Pretrial Procedures

Question 1

Pleading

Answer 1

• Federal courts uses **notice pleading*, the goal is to provide the opposing party with reasonable notice of the nature and scope of the claims being asserted.
• California courts uses fact pleading, more specific than notice pleading. Parties must. plead ultimate facts to support each element of the cause of action.

Question 2

Pleading requirements (Rule 11)

Answer 2

**Rule 11 requires all attorneys or a party representing himself to sign all pleadings, written motions and papers, certifying that hte paper is proper, the legal contentions are warranted by law, and the factual contentions have evidentiary support.

• 21-day safe harbor rule to correct/withdraw or sanction.

Question 3

Complaint

Answer 3

Federal: a federal complaint must include:

1. identification of the party
2. proper SMJ;
3. statement of the claim showing the factual basis on which P is entitled to relief.
4. a demand for judgment
5. signature of P or his attorney.

California: a CA complaint must include:

1. identification of the parties: CA allows P to sue fictitious “Doe” where D’s identity is unknown.
2. statement of the claim, including specific facts supporting every element of each legal theory alleged.
3. demand for judgment, including the amount of damages sought, unless the damages sought are for actual or punitive damages for a personal injury or wrongful death action.
4. signature

Question 4

Rule 12 Response

Answer 4

Rule 12 requires a defendant to respond by either a motion or by an answer within 21 days after service of process (or within 60 days if service waived). CA allows 30 days to respond.

Question 5

Motion to strike

Answer 5

• the motion to strike aims at pleadings containing immaterial or redundant issues.
• CA.Anti-SLAAP (Anti-Strategic Lawsuits Against Public Participation) motion to strike targeting suits brought to chill the valid exercise of free speech and petition. The burden is on P to show a probability of winining on the merits.

Question 6

Federal Rule 12(b) defenses (can be raised as both pre-answer motion or answer)

Answer 6

1. Lack of SMJ: can be raised anytime before all appeals are exhausted.
2. Lack of PJ: this must be raised in the first response or is deemed waived.
3. Improper venue: must be raised in the first response.
4. insufficient process: must be raised in the first response.
5. insufficient service of process: must be raised in the first response.
6. Failure to state a claim on which relief can be granted: can be raised anytime until the trial is concluded.
7. Failure to join an indispensable party: can be raised anytime until the trial is concluded.

Question 7

CA general demurrer

Answer 7

1. Pleading failed to state facts sufficient to constitute a cause of action;
2. Court lacks SMJ

Question 8

CA special demurrer

Answer 8

Special demurrer is only allowed in cases classified as unlimited. These issue can be raised on a special demurrer or in the answer.

1. uncertain pleading;
2. Complaint is unclear about which theory or liability are asserted against each D.
3. Lack of legal capacity to sue.
4. Existence of another case between P and D on the same cause of action.
5. Defect or misjoinder of parties;
6. Failure to plead whether a contract is oral or written;
7. Failure to file a required certificate.

Question 9

Motion for a more definite statement

Answer 9

Used in federal courts where the complaint is too vague.

Question 10

CA motion to quash service of summons

Answer 10

Done by means of a special appearance and must be made separately from the answer. This motion must be made either before or concurrently with the filing of the demurrer or motion to strike or the answer.

1. Lack of PJ: D must raise PJ on or before last day of his time to plead or it is waived.
2. Insufficient process
3. Insufficient service of process

Question 11

Answer

Answer 11

D’s response to the complaint.

1. D must respond to the allegations by denying them, admitting them, or stating he lacks sufficient information to do either. Failure to deny can operate as an admission.
2. D must assert any affirmative defenses in the answer.

CA

Question 12

Right to amend

Answer 12

Federal: P has a right to amend once within 21 days of service

CA: P has a right to amend once before the answer or demurrer to the complaint is filed, or after the demurrer is filed but before the hearring on the demurrer.

Question 13

Federal relation back doctrine

Answer 13

Amended claims “relate back” (after the statute of limitation has run) if they concern the same conduct, transaction, or occurrence as the original complaint.

Amended defendants “relate back” if they concern the same conduct, transaction, or occurrence as the original complaint.

Question 14

CA relation back “Doe” Amendments

Answer 14

P must substitute a named D for “Doe” D within 3 years of filing.

P must be genuinely ignorant or the identity, the facts giving rise to the c ause of action against that D, or the fact that the law provides a cause of action.

Question 15

Permissive Joinder

Answer 15

P and/or D may be joined to an existing case if the claims arise from the same transaction or occurrence and raise at least one common question of fact or law. However, there still must be SMJ.

Question 16

Joinder of a necessary party

Answer 16

a party is a necessary party if:

1. the court cannot provide complete relief without the necessary party; or
2. the absent party’s interest will be harmed if he is not joined; or
3. the absent party is **subject to multiple inconsistent obligations.

Question 17

What if a “necessary party” cannot be joined

Answer 17

the court will consider

• if there is an alternative forum available
• assess the likelihood and extent of prejudice to the parties and the absent party
• whether the court can shape relief to avoid the prejudice

The court may either dismiss the case because the party is indispensible or proceed with the case without the necessary party.

Question 18

A necessary party must be joined if:

Answer 18

1. the court has PJ over him;
2. joining him does not destroy diversity, when diversity is the basis of federal SMJ.

Question 19

Impleader

Answer 19

a mechanism defendant can use to add a third party defendant in order to seek indemnity, subrogation, or contribution.

• Supplemental jurisdiction applies because the claim will meet the common nucleus of operative fact requirement and no independent basis for SMJ is required.
• CA calls this a cross complaint, and it is broader since it allows the addition of any claim on which the third-party defendant is liable so long as it pertains to the same transaction or occurrence.
• venue need not be proper for 3d party D.

Question 20

Intervention

Answer 20

A nonparty claims an interest in the property or transaction that is the subject of the pending lawsuit and disposition in his absence will impair his rights.

CA allows intervention if the intervener’s interest is direct and immediate

Question 21

Interpleader

Answer 21

**One holding property (the stakeholder) forces all potential claimants into a single lawsuit to avoid multiple and inconsistent litigation.

• statutory interpleader: requires only that one claimant must be diverse from one other claimant and the AIC must be $500 or more.
• Rule 22 interpleader: requires that the stakeholder must be diverse from every claimant and the AIC must exceed 75k.

Question 22

Compulsory counterclaim

Answer 22

arises from the same transaction or occurrence as P’s claim and must be raised or the claim is deemed waived.

• supplemental jurisdiction will extend to a compulsory counterclaim.

Question 23

Permissive counterclaim

Answer 23

do not arise from the same transaction or occurrence and may be raised in the pending case or in a separate case.

• no supplemental jurisdiction

Question 24

CA cross complaint

Answer 24

encompass all 3d party actions, such as counterclaims, cross claims, impleader, etc.

Question 25

Cross claim

Answer 25

An offensive claim against a co-party and must arise from the same transaction or occurrence. Cross claims are never compulsory.

• supplemental jurisdiction applies to the cross claim.

Question 26

Federal court class actions requirements

Answer 26

1. Numerosity: too many class members for joinder to be practical;
2. Commonality: common questions of law or fact;
3. Typicality: the representative’s claims or defenses are typical of those in the class;
4. Adequacy: the representation will fairly represent the class.

Question 27

Types of class actions

Answer 27

The class action must fit within one of the following types of classes:

1. Prejudice: class treatment is necessary to avoid inconsistent results;
2. Injunctive or declaratory relief is sought; or
3. Question of law/fact common to the class predominate over questions affecting individuals, and a class action is a **superior method to resolve the issues.

Question 28

Diversity issue in federal class actions

Answer 28

The federal court relaxes the jurisdictional requirements for some class actions. Federal court can hear a class action if the following requirements are met:

1. diversity: any class member is diverse from any defendant: and
2. aggregation: the class claims aggregate to exceed $5M.
3. 100 members: there are at least 100 proposed class members.

Question 29

CA class actions

Answer 29

A CA class action is allowed if there is:

1. an ascertainable class: and
2. a well-defined community of interest among class members.

To analyze the interest the state court looks at whether: a) common question of law or fact predominate; b) the representative will adequately represent the class interests; and 3) the class will result in substantial benefit to the parties and the court.

Question 30

Types of CA class actions

Answer 30

there is only one type of class in CA

Question 31

Notice requirements for CA class action

Answer 31

individual notice is not required and publication is an acceptable method of notice.

Question 32

Request for physical or mental examination of a party

Answer 32

The requesting party must obtain a court order upon a showing that the physical or mental condition of the party is at issue, and there is good cause for an examination.

CA allows the defendant to have one physical exam of the plaintiff as a right when P’s physical condition is at issue. Other physical or mental examination require leave of the court.