Notice and Choice of Law

Question 1

Notice

Answer 1

A defendant must be properly notified of a pending action by a reasonable method and must be given an opportunity to be heard.

Question 2

Service of process

Answer 2

Service of process means to provide a defendant with notice of a pending action by delivery to defendant of a summons (formal court notice of suit and time for response) and a copy of the complaint.

Question 3

Methods of Service

Answer 3

1. Personal Service (PS)
2. Substituted Service (SS)
3. Constructive Service

Question 4

Personal service

Answer 4

Personal service is always adequate and occurs when the notice is personally delivered to a defendant.

Question 5

Substituted service is usually adequate-Federal court

Answer 5

Service of process can be left at defendant’s usual abode and served upon someone of suitable age and discretion who resides there; or served to defendant’s authorized agent; or served by methods permitted by state law.

Question 6

Substituted service is usually adequate-California

Answer 6

Only allows substituted service if personal service cannot be accomplished with reasonable diligence. The service of process must be left at defendant's usual abode with a competent member of the household who is at least 18 years old, and that person must be informed of the contents. The process must also be mailed to defendant by first class mail. 
California corporation: Service of process may be made on defendant's agent or one apparently in charge at the office during usual office hours.

Question 7

Constructive service

Answer 7

Defendants can technically be served by registered mail, however this is only effective if the defendant agrees to waive service of process. California allows service by publication only if nothing else works. Plaintiff’s attorney must provide an affidavit that defendant cannot be served after reasonable diligence.

Question 8

Erie doctrine (Choice of law in diversity actions)

Answer 8

A federal court sitting in diversity must apply state substantive law and federal procedural law. The goal is to prevent forum shopping. If it is unclear whether a law is substantive or procedural, then the judge will employ a general balancing test:
Balance of interests: The federal interest in having the federal law applied is balanced against the state interest in having the state law applied.

Question 9

California conflicts of laws rule (Choice of law in diversity actions)

Answer 9

California conflicts of laws rule: The following rules determine the appropriate substantive law for a federal court sitting in diversity to apply.

a. Tort actions: Where two state laws are in conflict, the court evaluates the comparative impairment to each state’s interest in having its own law applied.
b. Contract actions depend on whether there is a choice of law provision in the contract.
1. Contracts without a choice of law provision: The court evaluates the comparative impairment to each state’s interest in having its own law applied.
2. Contracts with a choice of law provision
a. No conflict: The provision will be applied so long as it has a reasonable basis and does not conflict with California policies.
b. Conflict: If the provision does conflict with California policies, the California law will apply if California has a materially greater interest in having its law applied than does the other state.