Cal & FRCP Short Outline Cal & FRCP 1 I. PJ (Same under Cal Rules and FRCP) A. Statutory and Const Analysis – the CA statute reaches the constitutional limit B. Does defendant have such minimum contacts with the forum state so that exercise of jurisdiction in such forum state does not offend transitional notions of fair play and substantional justice. C. Traditional bases – domicile, consent, present in state when served with process D. Contact – relevant tie to forum state, purposeful availment and foreseeability. E. Fairness – relatedness between contact and P’s claim (sp v. gen jurisdiction) and convenience (place D at a severe disadvantage) II. SMJ (FRCP) A. Diversity – complete diversity of citizenship; amount in controversy; domicile B. FQ – claim arises under federal law C. Supplemental Jurisdiction – the rule cnoof t/o; limitation D. Removal – who, where; when (3), how E. Erie – diversity suits, substantive law, if conflict apply federal law if valid. If procedural always valid. If no conflict apply 3 part balancing test – outcome determinative, balance of interests, forum shopping II. SMJ (Cal Rules) A. Superior Court – almost any case B. Classification – limited civil case (less or equal to 25K) , unlimited (>25K), small claims (individuals less than or equal to 7500, corps less than or equal to 5000); initially determined by plaintiff and noted in caption of complaint C. Reclassification – doesn’t affect SMJ and can be done by the court or by motion. If from limited to unlimited P must pay a fee. From unlimited to limited: necessarily result; From limited to unlimited: possibility D. Multiple Claims – aggregate if one P and one D. If there is a cross complaint for over 25K, then it gets reclassified. III. Venue (FRCP) A. Basic Rules – Local Action; Transitory Action: all D’s reside or any D resides if all Ds reside in the same state, or sub part of claim arose; if not in FQ where D is found or in Div where D is subject to PJ B. Residence – Citizenship for individuals and PJ for Corps C. Transfer –Proper Venue – convenience and interest of justice looking at pub and priv factors. Improper Venue – Court can dismiss or transfer. D. Forum Non-Conveniens – dismiss if another system outside the fed legal system is far more convenient and appropriate. III. Venue (Cal Rules) A. Local Action v.Transitory Action in county where any D resides, where K was entered into or performed, where injury occurred, or principle place of business. If all Ds are non CA residents, then any county is ok. B. Transfer – Improper: then D files notice a motion ordering transfer on P; Proper: if impartial trial cannot be held or convenience of witnesses and ends of justice would be promoted, or if no judge is qualified to act. C. Inconvenient Forum: public and private factors and can dismiss based on condition that D waive PJ or SOL in the other forum IV. Service of Process (FRCP) A. Summons and copy of complaint within 120 days of filing suit B. Personal Service and Substitute Service (abode; suitable age and discretion who lives there; Serve Agent E. State Law: may also use the State law of the state where the Fed Court sits F. Waiver by Mail – waiver form within 30 then 60 to respond G. Geographic Limitation – must follow state law of the forum state H. Immunity from Service if in state to be a witness in another state IV. Service of Process (Cal Rules) A. Same as fed court except 60 day limit B. Personal Service or Substituted service (only if personal service cannot be had with rx diligence; to abode with a competent member of household over 18 that is informed of contents; and also process must be mailed and deemed effective 10 days after mailing); Corp Service through agent C. Waiver of service by mail – same except 20 days to return D. Service by publication as a last resort upon affidavit from P’s attorney E. Service outside CA – by any manner consistent with CA law or by mail with return receipt F. Immunity – no immunity if being served for a state case V. Pleadings (FRCP) A. Rule 11 – Sign certifying not improper paper, legal contentions warranted by law, facts supported by evidence. Sanctions to deter – sua sponte or on motion – serve on opposing counsel first and give 21 day safe harbor. Fines paid to court. B. Complaint – notice pleading, statement of SMJ, short and plain statement of the case, demand for judgment. More particularity and specificity – fraud, mistake special damages. C. D’s Response a. Form Motions filed prior to responsive pleading (motion to strike, more definite statement answer). b. 12b – smj (can be raised anytime), pj, improper venue, insufficient process or service of process (waived if not in answer or preanswer motion), failure to state claim, failure to join indispensable party (Can be raised anytime thru trial) c. Answer – Deny, admit, raise personal defenses. 20 days or 10 days after ruling on any motion. If waive pj the 60. D. Counter Claim – compulsory --t/o or waive , permissive, SMJ for the claim E. Cross Claim – against co party; need t/o but never waive ; SMJ Cal & FRCP Short Outline Cal & FRCP 2 F. Amended Pleadings – P once before D answers; D w/in 20 days of answer, otherwise ask court for permission bc justice so requires. At trial, move to amend to conform to evidence; relation back to join a new claim or new D (t/o, party knew of action within 120 days of filing, but for mistake party would have been named originally) V. Pleadings (Cal Rules) A. Fact pleading – not notice, “ultimate facts supporting cause of action”; heightened pleading requirement for anything involving fraud, breach of K, products liability. B. Frivolous Litigation – 21 days safe harbor applies also to court not just to a party bringing the motion; Court can asses punies against a convicted felon who brings an action against his victim; courts can require pmt of att fees and expenses if bad faith or frivolous tactics in litigation (without merit solely for the purpose of harassing an opposing party) C. Complaint a. Statement of facts and demand for judgment. b. Must state amount of damages but not in personal injury or wrongful death suits and never punitives c. D may request a statement of damages and P must provide within 15 days, unless in case of default, P must always provide before default can occur. d. Verified pleadings are treated as affidavits because signed under penalty of perjury. e. Fictitious defendants – If unaware of the true identity of the D, can name as Doe defendant, and will work for relation back. D. Response a. General Demurrer – failure to state facts sufficient to constitute a coa, take all allegations true, can be raised instead of answer, and can be used to challenge SMJ b. Special Demurrer – used if complaint is ambiguous or unintelligible, or lack of legal capacity, or anything else. Not available in limited civil cases. c. Motion to Quash Service of Summons – to challenge PJ in a special appearance; or to challenge process or service of process; you must make these motions before or with the filing of a demurer or motion to strike otherwise they are waived. d. Motion to Strike – either all or part of the complaint e. Answer – same as fed court but may use a general denial, assert defenses; insufficient answer can be demurred to by P; verified answer must be filed with a verified complaint. Must file within 30 days or 10 days after motion is denies. E. Claims by Defendant a. Cross complaint – same rules as counter claim for compulsory and permissive, filed with or before answer b. Cross complaint against co party – filed anytime before trial date set; must be t/o, never compulsory c. Cross complaint against a TPD --filed anytime before trial date set; must be same t/o but need not be for indemnity or contribution, never compulsory F. Amended Pleadings a. Once anytime before D files answer or even after D has filed a demurrer as long as before trial. Amend to conform to evidence. Relation back applies as long as the new cause of action relates to same general facts, to misnomers, and doe Ds for 3 years. VI. Joinder (FRCP) A. Proper Ds and Ps to join – need t/o; at least one cq B. Necessary Party --cannot accord relief, interest harmed, subjects a party to multiple obligations feasibility; Join if feasible. If not either proceed or dismiss – alternative forum available, likelihood of prejudice, shape relief to avoid prejudice. If dismiss, then the party was indispensable. C. Impleader – brought by a D against a TPD in a vicarious liability situation; 10 days to implead; need SMJ D. Intervention – 3d party wants to join a pending suit either as of right if interest harmed; or permissive if there is a CQ and 3d party wont screw up the SMJ E. Interpleader – Stakeholder forces all potential claimants into a single lawsuit to avoid multiple lawsuits and inconsistency. By Rule of State – Div, amt, service, venue F. Claim Joinder – once a party, any claim can be joined if meet SMJ G. Class Action a. Numerousity, commonality, typicality, fair and adequate representation b. Prejudice class action, injunction or declaratory judgment, damages class action (CQ predominates, superior most efficient method) c. Certifcation at an early time practicable – define class, claims, issues, defenses and appoint class counsel to fairly and adequately represent interest of class d. Notice in damages class action – court must notify all reasonably identifiable members discussing opt out, binding effect. e. Settlement or Dismissal only with court approval f. SMJ based on div of the rep and the rep’s amount in controversy VI. Joinder (Cal Rules) A. Proper P and D – same test as federal B. Necessary and Indispensable parties – same as federal C. Impleader – called cross complaint D. Intervention – the intervener as of right or permissive if interest is direct and immediate E. Interpleader – possible stakeholder can only interplead if she does not claim to own the property Cal & FRCP Short Outline Cal & FRCP 3 F. Class Action a. common general interest and many persons such that it is impracticable to bring everyone to court; b. ascertainable class and c. well defined community interest such that common questions predominate, class action will result in a substantial benefit to parties and court, adequate representative. d. No separate types of class actions e. Notice by publication is ok f. Ca does not require the court to appoint class counsel g. Settlements or dismissal must be approved by the court h. Classification based on the dollar amount sough by the representative VII. Discovery (FRCP) A. Required Disclosures – initial disclosures, experts, trial information B. Depos – non party needs subpoena or subpoena duces tecum to bring docs with, max 10 depos and 7 hrs in a one day. C. Interrogs – written questions to a party, written answers w/in 30 days, max 25 D. RFP – to a party or non party with subpoena; must respond 2/in 30 days E. RFA – one party to another to admit truth; respond w/in 30; failure to deny=admit F. Physical or mental exam – court order upon showing health is in actual controversy and good cause G. Certification – separate from rule 11; warranted, not improper purpose, and not unduly burdensome H. Duty to supplement upon learning response is incomplete or incorrect I. Scope – relevant to a claim or defense – reasonably calculated to lead to the discovery of admissible evidence. No privileged information. No Work Product – materials prepared in anticipation of litigation by lawyer or party; mental impressions, opinions, conclusions, legal theories. Witness statements can be discoered if substantial need and not otherwise available. Experts who will testify at trial must be disclosed and depo may be taken of them, but no disclosure of non-testifying witnesses absent exceptional need. J. Protective order; sanctions for partial violation—court order compelling plus costs, then heavy sanctions if still no compliance. Sanctions for total violation—heavy including costs and attorneys fees. Always need to show a good faith effort to get discovery without court involvement. VII. Discovery (Cal Rules) A. No required disclosures B. Depositions—no time limit or number limitations; need court order to take a depo of a party within 20 days of filing. C. Interrogatories – max of 35; need court order within 10 days of filing D. RFP – court order within 10 days E. Medical Exam --physical exam lawyer has right to be there, but for mental exam need court order F. RFA --max of 35; court order with 10 days G. Limitation on discovery in limited civil cases --max of 35 total interrogatories, RFA, RFP. Form questionnaire also permitted if P fills out and serves with summons H. Supplemental Discovery --only in unlimited cases, no duty to supplement as long as info was accurate when given. I. Scope of Discovery – broader than fed – anything relevant to the subject matter of the pending action – relevant is anything rx calculated to lead to the discovery of admissible evidence. J. Privilege – requires a privilege log K. Privacy --CA const recognizes this right and may limit discovery L. Work Product – only material prepared in anticipation of litigation by attorneys M. Expert – may request simultaneous exchange of witness info N. Enforcement – meet and confer VIII. Pretrial Ajudication (FRCP) A. Voluntary Dismissal – once without prejudice before D files answer or MSJ. Second time is with prejudice. B. Default and Default Judgment C. Failure to State a Claim – court assumes all allegations are true. Same motion after answer is failed is called judgment on the pleadings. D. Summary Judgment – moving party must show there is no genuine dispute as to any matieral fact and he is entitled to judgment as a matter of law. Courts generally view evidence in the light most favorable to the non moving party. Affidavits are evidence but pleadings are not. VIII. Pretrial Adjudication (Cal Rules) A. Voluntary Dismissal – any time before trial actually commences and court decides whether it is with or without prejudice, depends on how close to finishing B. Involuntary Dismissal –if not brought to trial within 2 years and mandatory if not brought to trial after 5 years C. Default and Default J --may be entered by clerk in most cases D. MSJ --CA has a burden shifting approach so that the non-moving party must show that there is a triable issue of fact. Moving party must file a separate statement of undisputed material facts with supporting evidence. Must serve at least 75 days before hearing on the msj IX. Case Management: Conferences and Meetings (FRCP) A. 26(f) conference at least 21 days before scheduling conference. Form discovery plan and present it to court. Cal & FRCP Short Outline Cal & FRCP 4 B. Scheduling order – cuts of joinder amendment and motions. C. Pretrial Conference – as needed to expedite settlement. The final one is a roadmap which determines the issues to to be tried and evidence to be proffered. IX. Case Management – no rule 26(f) conference, but there is a case management conference (Cal Rules) X. Trial, Judgment and Post Trial Motions (FRCP) A. Jury Trial --demand within 10 days of last pleading, 7th amendment preserves right to jury trial in equity but not law. If case involves both, resolve the legal issues first. B. Voir Dire – unlimited strikes for cause and 3 peremptories. C. Motion for J as a matter of law – can bring motion once the other side has been heard, reasonable people could not disagree on the result and courts generally view evidence in light most favorable to nonmoving party D. Renewed Motion for J as matter of law --occurs after jury decides against you then you must file within 10 days after the judgment. If you did not move the JMOL, you cant move for the RJMOL. Same standard. E. Motion for new trial --latest is 10 days after judgment; prejudicial error, new evidence that could not have been obtained before, prejudicial misconduct of party or attorney or third party or juror, judgment against the weight of evidence. X. Trial, Judgment, and Post Trial Motions (Cal Rules) A. Jury Trial – As per the CA const based on law equity. But equity tried first. B. Demand for jury trial – within 5 days of setting trial date, and must make deposit of advance jury fees. C. Number of jurors 12 D. Voir Dire – 6 peremptories; no dismissal on basis of race color religion sex national origin sexual orientation or similar grounds E. Verdict – 75% is ok, no need for unanimity F. Motion for Directed Verdict – motion for non suit if motion made after P goes G. JNOV – not required to make the motion for directed verdict at trial to preserve the right to make this motion H. Motion for new trial XI. Appeal (FRCP) A. Final Judgment Rule – only can appeal final judgments --ultimate decision by trier of fact on merits. Filed w/in 30 days of entry of final judgment. Denial of MSJ-no. Denial of new trial-yes. Denial or grant of motion to remand-no. Denial or grant of RJOML-yes. B. Interlocutory Appeal -can appeal even w/out final judgment. Class actions – ct of appeals has discretion to review certification of class. Must seek review w/in 10 days and does not stay proceedings at trial level unless an order is given. XI. Appeal (Cal Rules) A. Timing – usually earlier of 60 days after mailing of notice of judgment or 180 days after entry of judgment B. Limited Civil Cases – appeals to appellate division of the superior court not the CA ct of appeals C. Interlocutory Review – if not appealable can seek a writ of mandate or writ of prohibition from the cal ct of appeals. Must demonstrate irreparable harm and the normal rout of appeal at final judgment is not adequate. Usually for something like appealing lack of PJ. XII. Claim and Issue Preclusion (Almost the same under Cal Rules and FRCP) A. Apply law of case 1 B. Must raise them in answer as an affirmative defense C. Claim Preclusion – you only have one chance to vindicate all rights to relief for a claim. (1) Same D (2) Final J on the merits – appealability (fed final j, cal no); judgement based on discovery abuse is final judgment (3) Case 1 and 2 assert the same claim or cause of action i. Fed – all rights to relief arising from the same t/o ii. Cal Primary rights Theory – even if in the same t/o, you have a different cause of action for all your primary rights (i.e., property damage and personal injury) D. Issue Preclusion – precludes re-litigation of the same issue already litigated and determined. Narrower than claim preclusion. (1) Valid final judgment on merits (2) Same issue was actually litigated and determined in case 1 (3) Issue was essential to the judgment in case 1 (4) Must be asserted against a party to case 1 as required by due process (5) Who can assert i. Traditional view of mutuality – only by one who was a party to case 1 ii. Nonmutual defensive – D in case 2 using it as a defense to P who was a party in case 1. Permissible as long as the P had a full and fair chance to litigate the issue in case 1 iii. Nonmutual offensive – P in case 2 using it to establish an issue against a D was a party in case 1. Permissible as long as D had full and fair change to litigate in case one, P could foresee multiple suits, and P could not have joined easily in case 1.