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Civil Procedure CA Flashcards

1
Q

25 ca

  1. .. CA requirements for substituted service (4):
  2. When is such substituted service deemed effective:
  3. So how does the “effective” date square w/#2 of 1 above:
A
  1. D at usual ABODE or MAILING address
  2. Must be led w/ competent member @ least 18 and resides (federal can be “suitable age”)
  3. Person must be informed of CONTENTS
  4. Process needs to be MAILED
  5. 10 days after mailing
  6. still effective after 10 days even if #2 happens (left 18 or older at abode)
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2
Q

27 ca

  1. Service by Mail:(3)
  2. ..How many days does D have to return form:
  3. ..When is service deemed complete:
A
  1. copy of summons and complaint
  2. 2 copies of acknowledgment (waiver form)
  3. self addressed stamped envelop back to P
  4. 20 days (FED 30 days)
  5. When D executes waiver form (FED when filed w/ ct.)
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3
Q

28 ca

Service by publication: (2)

A
  1. Affidavit by P’s attorney D cannot be served, after due diligence.
  2. Publish in newspaper D most likely to see.
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4
Q

31 ca

CA has similar Rule 11 statute, stating every lawyer/pro se certifies legal action (3) _____and sanctions can be ordered(3)_______.

But, what is the difference Rule 11 and CA:

A
  1. not IMPROPER purpose
  2. legal action warranted by law
  3. factual contentions have support
  4. party 2. lawyer 3. law firm

Safe Harbor Rule (21 days to fix) applies to matters brought by ct and opposing party (Fed. opposing party only)

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5
Q

37 ca

  1. In personal injury, wrongful death or P seeking punitive damages, what must P do before taking a default judgement:
  2. So what are all the causes of action when P does not state amount of damages but if asked must provide SOD (3)
A
  1. Must serve SOD (statement of damages) on D
  2. person injury
  3. wrongful death
  4. punitive damages sought (relief sought)
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6
Q

41 ca

  1. ..After D is served how long till must they respond:
  2. ..F. ct. vs CA for choices to respond:
A
  1. 30days (F. 21 days)

F. ct. - a. motion b. answer

CA - 
a. general demurer 
b. special demurer
c. motion  to quash summons 
d. motion to dismiss or stay inconvenient forum 
e. motion to strike/SLAPP
g . answer
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7
Q
  1. ca
  2. General Demurer:
  3. What F. response is 1 like:
  4. What does the P normally do if CA ct. sustains General Demurer:
A
  1. objection to complaint which states P failed to state facts sufficient to contribute to a cause of action
  2. Federal Motion to Dismiss for failure to state a claim
  3. P will try again
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8
Q

46 ca

  1. Special Demurer:
  2. If the complaint is uncertain, ambiguous or intelligible D may file Special Demurer equivalant in F ct._____
A
  1. used to assert other / minor defenses

2. motion for more definite statement

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9
Q

47 ca

What types / examples of defenses may you see in Special Demurer:

A
  1. complaint unclear
  2. lack of legal capacity
  3. existence of another case between parties
  4. defect or misjoinder
  5. failure to plead written or oral K
    6 failure to file “certificate of merit”
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10
Q

49 ca

  1. Can the defenses (special demurer) be raised in the answer instead:
  2. What is the exception to above:
  3. What if these defenses are not raised in Demurer or Answer:
  4. When must failure to file a “certificate of merit” be filed:(2)
A
  1. yes
  2. Certificate of Merit
  3. They are Waived!
  4. Special Demurer or,
  5. Motion to Strike,

Never in the Answer

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11
Q

50 ca

  1. Is Special Demurer considered a pleading:
  2. What type of cases are Special Demurers NOT allowed:
  3. Motions are ____or _____ by ct.
    Demurers are____or____ by ct.
A
  1. yes
  2. In Limited Cases (25k or less)
  3. granted or denied
    sustained or overuled
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12
Q

52 ca

  1. When MUST a Motion to quash service of summons be made: (4)
A
  1. In Special Appearance or Before or With
  2. Demurer
  3. Answer
  4. Motion to Strike
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13
Q

55 ca

Motion to dismiss or stay for inconvenient forum / forum non convince.

Made:
Waived:

A
  1. Made before or after Answer

2. If after Demurer or Motion to Strike

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14
Q

56 ca

  1. Motion to Strike: (3)
  2. P files malpractice suit against (engineer, architect, land surveyor) w/out “certificate of merit” D can attack complaint:
  3. What 2 points are often brought up in Motion to Strike:
A

Party files motion to strike and court strikes b/c:

  1. irrelevant
  2. false
  3. improper
  4. Demurer or Motion to Strike
  5. failure to “certificate of merit”
  6. anti SLAPP
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15
Q

58 ca

  1. If D brings Anti-SLAPP motion and shows P cause of action arise from protective activity then what happens:
  2. Many Anti-SLAPP motions were filed so what happened:
A
  1. The burden shifts to the P to show probably of wining on the merits.
  2. legislature limited availability of motion and D can NOT make motion if P is enforcing a public interest.
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16
Q

63 ca

  1. Fed ct D can counterclaim, crossclaim and implead. CA D can do the same but all claims are called:
A

Cross Complaints

17
Q

68 ca

  1. Relation back:
  2. Relation Back and Fictitious D ok if: (3)
A
  1. Allows P to amend after statute of limitations has run
  2. ORIGINAL complaint filed before SOL run and contained charges against fictitious D
  3. P was genuinely IGNORANT of fictitious D
  4. P pleaded ingnorance in original complaint and substitutes true D w/ in 3 YEARS.
18
Q

74 ca

  1. If a party wants to request to produce (inspection demand) to a Non-Party what must they do:
    A. F.
    B. CA
  2. What is exception for B. CA:
A

A) send request w/ subpoena

B) Notice party for deposition w/a subpoena duces tecum

  1. Businesss records yo can just get subpoena
19
Q

90 ca

Class Action CA Requirements: (2)

A

Vastly Different than F Ct.

  1. Ascertainable class
  2. Well defined community of interests
20
Q

91 ca (class action)

Well defined community of interests: (3)

A
  1. common questions predominate
  2. representative is adequate
  3. class results in substantive benefit to parties and court
21
Q

96 ca

  1. Voluntary Dismissal:
  2. Voluntary Dismissal w/ or w/out prejudice:
  3. What happens if Voluntary Dismissal is made after trial starts:
  4. Exceptions to 3: (2)
A
  1. P can move to dismiss ANYTIME prior to trial starting
  2. Court decides
  3. Granted only w/ prejudice
  4. parties stipulate
  5. ct finds good cause
22
Q

97 ca

  1. Involuntary Dismissal:
  2. CA ct has discretion to dismiss if: (2)
  3. CA ct has to dismiss if: (2)
A
  1. All courts can dismiss for failure to prosecute, failure to abide ct rules and various other reasons
  2. Case has not been brought to trial w/ in 2 years
  3. D not Served w/in 2 years
  4. Case has not been brought to trial w/ in 5 years
  5. D has not been served w/in 3 years
23
Q

100 ca

  1. What must D get before an entry of Default Judgement can be made:
  2. When can clerk enter Default Judgement w/out judges involvement: (5)
  3. What must P do if ALL 5 are not true above:
A
  1. Notice
  2. D made NO response
  3. claim is on K or judgement
  4. claim SPECIFIC sum of money
  5. D not served by PUBLICATION
  6. P provides AFFIDAVIT w/ relevant
  7. Must go to a ct. for a hearing
24
Q

104 ca

  1. CA motion for summary judgement standard:
  2. What must party show: (2)
  3. In general CA SMJ are a lot of work see card (103A)
A
  1. Ct. looks at evidence most favorable to non-moving party
  2. No dispute as to facts
  3. Entitled to judgement as a matter of law
  4. lot of work
25
Q

111 ca

  1. How many challenges for cause
  2. How many preemptory challenges:
    CA:
    F.
  3. Preemptory challenges may not be based on:
    CA:
    F.
A
  1. unlimited

CA: 6
F: 3

CA: race, gender, religion, sexual orientation
F: race and gender

26
Q

114 ca

  1. Motion for Judgement notwithstanding the Verdict (JNOV):
  2. What is this called in F. ct.
  3. Timing
A
  1. court says jury reached a conclusion reasonable people could not have reached
  2. Renewed Motion for Judgement as a matter of law
  3. Before entry of judgement or earlier of
    1. 15 days after mailing of serve of Notice of Judgement
    2. 180 days after entry of judgement
      • usually number 1
27
Q

117 ca

  1. Motion For New Trial granted if:
  2. Timing;
  3. What does the ct. look at if the ground for New Trial is excessive damages:
A
  1. ct. concludes there is some error that constitutes a “miscarriage of justice” and the party need to retry the case
  2. before entry of judgement or 15 days of mailing of service of final judgement or 180 after entry of final judgement
  3. damages figure “shocks the conscience”
28
Q

119 ca

  1. A party may motion to set aside judgement because of:
  2. Ct. must set aside judgement if:
  3. Can a party move to set aside judgement based on not getting Actual Notice:
  4. What is the timing for Motion to Set Aside judgement:
A
  1. mistake, inadvertence, surprise or excusable neglect
  2. lawyer files affidavit stating his own mistake, inadvertence, surprise or excusable neglect
  3. yes
  4. Reasonable time not to exceed 6 months
29
Q

120 ca

  1. where do you appeal from and to in CA
  2. Timing;
  3. Limited Civil cases appealed to;
A
  1. Superior ct. to a ct. of appeals to which the county is assigned
  2. 60 days after mailing “notice of entry” or if NO notice 180 days after entry of judgement
  3. Superior ct. Appellat Division
30
Q

121 ca

  1. Final Judgement Rule:
  2. P sues D-1 and D-2. Trial ct enters Summary Judgement if favor of D-2. Is this considered a final judgement:

F. ct:
CA:

A
  1. generally can’t appeal until the merits of the entire action are resolved

F.ct: NO -P case against D-1 precedes

CA: Yes -judgement as to one of several parties is considered a final judgment and can be appealed

31
Q

122 ca

  1. Interlocutory review: (7)
  2. What one out of 7 o look for on exam:
A

By statute the following are appealable:

  1. granting mtn quash summons
  2. granting dismissal or stay of case
  3. granting new trial
  4. denial of JNOV
  5. granting, dissolving or refusal to of injunction
  6. ordering a party/attn pay sanctions over 5k
  7. order denying certification of class action
  8. granting new trial because not a final judgement
32
Q

124 ca

Party seeking extraordinary writ must demonstrate: (3)

A
  1. will suffer IRREPARABLE harm if not issued
  2. normal route to appeal INADEQUATE
  3. party has BENEFICIAL interest in outcome of writ
33
Q

125 ca

  1. When is an extraordinary writ the only way to seek review of appellate ct:
  2. Why would above be a good test question
A
  1. denial of motion to quash service of summons
  2. b/c motion to quash service of summons (lack of pj, improper process, improper service of process) are defenses asserted at a Special Appearance.
34
Q

128 ca

  1. Case 1 judgement is entered in a CA ct. Case 2 is in F. ct.. What law does F. ct. use to decide preclusion issue:
  2. Suppose judgment in case 1 has been appealed (or still time to appeal) is that judgment entitled to Preclusion effect:
    F. ct_____ CA____
A
    1. CA law always use ct. system of case 1

F ct: yes

CA: no (appeal needs o finish)

35
Q

130 ca

  1. case 1 needed to end in a final judgement on _____for preclusion to be used.
  2. Unless ct. states otherwise when it enters any judgment it is not the merits. Unless judgment is for: (4)
  3. Any difference #2 F. ct. and CA ct:
A
  1. the merits
  2. jurisdiction
  3. venue
  4. indispensable party
  5. based on statute of limitations (CA ONLY)
  6. same except SOL is only CA

Civil Procedure (3 decks)

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