Civil Procedure (CA)

Personal JDX

(1) Satisfy a statute
-E.g., long-arm statute

(2) Due Process
-Much more important analysis

NOTE:
The analysis is the same for state and federal court

What is in personam jurisdiction

π wants to impose a personal obligation on ∆ personally, not ∆'s property.

(1) Served with process in the state
(2) Domiciled in the state
(3) Do things in the state (conduct business)

What is the TEST for the Constitutional analysis for in personam jdx?

"Does ∆ have such minimum contacts with the forum so that exercise of jdx does not offend traditional notions of fair play and substantial justice?"

TRADITIONAL:
-Domiciled
-Consents
-Present and served in the forum state

CONSTITUTIONAL DP (factors)
(1) Minimum Contacts
-"Purposeful availment" AND
-Foreseeability (of suit)

(2) Fairness (fair play and substantial justice)

(a) Realtedness
-specific (directly related to activities)
-general (continuous and systematic ties)

(b) Convenience
-Sever disadvantage
(c) State Interest
-Providing a forum for its citizens

What is "purposeful availment?"

∆ used the state:
-Roads
-Business

How do you remember the Constitutional test for pjdx?

"My Parents Frequently Forgot to Read Childrens' Stories"

(1) Minimum contacts
(a) Purposeful avilment
(b) Foreseeability

(2) Fair play and substantial justice
(a) Relatedness of contact and claim
(b) Convenience
(c) State's interest

What is the difference between general and specific personal jdx?

(1) General
-If continuous and systematic contacts with this forum, you may be sue for anything in this state

(2) Specific
-If your use of the forum is directly related to the cause of the suit, you may be sued in that forum

When can a website subject you to personal jdx?

If the website is interactive and not passive.

What type of JDX do CA Superior Courts have?

General Subject Matter JDX.

-They can hear any civil case

-They cannot hear cases that federal courts have exclusive jdx over (e.g., trademark, bankruptcy, antitrust, etc.)

What is a limited civil case and why is it important?

-Any case thats AIC ≤$25k
-Can never recover more than $25k
-Limited pleading and discovery

What is the difference between a local and transitory action for purposes of Venue?

(1) Local Action:
-Deals with land
-Venue = where ever that land is

(2) Transitory Action:
-All other cases
-Venue =
(a) where all ∆'s reside; or
(b) where the contract was entered or to be performed
(c) where the injury occurred
(d) anywhere if all ∆'s are non-residents

When can a court transfer venue even though the original venue is proper?

(1) Cannot have an impartial trial
(2) Convenience of witnesses and ends of justice
(3) No judge qualified to act

NOTE:
The parties either agree on new forum OR
If no agreement, judge decides.

What is "forum non conveniens (inconvenient forum)"

If there is a FAR more appropriate venue, a court may dismiss (usually without prejudice) (or stay) to allow π to file in that court.

This occurs if transfer is impossible because the proper venue is in a different judicial system (another state or foreign).

Court may force ∆ to waive PJDX or SOL

Who may serve process?

Any NON-party who is at least 18.

This is the same as federal court

What is the difference between state and federal substitute service of process?

Federal

STATE
-Only may be used if personal services cannot be done with reasonable diligence
-Must be made at ∆'s usual abode
-Must be left with a competent member of the household who is at least 18
-That person must be informed of the contents
-Mailed 1st class postage prepaid to ∆

Can services be made outside of CA?

YES.

In any manner allowed by CA law.

OR

By 1st class mail, postage prepaid.

Does CA have immunity from process for those who appear for another case?

NO.

-If ∆ appears for a CIVIL case, ∆ may be served with process for another case. He is not immune.

NOTE:
This is unlike federal law.

What type of pleadings does CA require?

Fact pleading.

-π must allege the ultimate facts of each element of each COA
-Heightened pleading for fraud
-This is more detailed than fed court's "notice pleading"

What methods of service are allowed in state court?

(1) Personal

(2) Substitute
-if personal service cannot with reasonable diligence be had

(3) Waiver
-∆ has 20 days to respond
-Service is complete when ∆ executes the waiver

(4) Publication
-if service in any other way cannot with reasonable diligence be had
-almost never allowed

What is the difference between federal and state waiver of process?

STATE
-Process is mailed to ∆ by first class mail, postage prepaid
-∆ has 20 days to respond
-Service is complete when ∆ executes the waiver

FEDERAL
-Process is mailed to ∆ by first class mail, postage prepaid
-∆ has 30 days to respond
- IF ∆ does NOT return waiver, ∆ MUST be personally served BUT will have to pay the cost of service.

What must the complaint contain?

(1) A statement of ultimate facts constituting the cause of action

(2) Demand for judgment
-If damages are demanded, a $ amount is required UNLESS:
-PI, Wrongful Death, or Punitive
-BUT SEE statement of damages

(3) Limited or Unlimited Cases

(*) PJDX NOT required

What is a "statement of damages"

(1) IF π requests damages for a PI, wrongful death, OR request punitive damages
(2) ∆ may request a statement of damages
(3) π has 15 days to respond
(4) π cannot obtain a default until π provides the SOD to ∆

When does ∆ have to respond to π's complaint?

30 days after service of process
OR
Answer w/in 10 days after demurrer or motion fails

-Federal allows only 20 days to respond

What is the CA counter part to 12(b)(6)?

The general demurrer.

What else can be raised by general demurrer?

Lack of SMJDX.

-This is rare because state courts have general jdx
-This only works for cases that federal courts have exclusive jdx (e.g., antitrust)

What can be raised in a special demurrer?

(1) Complaint is uncertain, ambiguous, or unintelligible
(2) Complaint is unclear about which theories of liability are asserted
(3) Existence of another case between the same parties on the same cause of action
(4) Defect or misjoinder of parties
(5) Failure to plead whether a contract is oral or written
(6) Failure to file a certificate

How can ∆ respond π's complaint?

(1) General demurrer
(2) Special demurrer
(3) Motion to quash service of process
(4) Motion to dismiss or stay for inconvenient forum
(5) Motion to strike
-Anti-SLAPP motion to strike
(6) Answer

When can a π demurrer to a ∆'s answer?

If the ∆'s answer does not state ultimate facts sufficient to constitute an affirmative defense.

What are the federal counter parts to the CA "cross complaint?"

(1) Cross complaint against π
-Fed: counter claim

(2) Cross complaint against co-∆
-Fed: cross claim

(3) Cross complaint against impleader 3rd party
-Fed: impleader

Are fictitious ∆'s allowed in state court?

YES.

NOT in federal court

What is the difference between the work product doctrine in CA and Federal Court?

California:
Must be created by attorney or his agent

Federal:
Must be created by the party, representative of a party, attorney, or his agent

Is there discovery of consulting experts (those who will not testify at trial)?

NO

Not in state or federal court.

Can an attorney seek to limit discovery by claiming the information sought is private?

YES

-The CA constitution recognizes a right of privacy
-The court must balance the needs for discovery against the need for privacy

Does an attorney have a duty to supplement discovery responses?

NOT in CA so long as the information given was accurate and complete when given.

In Federal court, YES.

Because there is not duty to supplement discovery responses in CA, how does the opposing party ensure accurate and complete responses?

He may request Supplemental Discovery up to 2 times before the trial date is set AND 1 time after.

-This is ONLY allowed in UNLIMITED cases

What are the types of class actions in state court?

THERE are NONE.

-Unlike federal court
(3 types: Damages; Prejudice; Injunction/Declaratory)

What are the types of dismissal in state court?

(1) Voluntary
-Discretion to dismiss w/ or w/o prejudice

(2) Involuntary
-Discretion to dismiss if not brought to trial w/in 2 years of filing

(3) Mandatory
-Must dismiss if:
i) Case not brought to trial w/in 5 years of filing
ii) OR process was not served w/in 3 years of filing

Right to a Jury Trial
State
v.
Federal

STATE
-CA Constitutional right
-12 jurors
-No jury in equity cases even if there are incidental law claim
-3/4 verdict

FEDERAL
-7th Amendment Right
-6 to 12 jurors
-No jury in equity cases BUT if there are incidental law claim, must be a jury trial
-unanimous verdict (unless otherwise agreed)

When will a state court grant a trial doe to excessive or inadequate damages?

When the award "shocks the conscience."

Does a court always have to grant a motion for a new trial if the award "shocks the conscience?"

NO

Remittitur (lower)
-Give π choice of lower award or new trial

OR

Additur (raise)
-Give ∆ to pay higher award or new trial

Is additur allowed in federal court?

NO

-It is unconstitutional, in violation of the 7th amendment.
-7th amendment has not been incorporated
-Therefore, state courts have the power of additur

When are interlocutory reviews allowed (appeal of a non-final judgment)?

(1) By statute

(2) Collateral order rule

(3) Extraordinary writ
-mandate
-prohibition

What law is used for claim and issue preclusion?

The law of the system that decided the 1st case.

E.g., if state law decided case 1, use state law for claim and issue preclusion in case 2 even if it is in federal court.

What are the elements of claim preclusion?

(1) Same claimant against the same ∆
(2) Case 1 ended in a valid final judgment on the MERITS
(3) Same cause of action

When is a judgment "on the merits?"

ALWAYS

UNLESS
(1) Court said otherwise
(2) Lack of JDX
(3) Improper Venue
(4) Failure to join indispensable party

For purposes of issue and claim preclusion, how do you determine if the cause of action is the same?

FEDERAL:
-Same T/O
-property injury = bodily injury IF arose out of the same T/O

CA:
-Same Primary Rights
-property injury ≠ bodily injury

What are the elements of issue preclusion?

(1) Case 1 ended in a valid, final judgment on the merits

(2) Same issue was actually litigated and determined in Case 1

(3) The issue was essential to the judgment of Case 1

(4) Against a party to Case 1

(5) By whom?
(a) Mutuality (CL):
-someone who was a party in case 1
(b) Non-mutual Defensive:
-Modernly allowed
(c) Non-mutual Offensive:
-Modernly allowed So long as fair

Is there risk of issue or claim preclusion after a default judgment?

Issue Preclusion: NO

Claim Preclusion: YES

When is a case classified as limited or unlimited?

(1) Initially in the complaint by P
-not considering attorney's fees interest or cost
-if not mentioned, it is assumed unlimited
-jdx is NOT lost if misclassified

(2) May be reclassified
-Automatic by court clerk
-On motion by party
-On motion by court w/o considering merits
*court may consider material beyond the pleadings (e.g. other awards)

If there is a motion to reclassify a case (limited/unlimited), what is the standard?

(1) Unlimited --> Limited
-Case will necessarily result in a verdict of $25k or less

(2) Limited --> Unlimited
-Possibility the verdict will exceed $25k

In determining if a case is limited or unlimited, will the court aggregate claims?

YES

-Unrelated claims of P against D
-Related claims of P1 and P2

Are special demurrers available in limited cases?

NO, only in unlimited cases.

Can P assert a claim against a fictitious D?

YES IF:
-P is genuinely unaware of D's identity
-P may assert a claim against "Doe"

NOTE:
This is not allowed in federal court

Are demurrers "granted" or "sustained"

Sustained

Motions are granted or denied

Demurrers are sustained or overruled

When must a motion to quash service of summons be made?

Before or with a demurrer or a motion to strike.

OR it is waived.

What defense is a motion to quashed service of summons used to raise?

(1) Lack of pjdx
(2) Improper process
(3) Improper service or process

-This is known as a "special appearance"

What are the names of the CA joinder claims?

(1) Cross complaint
-against π
-against co-∆
-against impleader 3rd party
(2) Intervention
(3) Interpleader

Is it easier to join a 3rd party (3rd party impleader) in CA or Federal Court?

CA

CA allows if same T/O
Fed allows if indemnity or contribution only

How many depositions may a party take in a limited case?

ONLY 1

What are the 5 CA discovery tools?

(1) Depositions
-Party or non-party with subpoena
-Subpoena Duces Tecum (bring items)
-No limit
-No hour limit

(2) Interrogatories
-Parties only
-35 max (may serve more w/ a declaration)
-No max for Forum Interrogatories

(3) Request to produce
-Party or non-party with subpoena
-30 days response time
-Not allowed in limited cases

(4) Physical or mental exams
-1 allowed for PI cases as a matter of right

(5) Request for admissions
-Party only
-35 max (unless issue of doc genuineness-unlimited)
-Not allowed in limited cases
-30 days response time

What is the CA standard for discoverable material?

Anything relevant to the subject matter involved in the pending action.

-This is slightly broader than federal court

Class Action "Big Picture"

(1) Ascertainable class

(2) Well defined community of interest
-rep is adequate
-common questions predominate
-class will result in substantial benefit to parties and court

(3) No "types"
-Unlike fed court

(4) Notice may be by publication
-Unlike fed court (individual notice required)

(5) Claims may be aggregated to meed unlimited requirements
-Fed looks only to Rep to determine AIC (diversity jdx)

What is the $ limit for small claims cases?

Individual
$7,500

Entity
$5,000

When determining whether there was a "valid final judgment on the merits" for issue and claim preclusion, what analysis must be undertaken?

Make sure the previous court disposed of the action in a proper way.

E.g., If the court dismissed the action because of lack of SMJDX, analyse whether it actually lacked SMJDC.