Civil Procedure (California) Flashcards
1
Q
What are two key types of jurisdiction?
A
Personal jurisdiction and subject matter jurisdiction
2
Q
How do you satisfy personal jurisdiction? What are the key elements
A
You must satisfy both California statute and the constitution. The California statute reaches the constitutional limits.
Key elements:
- purposeful availment
- foreseeability
- Relatedness
- Fairness
3
Q
PJ - Does an interactive website constitute purposeful availment?
A
Yes. But a passive website probably doesn’t.
4
Q
What is the main court in California?
A
The Superior Court
5
Q
What are the three classifications for courts in the Superior Court?
A
- Limited Civil Cases: $25k or less
- Unlimited Civil Cases: More than $25k
- Small Claims: Individual P, 10K and less; Business P, $5k or less
6
Q
What kind of jurisdiction does the Superior Court have?
A
General jurisdiction. It can hear most any case, other than certain federal cases arising in bankruptcy, securities laws, patent, etc.
7
Q
How do you determine the amount in controversy for purposes of classifying a case?
A
Consider the claims alone, and not costs.
8
Q
Can cases be reclassified if the amount in controversy was incorrectly determined?
A
Yes, and the applicable court will not lose SMJ. The case will just be reclassified (i) automatically by the clerk of court if the amount in controversy changes or (ii) on moion of any party.
9
Q
Is court permitted to look beyond the pleadings to classify a case?
A
Yes, and the court must consider any judicial arbitration award that applies.
10
Q
Does the number of claims have an effect on how a case is classified?
A
No, the entire case is either limited or unlimited.
11
Q
Venue: What is a local action?
A
A case relating to land: its recovery, determination of an interest, or recovery for an injury to land.
12
Q
Venue: What is the appropriate venue for a local action?
A
County where the land lies
13
Q
Venue: What is a transitory action?
A
An action that is NOT a local action
14
Q
Venue: What is the appropriate venue for a transitory action?
A
Any county where any defendant resides when the case is filed
15
Q
Venue: What is the appropriate venue for a contract action?
A
Any county where the contract was entered into or was to be performed.
16
Q
Venue: What is the appropriate venue for a personal injury / wrongful death action?
A
Any county where the injury occured
17
Q
Venue: What is the appropriate venue for a action where the D is a corporation?
A
Any county where the corporation:
- has its principal place of business
- entered into or is to perform a contract
- where the breach occurred or liability arises
18
Q
Venue: What is the appropriate venue for a action where the D is an unincorporated business entity?
A
Any county:
- where the business has its PPB as filed with the state
- where any member/partner resides
19
Q
Venue: What is the appropriate venue where all Ds are non-residents?
A
Plaintiff may select any county
20
Q
Venue: What is the appropriate venue where there are multiple Ds, and at least one CA resident?
A
Venue must be proper with respect to the CA resident
21
Q
Venue: What is the appropriate venue when the case involves multiple claims?
A
The venue associated with the main relief sought.
22
Q
Venue: How is a case transferred?
A
If original venue was IMPROPER, D may move to transfer to proper venue in his Answer, Demurrer, or Motion to strike.
If original venue was PROPER, court may grant a motion to transfer if (i) reason to believe can’t have impartial trial, (ii) convenience of witnesses and promotes justice, (iii) no judge is qualified to act. Parties may agree on new venue, or judge will select if they cannot
23
Q
Venue: When is defendant required to move for a transfer of venue?
A
With or before his Answer, Demurrer, or Motion to Strike
24
Q
Venue: is a forum selection clause enforceable?
A
Yes, unless they identify a forum that is not permitted under the general rules
25
Venue: What is the rule of Inconvenient Forum?
By California statute, the court may dismiss or stay an action if it concludes that an action should be heard outside of California for the interests of substantial justice.
Like in federal rules, this is where the action should be heard in different legal forum - and CA doesn't have the authority to transfer it there
26
What is necessary for proper process?
Summons and a copy of the complaint
27
Who may serve process?
Any NON-party that is at least 18
28
What are the five methods of serving process?
1. Personal
2. Substituted Service
3. Mail
4. Business Delivery
5. Service by publication - last resort
29
What are the requirements for substituted service?
Must be made:
- at D's usual abode
- left with a competent member of the house who is at least 18
- person must be informed of the contents
- process must also be mailed to the D
30
When is substituted service effective?
10th day after required mailing
31
What is required for service by mail?
- Copy of summons and complaint
- Two copies of acknowledgment
- Self-addressed stamped envelope
32
What is the timeline for service by mail?
- D has 20 days to return the form
| - It is deemed complete when the De executes the acknowledgement/waiver
33
What is required for service by publication?
-Affidavit from P's lawyer showing that D cannot be served after reasonably diligent attempts to serve in another way
34
How can you serve process outside of California?
- Any methods permitted instate
| - By mail, with prepaid postage - deemed effective on the 10th day after mailing
35
How can you serve process outside of the US?
Same as federal
36
Are you immune from service of process if you are witness in another case?
No, you are subject to service for civil cases in state courts.
But you are immune from service with respect to federal actions
37
What is the rule regarding frivolous litigation?
There is a rule that mirrors Federal Rule 11, whereby attorney must certify that to her knowledge after reasonable inquiry, complaint:
- not for an improper purpose
- legal contentions are warranted by law
- factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation)
38
What are remedies for violation of frivolous litigation?
- Sanctions can be levied against the party, the attorney or the firm.
- California statute permits court to order a party, an attorney or both to pay the other party's fees and expenses resulting from the frivolous actions
39
What is the difference between Federal Rule and CA rule for curing violations with respect to frivolous litigation?
California's 21-day safe harbor period to cure is broader than federal. It includes motions brought by a party and also when issue is raised by the court sua sponte
40
What is frivolous?
Something raised completely without merit or for the sole purpose of harassing an opposing party.
41
What is required in the Complaint?
(1) Demand for judgment for the relief sought
(2) California follows fact pleading. There must be a statement of the "ultimate facts" constituting a cause of action, in ordinary and concise language. These must be included on EACH ELEMENT for EACH CAUSE of action.
42
What is the special rule for Complaints in personal injury and wrongful death actions?
Plaintiff cannot state a damages figure
43
What is the special rule for Complaints re: punitive damages?
Plaintiff can never state the amount of punitive damages.
44
What does defendant do when Complaint is not permitted to show certain damages figures? What is P's required timing in response?
D must request a statement of damages. P must provide it within 15 days.
45
What is the pleading standard for claims involving fraud?
There is a heightened pleading standard that requires plaintiff to allege with more specificity.
46
What is plaintiff required to do in a "Doe" pleading?
- name defendant as a "Doe"
- allege that she does not know Doe's true identity
- state a cause of
47
What is special about verified pleadings?
They can be treated as evidence for purposes of summary judgment. Because they are signed under oath.
48
What is timing for Defendant's response to the Complaint?
Within 30 days of service of process. (Federal is 21)
49
What is an appropriate response to a complaint?
- Answer
- General Demurrer
- Special Demurrer (rare)
50
What is main use of a general demurrer?
- Asserting that there is a failure to state facts sufficient to constitute a cause of action.
- Can be used to assert other defenses as well
51
What are the special rules, and timing requirements, for demurrers?
- Parties must meet and confer at least 5 days before filing any demurrer to try to avoid filing it.
- If cannot meet in that timeframe, D gets a 30 day extension in which to answer or demur. But D must file and serve a declaration under oath that the parties made a good faith effort to meet, and state the reasons why they couldn't.
- Demurrer must be filed within the 30 day window, except as extended per above
52
What is required if parties meet and confer, but defendant files a demurrer anyway?
Declaration under oath that the parties met, but could not resolve the issues.
53
What is the purpose of a Motion to Quash Service of Summons?
- Lack of pJ
- Improver service
- Improver service of process
54
What kind of appearance is a Motion to Quash Service of Summons? What is the consequence of that?
Special Appearance. You do not waive defenses of lack of PJ, improper service, or improper service of process.
Answers, demurrers, motions to strike, motions to transfer venue, and motions to reclassify a case are all GENERAL appearances.
55
When must you file Motion to Quash Service of Process?
Before or with demurrer, answer, or motion to strike.
56
What may the defendant do if the court denies his Motion to Quash Service of Process?
Defendant must plead within 15 days by filing an Answer or a Demurrer
57
When must you raise a Motion to Dismiss or Stay for Inconvenient Forum?
You must raise it before or with a Demurrer or Motion to Strike - or it is waived.
In contrast, filing an Answer does not cause you to waive this motion.
58
What is Motion to Strike?
Same as federal and can be used to strike all or any part of a pleading.
59
What is an Anti-SLAPP Motion to Strike? When is it used?
SLAPP issues arise where the defendant was sued in order to suppress their exercise of free expression. In that case, the defendant can file an Anti-SLAPP Motion to Strike, which creates a different burden.
Cannot be used if suit is solely in the public interest or on behalf of the general public.
60
What is the standard for an Anti-SLAPP Motion to Strike?
Burden shifts to plaintiff to show the probability of winning on the merits.
61
What is an Answer?
Same as in federal court. D must confirm or deny each and every allegation in the complaint.
62
What facts must defendant plead in stating his affirmative defenses?
D must state the "ultimate facts" with respect to each element of each claim.
63
What must the defendant do if the Plaintiff files a verified complaint?
D must file a verified answer.
64
When must D file demurrer, answer, or motions discussed above?
No later than 30 days after service of process is deemed complete.
65
What is a claim by the defendant against any other party called?
Cross complaint
66
What is the deadline for filing a cross-complaint against the Plaintiff?
Before or at the same time as the answer.
67
Are there compulsory cross-complaints?
Yes, compulsory if arising out of the same transaction or occurrence as the P's claim.
68
What is required for a cross-complaint against a co-defendant?
It must arise out of the same transaction or occurrence. Never compulsory.
69
When is the deadline for filing a cross-complaint?
30 days from when service of process is deemed effective.
70
What are the two ways that a party can amend his pleadings?
What will court consider in second way?
1. OF RIGHT: P may do this if it's (i) before the defendant files an Answer or Demurrer or (ii) after the Demurrer is filed and before a hearing is held with respect to the Demurrer. But Plaintiff must file the amended complaint no later than the date by which the Demurrer is due to be filed.
2. WITH LEAVE. Any party can seek leave to amend at any time, and the federal rules apply. The court will consider whether an amendment would cause Delay, Prejudice, or whether it would be futile to amend.
71
If court sustains a demurrer or answer, what flexibility will they often give Plaintiff?
Leave to amend, which allows P to try again. Courts typically limit this to three tries.
72
Can plaintiff in a Doe case amend a pleading after the statute of limitations has run in order to name the party?
Yes, under the doctrine of "relation back". But only if:
- original complaint was filed before SOL ran and charged the fictiious Ds
- P was genuinely ignorant of the Doe defenant's identity
- P pleaded that ignorance in the original complaint
- True D is substituted within three years of original filing
73
What is the timeline for a court order for discovery?
- within 10 days after D was served within process
| - within 20 days, if it is a deposition
74
Any limit on number of depositions?
No, unlike federal court.
75
Any presumption on length of a deposition?
Yes, one day of seven hours
76
What is D's responsibility if deposition asks him to produce electronically stored information that is password protected?
He must provide direct access or a translation of the ESI.
77
What is a form interrogatory? Why use one?
There is a form approved by the Judicial Council. There is no limit to the number of form interrogatories you can serve.
78
What is maximum number of bespoke interrogatories in an Unlimited Civil Case?
35. You can only serve more if yo produce a declaration explaining why they are necessary. Opposing party may seek a protective order limiting the number
79
Who can you serve with a Request to Produce?
ONLY Parties. Federal rule allows you to serve BOTH parties and non-parties.
80
Any limit on Requests to Produce?
No
81
What can a party do if they can't serve a Request to Produce on a non-party?
- Take their deposition
| - Serve them with a Subpoena Duces Tecum, which requires them to bring materials to the deposition
82
Can you take a medical exam of the opposing party?
Yes, with a court order. Person's lawyer may attend.
83
What is the consequence of D demanding a physical exam in a personal injury case?
Defendant has a right to demand ONE physical exam in a personal injury case.
84
How many Requests for Admission are permitted? How about appropriate parties and timing requirements?
- 35
- Only Parties
- Must respond within 30 days of service
- Failure to admit or deny will be treated as an admission.
- NO LIMIT for admission that a document is genuine
85
What are the discovery limitations in a Limited Civil Case?
- 1 deposition / party
| - TOTAL of 35 interrogatories, inspection demand, and requests for admission PER PARTY
86
Is there an obligation to supplement discovery, like in federal court?
- No, so each party must request that discovery be updated.
- Can only request supplements twice before trial date is set, and once afterwards
87
What can you discover?
Anything relevant to the subject involved in the action - broader than what is admissible.
88
What do you do if you believe discovery would intrude on privileged material?
Object with particularity, or risk waiving the protection.
89
What is the effect of California's right to privacy?
It can be used to limit discovery - but it is not an absolute right. Courts will balance the party's need for privacy against the court's need for the information.
90
Who can generate privileged work product?
Unlike federal rules, ONLY the lawyer can generate privileged work product.
91
What rights do the parties have with respect to the other's expert witnesses?
Any party may request an exchange of expert witness info. The parties then exchange the list of experts to be called at trial, declare the nature and substance of their testimony, and the expert's qualifications. Failure to comply may cause the court to exclude the expert's testimony.
92
Who may the court sanction for a violation of discovery rules?
Anyone - parties and attorneys - that misuse the process. A party to be sanctioned must be given notice and a chance to be heard.
93
What does a party do if they believe the opposing party is misusing discovery?
- Move for sanctions, and specify the problems with particularity.
- Seek a protective order to protect against unwarranted, annoying, embarrassing, burdensome or expensive discovery - same as federal.
94
Joinder - Any difference on rules re: proper Ps and Ds?
No, same as federal
95
Joinder-Who are necessary and indispensable parties?
Same as in federal
96
Joinder- What is impleader in CA?
Asserted through Cross-Complaint
97
Joinder-Any difference in rules on intervenors?
No, same as federal
98
Who is an interpleader?
A party that is in possession of property that several people want. Rather than get sued by all those people, he sues them so that the court will determine who is entitled to the property.
99
What are the two primary, and three subsidiary requirements for a class action?
1. Ascertainable class
2. Well defined community of interest
a. Do common questions predominate?
b. Is the representative adequate?
c. Will the class result in substantial benefit to the parties and the court?
100
How is notice given to class members? Who bears the cost?
May be given by publication. Court decides who bears the cost -- representative, the defendant, or both.
101
What is the court entitled to approve in a class action?
- A settlement
| - Not the class counsel
102
How is amount in controversy determined in a class action?
Aggregate the claims of all class members
103
What four factors must you show to get a preliminary injunction?
Same as federal.
1. Likely to suffer irreparable harm
2. Likely to win on the merits of the underlying case
3. Favored by the balance of hardships
4. Injunction is in the public interest
104
How does party get a temporary restraining order? How long is it effective?
Same as federal.
- Must state its terms specifically, describe in detail what the D must do or refrain from doing
- Must state why the specified injury would cause irreparable harm.
- It is effective for no more than 14 days (or less if determined by the court), and it can be extended by the Court for another 14 days. Any further extension causes the TRO to become a Preliminary Injunction.
105
Can a plaintiff move for voluntary dismissal? When?
Yes, anytime before the starts. Court has discretion as to whether to approve.
106
Involuntary Dismissal - When does court have discretion?
In CA, court may dismiss the case if it hasn't been brought to trial within two years of filing.
107
When is dismissal mandatory in California?
If case hasn't been brought to trial within five years of filing, or process hasn't been served within three years of filing.
108
When does default occur?
When D fails to respond to Complaint within 30 days of effective service of process?
-D must be given notice of the application for entry of default judgment.
109
What five factors are required for clerk of court to enter an order of default judgment?
1. D didn't make ANY response
2. Claim is on a contract or judgment
3. Claim is for sum certain amount of money.
4. D was NOT served by publication
5. Plaintiff provides affidavit with relevant facts.
110
When does court enter order of default judgment?
If plaintiff cannot satisfy the requirments for an entry by the clerk of court, there is a hearing where the court can determine whether to enter it.
111
What are D's options in the event of a default or default judgment?
D may move to set them aside, or for leave to defend the case based on mistake, inadvertence, surprise, or excusable neglect because service of process didn't result in actual notice.
112
In what document does defendant move for Failure to Plead Facts Constituting a Cause of Action?
In the General Demurrer, rather than motion.
113
What is the standard for summary judgment?
Same as federal. Moving party must show that there is no dispute as to material fact.
114
Given that constitution doesn't apply to California, who decides law/equity?
Same construct as federal law, where jury decides facts and judge decides matters at equity. However, CA flips procedure: judge decides matters at equity first, and then jury hears facts.
115
What are jury rights with respect to incidental damages in an equity cause of action?
No right to jury
116
How does party get a jury?
Demand it orally or in writing before case is set for trial, or within five days AFTER notice of the setting of trial. Failure to demand constitutes a waiver.
117
What is the number of jury members in a civil case? How many required for a verdict?
12 in a civil case, unless parties agree otherwise. 75% of the jurors.
118
How many challenges can a party raise during voir dire?
- unlimited challenges for cause
- maximum of six peremptory challenges
- cannot raise peremptory challenge based on race, color, religion, sex, national origin, sexual orientation, or similar grounds - BROADER THAN FEDERAL
119
What is a Motion for Directed Verdict? When can you raise it?
Means that reasonable people could not differ as to the result. Same standard as Motions for Judgment as Matter of Law (JMOL) under federal rules.
-Party can make this motion after the other side has been heard at trial.
120
When can you make a motion for a new trial?
When you believe that damages shock the conscience as too low or too high. In contrast to federal court, you can use both remittur and additur to avoid a new trial caused by a problem with damages.
121
What must a party show when it moves to set aside judgment? When?
Party must show mistake, inadvertence, surprise, or excusable neglect.
Motion must be made within a reasonable time, never to exceed six months.
122
When does the court HAVE to set aside a judgment?
When a party's application includes an affidavit from the lawyer attesting to his own mistake, inadvertence or neglect?
123
Are any cases subject to an expedited jury trial?
Yes, most Limited Civil Cases. They include only eight jurors and require only 6 to reach verdict.
Only five hours for each side to complete voir dire and present case.
124
In an Unlimited Civil Case, where do you appeal?
To the Court of Appeal to which the court is assigned.
125
In a Limited Civil Case and Small Claims Case, where do you appeal?
The appellate department of the Superior Court.
126
When do yo appeal?
1. 60 days after mailing or service of process of the notice of entry of judgment OR
2. 180 days after entry of judgment if no notice is served
127
What is the Final Judgment Rule?
Like federal rules, CA only permits appeal if there has been a final judgment on the merits of the claim.
Unlike federal rules, if court enters summary judgment with respect to one party's cause of action - that is treated as a final judgment with repsect to that party.
128
How does a party use an extraordinary writ?
A party seeks an extraordinary writ in order to seek appellate review for denial of a motion to quash. It's the only way to get that appellate review.
129
What must a party prove when seeking an extraordinary writ?
1. Irreparable harm
2. normal route of appeal is inadequate
3. A beneficial interest in the outcome of the writ proceeding
130
Are there differences in the CA rules of preclusion?
1. The judgment is entitled to preclusive effect
2. Any judgment is on the merits if it is based on jurisdiction, venue, indispensable parties or STATUTE OF LIMITATIONS
3. In Res Judicata, CA provides a separate cause of action with respect to personal injury and property damages - even if the arise from the same T/O
