Civil Procedure 42-46

Question 1

In California courts, in a personal injury case, when can a defendant demand a physical examination of the plaintiff as a matter of right?

Answer 1

If:

The examination doesn’t include any diagnostic test or procedure that is painful, protracted, or intrusive; AND

The exam is conducted at a location within 75 miles of the examinee’s residence.

*For non-personal injury cases, a party must make a motion to compel to perform an exam. (Must be made in good faith and show the party’s health is in controversy).

Priority: Medium

Question 2

In Federal Court, the court MUST permit Intervention as of Right if the non-party can demonstrate what?

Answer 2

That:

The application to intervene is timely;

It has an interest in the subject matter of the action;

The protection of this interest would be impaired because of the action; AND

The non-party’s interest is not adequately represented by existing parties to the litigation.

Priority: N/A

Question 3

If Intervention as of Right is NOT warranted, a court MAY still allow Permissive Intervention when?

Answer 3

If the non-party:

Files a timely motion; AND

Either:

Has a claim or defense that shares a common question of law or fact with the main action; OR

Is given a conditional right to intervene by a federal statute.

*Courts will consider if the intervention will unduly delay or prejudice the adjudication of the original party’s rights.

Priority: N/A

Question 4

Class Actions

When can one or more members sue on behalf of an entire class?

Answer 4

The class is so numerous that joinder of all members is impracticable (numerosity);

There are questions of law or fact in common to the class (commonality);

The claims or defenses of the representative parties are typical of the claims/defenses of the class (typicality); AND

The representative parties will fairly and adequately protect the interests of the class (adequacy of representation).

Priority: N/A

Question 5

Class Actions

Once the class action requirements are met, the class will be certified when?

Answer 5

If:

Separate actions would create a risk of inconsistent adjudications or harm the interest of other members;

The party opposing the class has acted/refused to act on grounds that apply to the class and the grounds of relief would be appropriate to the class as a whole; OR

Common questions of law/fact to the class predominate over questions affecting individual members and a class action is superior to other methods of adjudication.

Priority: N/A