - Expert Witness

Answer 9

A party is required to disclose the identities of persons who may testify as expert witness and to produce an expert report for each such witness. Expert witness must be disclosed at least 90 days before trial.

If the expert was retained or specially employed by another party in anticipation of litigation or to prepare for trial but is not expected to be called as a witness, then discovery is permitted only on a showing of exceptional circumstances under which it is impracticable for the party to obtain facts of opinion on the same subject by other means.

Question 10

Objection on the Basis of a Privilege

Answer 10

Whenever a party withholds information on the basis of a privilege, the party must expressly state that claim of privilege and describe the materials or communications in a manner that allows the other party to assess the applicability of the privilege.

Question 11

Work-Product Doctrine (A/C Privilege)

Answer 11

A party may not discover documents or tangible things prepared in anticipation of litigation or for trial by or for another party or its representatives. Disclosure of mental impressions, such as legal theories or strategy, are always protected.

A court may order discovery of other materials if the party shows it has a substantial need for the materials and cannot, without undue hardship, obtain them by other means.

Expert Consultation product requires exceptional circumstances making it impracticable for a party to obtains facts or opinion on the same subject by other means.

Question 12

Erie Doctrine

Answer 12

In a diversity action, the federal courts are required to apply the substantive law of the state in which the district court is located and federal procedural laws. When it is unknown whether a law is substantive or procedural, the court will first check if there is a conflict between the laws, if there is not then it apply either. If the state law would change the outcome of the case, it is substantive and must be used. If the state law would not change the outcome of the case, federal law applies.

Conflict of law rules, laws governing preclusion, laws altering the calculation of damages, laws governing a statute of limitations, and laws governing evidentiary privileges are considered substantive law for the purposes of Erie.

Question 13

Claim Preclusion (Res Judicata)

Answer 13

The doctrine of claim preclusion provides that a final judgment on the merits of an action precludes a party from successive litigation of an identical claim in a subsequent action. Its application requires (1) there was a valid final judgment on the merits, (2) the original and subsequent claims are sufficiently identical, and (3) the claimant and the defendant are the same and in identical roles.

Question 14

Res Judicata: Final Judgment on the Merits

Answer 14

Under federal law, the judgment in the prior action must be valid, in that the court had personal and subject matter jurisdiction and the defendant had notice and opportunity to be heard. A judgment is final if there is nothing further for the court to do but order entry of judgment.

Under California law, a judgment is not final until the conclusion of the appeal or when the time for filing an appeal expires.

Question 15

Res Judicata: Sufficiently Identical Claims

Answer 15

Federal law follows a transaction approach, looking at whether the claims arise out of the same transaction or occurrence. However, California applies the primary rights doctrine, looking at whether the claim arise out of the same injury.

Question 16

Issue Preclusion (Collateral Estoppel)

Answer 16

Collateral estoppel precludes re-litigation of issues of fact or law that have already been necessarily determined in an early adjudication. It requires (1) the issues sought to be precluded must be the same as the involved in the prior action, (2) the issue must have been actually litigated in the prior action, (3) the issue must have been determined by a valid and binding final judgment, (4) the determination of the issues was essential to the prior judgment, (5) the party against whom issue preclusion is asserted must have been the party in the original lawsuit.

Question 18

Joinder of Claims: One P, One D

Answer 18

FRCP allows a single plaintiff to join all claims against a single defendant so long as the court has subject matter jurisdiction over each claim.

Question 19

Well-Pleaded Complaint

Answer 19

A claim for relief can be dismissed if it fails to sufficiently state a claim upon which relief can be granted. There is a two step analysis. First, the court must identify and reject legal conclusions unsupported by facts. Second, the court should assume the truth or veracity of well-pleaded factual allegations and determine whether the allegation plausibly give rise to an entitlement of relief.

Question 20

Notice Pleading

Answer 20

Federal courts require notice pleading, which means the pleading must put the opposing party on notice of the claim by pleading facts supporting a plausible claim. A complaint must contain a statement of subject matter jurisdiction, statement of the claim, and a demand for relief. If the cause of action is for fraud, mistake, or special damages, then it must be pleaded with particularity or specificity.

Question 21

Subject Matter Jurisdiction

Answer 21

Subject matter jurisdiction is the federal court’s power to hear a particular case. Subject matter jurisdiction can be based on federal question jurisdiction or diversity jurisdiction.

Question 22

Diversity Jurisdiction

Answer 22

Diversity jurisdiction requires a showing of complete diversity and an amount in controversy greater than $75,000. Complete diversity means all plaintiffs are citizens of states different than all defendants.

AiC can be satisfied through aggregation.

Question 23

Supplemental Jurisdiction

Answer 23

Supplemental jurisdiction allows federal courts to exercise jurisdiction over additional claims that do not meet the requirements of federal question and diversity jurisdiction by themselves. The additional claims must arise from a common nucleus of operative fact as an original claim the court has SMJ over.

Common nucleus of operative fact = same transaction or occurrence

Question 24

Seventh Amendment Right to A Civil Jury Trial

Answer 24

In federal court, the right to jury trial is governed by the Seventh Amendment. The preserves the right to a jury trial in federal courts in all suits of common law where the amount exceeds $20. The right to a jury trial generally extends to legal issues, not equitable issues.

If a case involves both legal and equitable issues, then the jury normally determines the legal claims first, and the court determines the equitable claims second.

Demand for a jury trial must be made in writing and filed with the court within 14 days after service of the last pleading direct to the issues sought to be tried by jury.

Question 25

Service of Process: Personal Delivery

Answer 25

CCP or FRCP allow for service of process by personal delivery by nonparties who are at least 18 years of age.

Question 26

Substituted Service of Process: Mail

Answer 26

California allow substitute service of process by mail if personal service cannot be made, but it must be mailed by first-class mail, postage prepaid, and requiring a return receipt if outside of California but inside the U.S.

If service of process is being made to a party outside the U.S., then service of process can be made using any method the forum court prescribes or by any method allowed for under the law of the place where the person is served that would give the party actual notice.

Question 27

Personal Jurisdiction: In Personam Jurisdiction

Answer 27

Personal jurisdiction refers to the court’s ability to exercise power over a particular party or property. In personam jurisdiction is the power the court has over and individual party. There are four bases for in personam jurisdiction, the three traditional bases and long arm statutes.

Question 28

Personal Jurisdiction: In Personam Jurisdiction: Traditional Basis

Answer 28

The traditional bases for in personam jurisdiction include when (1) a defendant consents to the court’s jurisdiction, (2) when a defendant is domiciled in the forum state, and (3) when a defendant is properly served while voluntarily present in the forum state.

Question 29

Personal Jurisdiction: In Personam Jurisdiction: No Traditional Basis

Answer 29

Without a traditional base for personal jurisdiction, the court’s jurisdiction is authorized by a state long-arm statute, limited to what is permitted by the Due Process Clause.

The Due Process Clause requires the defendant have sufficient minimum contacts with the forum state, the exercise of jurisdiction relates to the defendant’s contacts, and that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.

Question 30

Personal Jurisdiction: In Personam Jurisdiction: Due Process Clause: Minimum Contacts

Answer 30

Minimum contacts requires a showing of purposeful availment and foreseeability.

The defendant must have purposefully availed himself of the privileges of conducting activities in the forum state, invoking the benefits and protections of its laws.

The defendant must also know or reasonably anticipate that his activities in the forums state render it foreseeable they will be brought to court there.

Question 31

Personal Jurisdiction: In Personam Jurisdiction: Due Process Clause: Relatedness

Answer 31

The exercise of jurisdiction must be related to the defendant’s contacts.

Specific jurisdiction may be found when a cause of action arise out of, or closely relates to, a defendant’s contacts.

General jurisdiction exists if the defendant had systematic and continuous activity in the forum state such that the defendant is at home there.

Question 32

Personal Jurisdiction: In Personam Jurisdiction: Due Process Clause: Fair Play and Substantial Justice

Answer 32

Even when minimum contacts is established, a court must determine that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.

Courts consider factors, including: (1) the interest of the forum state in adjudicating the matter, (2) the burden on the defendant, (3) the interest of the judicial system in efficient resolution of controversies, and (4) the shared interests of the states in promoting common social policies.

Question 33

Venue: California

Answer 33

In California, venue is proper where any defendant resides at the time the action commences or where personal injury occurred. In an action against a corporation, venue is proper in the county where the obligation or liability arose or where the corporation has its principal place of business.

Question 34

Removal

Answer 34

A case may be removed from state court to federal court if (1) the case could have been brought in federal court, (2) all of the defendants agree to removal, and (3) a notice of removal is filed within 30 days of service of the document that first makes the case removable.

A case could have been originally brought in federal court if the court would have had subject matter jurisdiction.

Question 35

Subject Matter Jurisdiction: Diversity Jurisdiction: Foreign Parties

Answer 35

There is no diversity of citizenship when any plaintiff and any defendant are noncitizens of the U.S., in that they are both citizens of foreign countries.

Question 36

Removal: Exception: In-State Defendant Rule

Answer 36

Even if every element for removal jurisdiction was satisfied, a case cannot be removed to federal court if any defendant is domiciled in the forum state.