Service, Pleadings

Question 1

When may process be SUBSTITUTED?

i.e. left with D’s butler at her summer home

Answer 1

1. D’s USUAL ABODE

2. service on someone of SUITABLE AGE AND DISCRETION who RESIDES there.

Question 2

What does Rule 11 require?

Answer 2

Rule 11 requires the attorney to sign all papers, certifying that:

1. not for an IMPROPER PURPOSE
2. legal contentions are WARRANTED BY LAW
3. factual contentions have EVIDENTIARY SUPPORT

Question 3

What do you do when there’s a Rule 11 violation by another party?

Answer 3

You SERVE motion on the other party for sanctions.

SAFE HARBOR of 21 days to fix the problem.

Question 4

What is the standard for a Complaint (Federal)?

vs California?

Answer 4

Federal:
FACTS supporting a PLAUSIBLE claim.

California:
NOTICE PLEADING. enough facts to put other side on NOTICE.

Question 5

How may a Defendant respond to a complaint?

Answer 5

1) by MOTION

2) by ANSWER

Question 6

What are the Rule 12(b) motions?

Which are “WAIVABLE?”

Answer 6

1) lack of SMJ
2) lack of PJ
3) improper VENUE
4) insufficient PROCESS (prob w/papers)
5) insufficient SERVICE OF PROCESS
6) failure to STATE A CLAIM
7) failure to JOIN an INDISPENSABLE PARTY

Question 7

What are the requirements for a Complaint –
Federal

vs
California?

Answer 7

Federal:  NOTICE PLEADING
FACTS supporting a PLAUSIBLE claim. 
1. Grounds for SMJ
2. Plain statement of claim showing ENTITLED TO RELIEF
3. Demand for RELIEF sought

California:
FACT PLEADING
1. Statement of FACTS consituting COA
   -- sufficient facts for each element
2. Demand for JUDGMENT
--> more stringent

Question 8

What happens with Frivolous Litigation in CA state COAs?

Answer 8

1. statute that mirrors Rule 11
2. statute that allows court to order party or attorney to pay expenses and attorney’s fees bc of BAD FAITH or FRIVOLOUS TACTICS in litigation.

Question 9

Which Counterclaims are COMPULSORY?

Answer 9

Those ARISING FROM SAME T/O AS P’S CLAIM.

Question 10

What is a COUNTERCLAIM?

Answer 10

Claim against an OPPOSING party.

Part of D’s answer (if permissive – can file later, sep case).

Question 11

Which Counterclaims are PERMISSIVE?

Answer 11

Those Not arising from same T/O as P’s claim.

*may be filed with answer or with separate case.

Question 12

What is a CROSSCLAIM?

Answer 12

Claim against a CO-PARTY

Question 13

What is required for a CROSSCLAIM?

Must it be filed in same case?

Answer 13

must arise from SAME T/O

NOT COMPULSORY

Question 14

When may pleadings be amended?

Answer 14

1. P has RIGHT TO AMEND once w/in 21 days after D serves first Rule 12 response.
2. Seek Leave of Court – “if justice so requires”
3. Variance – Ev at trial doesn’t match what was pleaded
4. Relation back

Question 15

What is VARIANCE wrt Pleadings?

Answer 15

It’s when the evidence at trial doesn’t match what was pleaded.
– If D doesn’t object to the Ev, P can move to amend the complaint to CONFORM TO THE EVIDENCE.

Question 16

What is RELATION BACK?

Answer 16

Amendment after the SOL has run. You treat the amended pleading as tho filed when original was, to avoid SOL problem.

Question 17

When may claims be Related Back?

Answer 17

1. to Join a NEW CLAIM: if same T/O
2. to change a D:
   a. same T/O
   b. new party knew/had reason w/in 120 days of filing this case.
   c. new party knew BUT FOR a MISTAKE, she would’ve been named in filing.

Question 18

CALIFORNIA.

What is a Motion to Quash Service of Summons?

Answer 18

It is a SPECIAL APPEARANCE used to assert defenses:

1) Lack of PJ
2) Improper Process
3) Improper Service of Process

Question 19

CALIFORNIA.

What is a SPECIAL APPEARANCE?

Answer 19

Must be filed separately from a General Appearance. e.g. Motion to Quash Service of Summons must be filed separately from a Demurrer etc.

Question 20

CALIFORNIA.

How do you get appellate review if the court denies a Motion to Quash Service of Summons?

Answer 20

Seek “Writ of Mandate” from Ct of Appeal w/in 10 days.

Cannot wait until final judgment.

Question 21

What is an Anti-SLAPP Motion to Strike?

Answer 21

SLAPP = Strategic Lawsuits Against Public Participation – brought to chill valid exercise of First Amendment rights.

D can make this motion when P sues D for an act D took in furtherance of her First Amendment rights.

Question 22

CALIFORNIA.

What is the equivalent of a Counter-Claim?

Answer 22

Cross-Complaint against P.

Question 23

CALIFORNIA

What is the equivalent of a Cross-Claim?

Answer 23

Cross-Complaint against co-party.