CA Bar- Civ Pro- Breeden Long Outline Reference (Use with Attack Sheet) (Barbri)

CIVIL PROCEDURE (Reference from CP: Breeden Attack Sheet) ******************************************************************** I. PERSONAL JURISDICTION In what particular state will P be allowed to file suit? FOR BOTH FEDERAL AND STATE: A. B. Need PJ in federal cases, and same rules as CA Two step analysis: 1. Satisfy statute OR 2. Satisfy the Constitution (Due Process) Satisfy Statute (easy to analyze if statute mentioned on BAR) Satisfy Constitution (not as easy and will require analysis on BAR) 1. Pneumonic: “My Parents Frequently Forgot to Read Childrens’ Stories” 2. Summary of Constitutional Test a. Minimum Contacts i. purposeful availment AND ii. foreseeability; AND Fair Play & Substantial Justice b. i. relatedness of contact and claim; AND 1. Specific PJ (this instance) 2. General PJ (continuous and systematic ties to forum) ii. convenience AND iii. state’s interest C. C. 1 CIVIL PROCEDURE ******************************************************************** II. SUBJECT MATTER JURISDICTION Now we know the particular state for a suit, but in federal court or state court? FEDERAL COURT: A. Only 2 types of suits can be heard in Federal Court: 1. Diversity of Citizenship a. 2 requirements must be met: i. “Citizens of different states” a. b. c. Citizenship is the state of domicile “domicile” needs a physical AND mental (intent to make it permanent home) presence in state Only 1 domicile unless a corporation which has a domicile BOTH in the state where it was incorporated AND the one state where the corporation has its principal place of business PPB determined by two tests: i. Nerve center (where decisions are made, usually HQ) ii. Muscle center (where corp. does more stuff than anywhere else) Rarely tested: for unincorporated associations (i.e., LLC) use the citizenship of all its members For decedents, minors, and incompetents, look to THEIR citizenship, not the citizenship of their representative d. e. f. AND ii. Amount in controversy must exceed $75,000 a. Amount is whatever the plaintiff claims in good faith UNLESS it is “clear to a legal certainty” that it is not possible Aggregation i. Adding 2 or more claims to meet amount requirement (where a single P v. single D) ii. For joint claims, use total value of claim Equitable relief (i.e., injunction); Two tests: i. P’s viewpoint, OR ii. D’s viewpoint (if either of these equals the $75,000, the requirement is met) b. c. 2. Exclusions: even if Diversity of Citizenship found, Federal Court will not hear actions involving divorce, alimony or child custody decree or to probate an estate Federal Question a. Complaint must show a right or interest founded substantially on a federal law (“arises under”) b. Well-pleaded complaint rule: Claim is properly pleaded by setting forth only a federal law claim (no extraneous stuff) 2 b. B. C. D. ALWAYS ASK: IS PLAINTIFF ENFORCING A FEDERAL RIGHT? Supplemental Jurisdiction 1. For every claim joined in Federal Court, always ask whether it invokes diversity or FQ 2. If such claim does not meet diversity or FQ, claim may be able to remain in Federal Court under the theory of supplemental jurisdiction if it satisfies the following: 3. Summary of rule: A non-federal, non-diversity claim can be heard in Federal Court if it the claim shares a “common nucleus of operative fact” (claim arises from same T/O) UNLESS claim is: a. Asserted by a P, AND b. In a diversity of citizenship (not FQ) case, AND c. Would violate complete diversity Removal 1. ONLY a defendant can have a case (originally filed in state court) “removed” to Federal district court embracing the state court 2. Case must have SMJ (diversity or FQ) 3. Remove no later than 30 days after service (not filing) OR in a circumstance where a defendant is dismissed and diversity now exists, defendant has 30 days from service of the document that FIRST made the case removable (BUT never more than one year after case filed in state court) 4. All defendants have to agree to remove 5. IN DIVERSITY CASE ONLY: no removal if any defendant is a citizen of the forum 6. Can’t remove back to state unless court remands 7. Removal procedure: a. D files notice of removal in Federal Court (includes grounds for removal, rule 11 signature, copies of all documents served on D in state action) b. D gets a copy to all adverse parties AND files copy of notice in State Court c. If removal procedurally improper, P moves to remand to state court within 30 days of removal; HOWEVER, if removal was improper due to lack of SMJ, P or Federal Court can remand at any time. Erie Doctrine 1. In diversity cases, Federal Court MUST apply state substantive law 2. EASY: these state laws are agreed upon to be substantive a. Elements of a claim or defense b. Statute of limitations c. Rules for tolling statutes of limitations d. Conflict (or choice) of law rules 3. NOT SO EASY: if not one of the easy laws, then ask yourself: is there a federal law on point that directly conflicts with state law? If so, apply the federal law as long as it is valid (FRCP is valid it is “arguably procedural”/ never been held invalid). 3 c. 4. If the law is not an EASY one and there is no federal law on point, then analyze using the following three tests: a. Outcome Determinative (does state law application affect outcome of case/ if so, apply state law) b. Balance of Interests (Does Federal or State have strong interests in having its rule applied?) c. Avoid forum shopping (if state law ignored, will future parties to flock to federal court/ if so, apply state law) STATE COURT: A. The Superior Court in CA (one basic trial court) can hear any civil case with 3 exceptions: 1. Bankruptcy 2. Federal securities and antitrust 3. Patent infringement case Different classification of cases within the Superior Court 1. Limited civil case ($25,000 or less/ atty fees, interest, costs not included) a. Pleadings and discoveries are limited b. Must note in caption of complaint 2. Unlimited civil case (over $25,000) 3. Small Claims case (NOT ON BAR) Reclassification 1. Automatic a. P amends complaint from limited to unlimited (or vice versa), Clerk reclassifies case automatically 2. On Motion: a. Party can move to reclassify or court can opt to do so b. Need following for this to be valid: i. Must be notice to all parties; AND ii. A hearing c. Merits of the claim are irrelevant on this motion and court can consider any pleadings, evidence, etc. d. Standard court uses on reclassifying from unlimited to limited: “matter will necessarily result in a verdict of $25,000 or less” e. Standard court uses on reclassifying from limited to unlimited: “there is a possibility the verdict will exceed $25,000” Multiple Claims 1. Entire case is either limited OR unlimited (not both) 2. If any part is unlimited, all is unlimited 3. Aggregate claims if it is one P and one D B. C. D. 4 CIVIL PROCEDURE ******************************************************************** III. VENUE Now we know the state (PJ) for the claim and whether the suit is a Federal claim or State claim (SMJ), but which venue? FEDERAL COURT: A. B. SMJ tells us that we can take the case to Federal Court, but Venue tells us exactly which federal court Two types of actions: 1. Local actions (ownership, trespass to land) must be filed in district where land lies 2. Transitory actions: plaintiff may lay venue in “any district where…” a. ALL defendants reside (if both in same state but different districts, can lay venue in either district), OR i. Humans: same as domicile ii. Corporations: different from domicile because it resides in all districts where it would be subject to personal jurisdiction (every district it does business in) b. A substantial part of the claim arose Transfer of venue 1. Can only transfer to a venue where case could have been filed: a. Proper venue b. Personal jurisdiction over D 2. If venue in original district is proper, may transfer to another district based upon convenience for parties and witnesses and “interests of justice” (public and private factors) 3. If venue in original district is improper, court may transfer in the interests of justice OR dismiss 4. “Forum Non Conveniens” (probably don’t need to know but it is a situation where the court allows the case to be dismissed and refilled in another court that is more appropriate even though transfer is impossible because it is in a different judicial system (foreign). Requires very strong showing. C. STATE COURT: A. B. C. Any appropriate county in CA If local action (land related), then venue in county where land lies. If transitory action (most on BAR), generally in county where any D resides when case is filed, with these exceptions: 1. Additional venue in contract cases (also county where contract was entered or was to be performed) 2. Additional venue in personal injury or wrongful death cases (also county where injury occurred) 5 D. Corporation/Business: also in county where a. it has its PPB, OR b. where it entered or is to perform a contract, OR c. where the breach occurred or liability arose 4. If non-CA resident, then venue in any CA county Transfer of venue 1. Where original venue improper: a. D files motion to transfer to proper venue 2. Where original venue proper: a. D or court may file motion to transfer to another venue if: i. impartial trial cannot be had ii. convenience on witnesses iii. no judge qualified to act b. Transfer to any county on which parties agree; if parties cannot agree, court will pick one for them 3. Inconvenient Forum (CA statute allows court to dismiss or stay case because far more convenient and appropriate court is in a different judicial system (MI state court/foreign)) 3. 6 CIVIL PROCEDURE ******************************************************************** IV. SERVICE OF PROCESS Now, we know the state (PJ) for the claim; whether the suit is a Federal claim or State claim (SMJ); and the correct venue; but now we have to give the D notice of the claim… FEDERAL COURT: A. In addition to PJ, must give notice to D within 120 days of filing case or is dismissed without prejudice. Deliver to D two things (together known as PROCESS): 1. A summons (formal court notice of suit and time for response) AND 2. A copy of the complaint Who can serve process: Process can be served by any non-party over 18 (does not have to be court appointed) How is process served? 1. Personal service (anywhere in forum state) 2. Substituted service a. Ex: process left with D’s butler at summer home b. OK, if following criteria met: i. D’s usual abode, AND ii. Served someone of suitable age and discretion who resides there 3. Service on D’s agent (as long as within scope of agency) 4. State law (use state’s rules) 5. Waiver by mail (waives only formal service, nothing else) (D must return within 30 days) Geographic limitation: Can serve D in another state as long as forum state law allows (long arm statute) Immunity from service (cannot serve D while in state to be witness or party in another civil case) Subsequent Documents 1. A through E regarding process; however, for serving subsequent papers such as answers, pleadings, etc., simply deliver or mail the document to party’s attorney and allow 3 days for required response (if mailed) B. C. D. E. F. STATE COURT: A. B. Any nonparty at least 18 can serve process (same as Federal) Methods of service: Personal service (same as Federal) 1. 2. Substituted service (much different from Federal) a. Have to try personal service first before using substituted; AND b. D’s usual abode, AND 7 C. D. Must be left with a competent member of the household who is at least 18 (Federal did not require the underlined parts); AND d. That person must be informed of the contents (not required under Federal); AND e. Process must also be mailed by first-class mail, postage prepaid to D (not required under Federal) (Service deemed effective 10 days after mailing) 3. Corporations and other businesses (registered agent) 4. Waiver of service by mail (same as Federal with few distinctions) a. D must return waiver form within 20 days (Federal was 30 days) 5. Service by publication (not available in Federal) (last resort after all else has failed) Service outside CA can be made via mail, postage prepaid, return receipt requested/ deemed complete 10th day after mailing No immunity from service in CA (federal allows immunity if D in state for another trial) c. 8 CIVIL PROCEDURE ******************************************************************** V. PLEADINGS Now, we know the state (PJ) for the claim; whether the suit is a Federal claim or State claim (SMJ); the correct venue; D has notice of the suit; but now we have to file the proper pretrial paperwork… FEDERAL COURT: A. B. Define: documents setting forth claims and defenses (NOTE: pleadings are NOT evidence unless verified pleadings) Rule 11 (meant to deter bad behavior of attorney) 1. Requires attorney to sign all pleadings, written motions, and papers (except discovery documents, which are treated by another rule) 2. By signing, attorney is certifying that to the best of his knowledge and belief, “after reasonable inquiry”: a. No improper purpose b. Legal contentions warranted by law c. Facts and denials have evidentiary support 3. Motion for Rule 11 violation served on party (by court or by opposing party) but not filed with court. Gives violating party 21 days (safe harbor) to withdraw the document or fix problem. If resolved, Rule 11 will not be filed. Complaint 1. Principal pleading by plaintiff. Action starts when filed. 2. Requirements of complaint: a. Statement of SMJ; AND b. Short and plain statement of claim, showing entitled to relief; AND c. Demand for judgment 3. 2007 Supreme Court standard for detail of complaint: “Must state facts supporting a plausible claim” 4. Special matters (fraud, mistake, and special damages) MUST be pleaded with particularity or specificity Defendant’s Response 1. Within 20 days after service of process, D must respond in one of two ways (per Rule 12): a. By motion; OR i. Motions are not pleadings but are requests for a court order ii. Issues of Form Motions a. b. Motion for more definite statement (too vague) Motion to strike (aimed at immaterial things such as demand for jury when no right exists) C. D. iii. Rule 12(b) Defenses (can be raised by motion or within the answer) a. Lack of SMJ (never waived, even on appeal) 9 b. c. d. e. f. g. Lack of PJ (waived if don’t put in 1st response) Improper Venue (waived if don’t put in 1st response) Insufficiency of Process (paperwork) (waived if don’t put in 1st response) Insufficient Service of process (waived if don’t put in 1st response) Failure to state a claim (available through trial only) Failure to join indispensable party (available through trial only) b. By answer i. Answer is a pleading ii. Timing a. b. c. If D makes NO motions, D must serve answer within 20 days after service of process If D makes motion and denied, D must serve answer within 10 days after court rules on motion If D waives service, D has 60 days from P’s mailing of waiver form in which to answer Respond to allegations of complaint 1. admit 2. deny; OR 3. state that you lack sufficient information to admit or deny (can’t use this response if info is public knowledge or in defendant’s control) 4. Failure to deny can constitute an admission on any matter except damages Raise affirmative defenses 1. These defenses saying “even if I did all the terrible things plaintiff says, plaintiff cannot win” 2. Affirmative defenses are statute of limitations, statute of frauds, res judicata, self defense iii. What to include in answer a. b. E. F. Counterclaim 1. Claim against opposing party and filed with D’s answer; Two types: a. Compulsory i. Arises from same T/O (transaction/occurrence) as P’s claim ii. Must be filed in pending case or it is waived iii. Cannot be asserted in another action b. Permissive i. Does not arise from same T/O as P’s claim ii. May file it with answer or file separate claim 2. If procedurally OK, then ask whether it invokes Diversity or FQ jurisdiction. If so, no problem. If not, try supplemental jurisdiction. (must satisfy TEST and limitation from II(B) above) Cross-claim 1. Claim against a co-party and must arise from the same T/O as underlying action 2. Never compulsory 10 G. Has to invoke Diversity or FQ jurisdiction or qualify for supplemental jurisdiction (see II(B) above) Amending Pleadings 1. Right to amend a. P has right to amend once before D serves answer (D must respond within 10 days or the amount of time remaining on his 20 days, whichever is longer) b. D has right to amend once within 20 days of serving his answer 2. If there’s no right to amend a. Court may consider if “justice so requires” b. Court will look at these factors in deciding: delay and prejudice 3. Variance a. When evidence at trial does not match what was pleaded (i.e., new claim of assault along with evidence), we want pleading to reflect what was tried 4. Amendment after the statute of limitations has run (“relation back”) a. A new claim can be joined (even if SOL run) if new claim concerns same T/O as original pleading b. “Relation back” means you treat the amended pleading as though it was filed when the original was filed c. A defendant can be changed after the SOL has run ONLY IF the following 3 criteria is satisfied: i. Concerns same T/O as original New party knew of action within 120 days of its ii. filing; AND iii. New party also knew that, but for a mistake, she would have been named originally 3. STATE COURT: A. B. Terminology differences from Federal Court CA uses “fact pleading” instead of “notice pleading” 1. This means that a lot more detail is required in the CA pleadings than in Federal Frivolous litigation: CA has two statutes in practice: 1. One that mirrors Rule 11 with one exception: 21 day safe harbor applies not only in motions brought by party but when court raises issue on its own 2. Another statute allows court to order a party to pay the expenses and atty fees of another party due to bad faith or frivolous tactics in litigation (no safe harbor and has to be during litigation) Complaint 1. Contents: a. Statement of facts constituting the cause of action C. D. 11 E. Demand for judgment (P does not need to allege SMJ because state court hears all cases unless one of the exceptions) c. Must state “limited” if P chooses this classification d. P must state the amount damages. However, P cannot state the amount in the following: i. Personal injury ii. Wrongful death iii. Claim for punitive damages (malice, oppression, fraud) e. If damages not stated on complaint, then how is D to know the amount claimed? i. D may request P’s statements of damages (SOD) ii. P must provide SOD within 15 days of request iii. P must serve SOD on D before taking his default 2. REMINDER: CA requires “fact pleading” which means a the fact for each element of a claim must be alleged 3. Heightened Pleading: if complaint alleges following things, must be even more factual and particular: a. Fraud (MOST COMMON ON BAR) b. Civil conspiracy c. Tortious breach of contract d. Unfair business practices e. Product liability claims w mult. D’s resulting from toxins 4. Verified Pleading: (under oath and can be used as affidavits/ if verified complaint, then D must verify answer) 5. Fictitious Defendants: (BARBRI FEELS VERY IMPORTANT FOR THIS BAR SINCE IT IS DIFFERENCE FROM FEDERAL) a. if P is genuinely unaware of D’s ID, P may name the D as “Doe” b. P must still state the cause of action against Doe c. Not allowed in Federal court d. SOL does not apply (within reason) if P later finds Doe’s real name Defendant’s Response 1. D must respond within 30 days of process (no extra time if waive via mail as in Federal) 2. General Demurrer (similar to Federal “motion to dismiss”) a. D can respond with this instead of an answer b. Under the Gen. Demurrer, D can assert the defense of “Failure to allege facts constituting a cause of action” c. This defense may be prime opportunity for the BAR to do a crossover question since the demurrer or response would have to detail the elements of the cause of action d. Can raise this defense in an answer instead e. Considered a pleading even though it works like a motion f. Either sustained or overruled (not granted or denied) 3. Special Demurrer a. Can use to assert many defenses: 12 b. F. Complaint is uncertain, ambiguous or unintelligible (like federal “motion for more definite statement”) ii. Complaint is unclear about which theories of liability are asserted against each of the Ds iii. Lack of legal capacity iv. Existence of another case between the same parties on the same cause of action v. Defect or misjoinder of parties vi. Failure to plead whether a contract is oral or written vii. Failure to file a certificate (required to sue for professional negligence) b. These defenses can be raised in answer as well, but if not in answer or special demurrer, they are waived 4. Motion to Quash Service of Summons a. This is used to assert any or all of these defenses: i. Lack of PJ ii. Insufficient process iii. Insufficient service of process b. No motion to dismiss for lack of PJ is available in CA courts so this is how it is done c. This motion MUST be made BEFORE or WITH the filing of a demurrer, motion to strike or answer, or else D waives the defenses d. If court denies, moving party can ONLY seek appellate review by writ of mandate from the Court of Appeal within 10 days of service of denial (not able to raise after case) 5. Motion to strike a. CA has an Anti-SLAPP motion i. Strategic lawsuits against public participation ii. Suits brought to chill the valid exercise of free speech and petition iii. D must show that P’s cause of action arises from protected activity (burden on P to show probability of prevailing on the merits/ very hard to prove) iv. So many of these motions filed that CA limited their use v. If this case brought by P is truly in public interest or on behalf of general public, then D cannot use this motion vi. If D wins motion, can then sue P for malicious prosecution in what is called a SLAPPback suit 6. Answer a. Very similar to Federal b. No later than 30 days after service of process Claims by Defendant 1. Similar to Federal but different names Cross-complaint against P (same as Federal counterclaim) 2. a. Filed before or at same time of answer b. Against opposing party 13 i. G. Compulsory if it arises from same T/O as P’s claim against D (same as Federal) 3. Cross-complaint against co-party (same as Federal cross-claim) a. Filed anytime before court has set a trial date b. Claim against co-party c. MUST arise from same T/O as underlying dispute d. NEVER compulsory 4. Cross-complaint against third party defendant (TPD) (same as Federal impleader) a. Same rules as Federal except: i. Right to join TPD broader in state court ii. Not just for contribution or indemnity (as in Federal) but any claim where it arises from same T/O as underlying dispute b. Filed anytime before court has set a trial date c. NEVER compulsory d. Respond within 30 days (Federal is 20) e. If served on TPD that has not appeared in the case, must be served with a summons Amended Pleadings 1. P has right to amend before D files answer or demurrer (exception: right to amend in response to demurrer once before trial) 2. If demurrer or motion is sustained “with leave to amend”, it is same as “without prejudice” (“without leave to amend” is opposite) 3. Relation back for new claims and for adding new defendants SAME as Federal 4. Relation back and Fictitious Defendants (BARBRI FEELS THIS MAY BE A TARGET FOR BAR) Need 4 things: a. Original complaint filed before Statute of Limitations ran and contained charging allegations against the fictitious defendants; AND b. P was genuinely ignorant of ID of Doe Defendant; AND c. P pleaded that ignorance in original complaint; AND d. If P substitutes D within 3 years of filing, it relates back and no SOL problem c. 14 CIVIL PROCEDURE ******************************************************************** VI. JOINDER Now, we know the state (PJ) for the claim; whether the suit is a Federal claim or State claim (SMJ); the correct venue; D has notice of the claim; the proper pleadings have been filed; but now we have to make sure there are not additional parties to be included in the suit… FEDERAL COURT: A. What parties can be joined? Their claims must: 1. Arise from same T/O 2. Raise at least one common question Always assess SMJ as well Necessary and indispensable parties 1. Some absentees (nonparties) MUST be forced to join the case 2. An absentee is necessary IF: a. without A, the court cannot accord complete relief (to prevent multiple suits) b. (MOST COMMON) A’s interest may be harmed if he isn’t joined; OR c. A claims an interest which subjects a party to multiple obligations 3. Cannot force joint tortfeasors 4. Even if necessary, joining A still has to be “feasible” (PJ over him and joining him will not make it impossible to maintain diversity) 5. If not feasible, court can either proceed without A or dismiss the case. Makes this decision by looking at following 3 factors: a. Is there an alternative forum available? b. What is the actual likelihood of prejudice? c. Can the court shape relief to avoid that prejudice? HINT: JOINDER RULES THAT START WITH “C” (COUNTERCLAIM AND CROSS-CLAIM) ARE CLAIMS BETWEEN PRESENT PARTIES. CLAIMS THAT START WITH AN “I” INVOLVE JOINING SOMEONE NEW TO THE CASE Impleader (third party practice) 1. Party wants to bring in someone new (TPD: third party defendant) (indemnity or contribution to party on claim) 2. Right to implead within 10 days after serving answer; after that, need court permission 3. Procedure: file 3rd party complaint; service process on TPD (must have PJ) Intervention (NEVER on BAR) 1. Situation where Absentee choices to join pending suit Interpleader (NEVER on BAR) 15 B. C. D. E. F. G. H. One holding property forces all potential claimants into a single lawsuit to avoid multiple litigation and inconsistency 2. See page 21 of Civ Pro outline for details The Class Action 1. Representatives sue on behalf of group 2. Initial requirements needed: (Nobody Can Tell Rich Anything) a. Numerosity (no magic number but mention argument) b. Commonality (some questions of law/fact in common to class) c. Typicality (rep’s claims/defenses typical to those of class) d. Representative is Adequate (rep will fairly and adequately represent class) 3. Class Action case must be 1 of 3 types: a. Prejudice (NEVER ON BAR) (necessary to avoid harm to class members or party opposing class) b. Injunction or declaratory judgment (not damages) sought because class was treated alike by other party (i.e., employment discrimination) c. Damages Class Action (MOST COMMON) i. Criteria 1. 2. Common questions PREDOMINATE over individual questions; AND Class action is the superior method to handle the dispute Court must determine “at an early practicable time” whether to “certify” the case to proceed as a class action Once certified, court must “define the class and the class claims, issues, or defenses” and appoint a class counsel Court must notify class of pendency of Damages class action (not a or b class actions), including individual notice (usually by mail) to all reasonably identifiable members telling them 3 things: a. they can opt out b. they’ll be bound if they don’t; AND c. they can enter separate appearance through counsel Representative pays for cost of notice 1. ii. Certify (same for all class actions) 1. 2. ii. Notice: 1. 2. iii. iv. Who’s bound by judgement? All class members except those who opt out (no right of opt out on a or b class actions) What’s involved in settling or dismissing class actions? 1. 2. 3. Court approval required Court gives notice of settlement or dismissal to all class members for their feedback If “Damages” class action, Court must give members a second chance to opt out 4. Class Action SMJ a. If FQ, no problem 16 b. c. If Diversity, then look ONLY to the representative (and not the other class members) to determine class citizenship AND amount in controversy Class Action Fairness Act of 2005: makes it easier to satisfy SMJ if any class member is of diverse citizenship from any defendant AND the aggregated claims exceed $5,000,000, then Diversity satisfied STATE COURT: A. Almost exactly like Federal with two exceptions: 1. Call cross-complaint instead of impleader 2. Class Action works much differently Class Action Differences 1. Statute has vastly different language than Federal Rule 2. Two requirements for Class Action in CA a. Ascertainable class b. “Well defined community of interests”; to determine if this exists, Court considers the following: i. whether common questions predominate ii. whether class creates efficiency to parties and court iii. whether rep is adequate 3. No separate classes (unlike Federal) 4. Individual notice NOT required; can be by publication (unlike Federal) 5. All class members not opting out are bound 6. CA does not require court to appoint counsel 7. Settlement/Dismissal must be approved by court (same as Federal) 8. BIG DIFFERENCE: CA aggregates the class claims in determining the amount in controversy (Federal just looks at rep) B. 17 CIVIL PROCEDURE ******************************************************************** VII. DISCOVERY Now, we know the state (PJ) for the claim; whether the suit is a Federal claim or State claim (SMJ); the correct venue; D has notice of the claim; the pleadings have been filed; appropriate parties are joined to the suit; but now the parties need more info from each other in order to prepare for trial… FEDERAL COURT: A. Required Disclosures (NEVER ON BAR) 1. Materials that must be produced even though no one asks for it a. Initial disclosures (within 14 days of Rule 26f conference) must ID persons and documents disclosing party may use to support its case as well as computation of damages and insurance for any judgment b. Experts c. Pretrial (no later than 30 days before trial, must give detailed info about trial evidence, including documents and ID of witnesses to testify live or by deposition) Discovery Tools (NOT ON BAR SINCE 1989) 1. May not be used until after Rule 26f conference unless court order or stipulation allows 2. Types: a. Depositions i. Questions are oral or written ii. Can depose nonparties OR parties (however nonparty should be subpoenaed or she is not compelled to attend) iii. Cannot take more than 10 depositions or depose the same person twice without court approval iv. Cannot exceed one day of seven hours unless court approval v. Can use at trial: a. b. c. to impeach deponent any purpose if deponent is adverse party any purpose if deponent (regardless of whether a party) is unavailable for trial unless absence procured by party seeking to introduce evidence B. b. Interrogatories i. Questions propounded in writing to another party ii. Answered under oath iii. Must respond with answers/objections within 30 days iv. Cannot serve more than 25 (including subparts) without court order 18 C. D. Requests to produce i. Requests to another party (or to non-party if accompanied by subpoena) requesting she make available for review and copying various documents/things ii. Must respond within 30 days of service stating that material will be produced or stating objection d. Physical or mental examination i. ONLY available thru court order e. Request for admission i. A request by one party to another party to admit the truth of any discoverable matters (used in a lot of authentication document stuff) 3. Signing under oath a. Rule 11 does not apply to discovery docs (different rule) b. Every discovery request and response signed by counsel certifying: i. it is warranted ii. not interposed for improper purpose; AND iii. not unduly burdensome 4. Duty to Supplement (MAY BE ON BAR) a. If party learns that its response to discovery is incomplete OR incorrect, she MUST supplement her response even if not asked Scope of Discovery (NOT on BAR since 1990s) What information can we get through discovery? 1. Standard: Can discover anything “relevant to a claim or defense” 2. Relevant means “reasonably calculated to lead to the discovery of admissible evidence” (MUCH broader than “admissible”)/ just for discovery/ not same rules 3. Privileged matter is not discoverable 4. Work Product protected from discovery a. Material prepared in anticipation of litigation b. A witness statement (if work product) may be admissible IF: i. there is a substantial need for it ii. not otherwise available c. Mental impressions, opinions, conclusions, and legal theories ALWAYS protected d. Does not have to be generated by lawyer (just rep of party) 5. Experts (parties required to produce info on experts to be used and party may take deposition of any expert Enforcement of discovery rules (NOT on BAR since 1980s) 1. 3 main ways discovery problems are presented to court a. Protective order (person receiving request says request is overburdensome or involves trade secrets) b. Partial violation i. Answers some and objects to others, if objections not upheld, this is partial violation 19 c. ii. Can get order compelling party to answer plus costs OR can ask for following sanctions: 1. 2. 3. 4. 5. establishment order (establish facts as true) strike pleadings of the disobedient party disallow evidence from the disobedient party (as to issues re discovery) dismiss P’s case (if bad faith shown) enter default judgment against D (if bad faith shown) c. Total violation (fails to attend deposition, respond to interrogatories, etc.) i. no need to compel…go directly to sanctions above STATE COURT: A. B. NO Disclosures required in CA Discovery tools: 1. Depositions (same basics as Federal except no time limit on deposition or limit on number of depositions) 2. Interrogatories (same basics as Federal) a. CA has form interrogatories (no limit on how many) b. If party drafts their own, only 35 questions allowed with no subparts (can include more questions if you attach a declaration supporting the need for more/ the receiving party can seek a protective order if it is too burdensome) 3. Requests to produce a. CA does not expressly allow this to get discovery things from a non-party (Federal allows as long as accompanied by a subpoena) b. There is way to get this from a non-party…serve non-party with a subpoena duces tecum at the deposition Discovery in Limited Cases 1. Only 1 deposition allowed per party 2. Only combined total of 35 interrogatories, inspection demands, and requests for admission allowed per party 3. No additional discovery allowed unless court order Supplemental Discovery 1. Unlimited cases ONLY 2. No duty to supplement discovery responses in CA (unlike Federal) 3. The requesting party can propound supplemental interrogatories or supplemental demands for inspection which elicit later acquired info/things Scope of Discovery 1. CA has broader standard: can discover anything “relevant to the subject matter involved in the pending action” 2. Relevant: (same as Federal) 3. Privileged matter not discoverable (same as Federal) 4. Privacy (BIG DIFFERENCE) a. CA Constitution recognizes right to privacy, which may limit discovery C. D. E. 20 F. In determining whether to allow discovery, the Court will balance the need for discovery against the need for privacy 5. Work Product (BIG DIFFERENCE) a. Work product in CA MUST be generated by an atty or her agent (Federal allows work product by anyone) b. Work product in CA can include material not generated in anticipation of litigation (Federal does not) c. As with Federal, a writing that reflects an attorney’s impressions, conclusions, opinions, or legal research is never discoverable All else is almost same as Federal b. 21 CIVIL PROCEDURE ******************************************************************** VIII. PRETRIAL ADJUDICATION Now, we know the state (PJ) for the claim; whether the suit is a Federal claim or State claim (SMJ); the correct venue; D has notice of the claim; the pleadings have been filed; appropriate parties are joined to the suit; discovery has been done; but now the suit may still be dismissed before trial… FEDERAL COURT: A. Voluntary Dismissal 1. P may voluntarily dismiss by filing a written notice of dismissal without prejudice before D services her answer or a motion for summary judgment 2. P can refile; however, if dismiss second case by written notice, it is dismissed WITH prejudice and cannot refile Default and Default Judgment 1. Claimant gets Default if fail to respond within 20 days after service of process 2. Default does not entitle claimant to recovery. Still need a judgment. 3. The Court Clerk can enter a judgment if all of these are true: i. D made no response at all ii. The claim itself is for a sum certain of money iii. Claimant gives an affidavit (sworn) of sum owed; AND iv. D is not a minor or incompetent Failure to State a Claim (AKA “motion for judgment on the pleadings”) 1. D can move to dismiss for failure to state a claim 2. Standard: Court assumes all allegations are true and asks this question: if P proved all she has alleged, would she win a judgment? 3. Court does not look at evidence on this motion Summary Judgment 1. Moving party must show a. there’s no genuine dispute as to material issue of fact, AND b. that she is entitled to judgment as a matter of law 2. Can ask for partial summary judgment on one of claims if many 3. Court looks at evidence for this motion B. C. D. STATE COURT: A. B. CA court has discretion to dismiss if case hasn’t been brought to trial within 2 years after filing CA court MUST dismiss (mandatory dismissal) any case not brought to trial within 5 years of filing AND any case where process has not been served within 3 years of filing 22 CIVIL PROCEDURE ******************************************************************** IX. CONFERENCES AND MEETINGS Now, we know the state (PJ) for the claim; whether the suit is a Federal claim or State claim (SMJ); the correct venue; D has notice of the claim; the pleadings have been filed; appropriate parties are joined to the suit; discovery has been done; the suit was not dismissed; but now we have some pretrial meetings and conferences to attend to… FEDERAL COURT: A. Rule 26f conference (NEVER ON BAR) 1. Occurs 21 days before scheduling conference for parties to discuss claims, defenses, and settlement 2. Must form discovery plan and present to court in writing within 14 days Scheduling Order (NEVER ON BAR) 1. Court enters an order scheduling cut-offs for joinder, amendments, motions, etc. Pretrial Conferences (RARELY ON BAR) 1. Determines issues to be tried and evidence to be used 2. Order from pretrial conference supersedes pleadings 3. Tries to prevent surprises at trial B. C. STATE COURT: A. B. No Rule 26f conference in CA Case management conference requirement in CA within 180 days after filing complaint: court reviews service, pleadings, discovery,/ put together a case management statement/ and court issues order based on statement 23 CIVIL PROCEDURE ******************************************************************** X. TRIAL, JUDGMENT AND POST-TRIAL MOTIONS Now, we know the state (PJ) for the claim; whether the suit is a Federal claim or State claim (SMJ); the correct venue; D has notice of the claim; the pleadings have been filed; appropriate parties are joined to the suit; discovery has been done; the suit was not dismissed; the parties attended their pretrial conferences and meetings; so now we are at trial… FEDERAL COURT: A. Jury Trial 1. Juries determine FACTS and are instructed on the law by the judge 2. Right to a jury trial in federal court (7th Amendment) a. Applies ONLY in federal court for “civil actions at law” but not in suits at equity b. Example of law claim: $ damages c. Example of equity claim: injunction to tear down home 3. Must demand jury trial in writing no later than 10 days after service of last pleading raising jury triable issue 4. Jury selection: a. Unlimited strikes for cause (bias, prejudice, etc.) b. 3 peremptory strikes (cannot be used for race or gender) 5. Jury selection is a “state action” (see Con law info) 6. No fewer than 6 jurors and no more than 12 7. Motion for judgment as a matter of law (AKA directed verdict) a. Takes case away from the jury b. D can move twice: at close of P’s evidence & at close of all evidence c. P can only move at close of all evidence d. Standard for granting motion: Reasonable people could not disagree on the result e. Court views evidence in light most favorable to nonmoving party 8. Renewed motion for judgment as a matter of law (old name: judgment notwithstanding the verdict) a. Once verdict is reached by jury, losing party files this motion b. Move within 10 days of entry of judgment c. Same standard as #7 d. IF YOU DID NOT MOVE FOR #7 AT TRIAL, YOU CANNOT BRING THE RENEWED MOTION/ WAIVED IT 9. Motion for New Trial (NOT ON BAR SINCE 1996) a. Judgment entered but errors at trial require a new trial 24 10. Move within 10 days after judgment Grounds: i. Prejudicial error at trial makes judgment unfair ii. New evidence that could not have been obtained with due diligence iii. Prejudicial misconduct of party or attorney or third party or juror (MOST COMMON ON BAR) iv. Judgment is against the weight of the evidence v. Excessive or inadequate damages d. Grant of new trial less radical than grant of #8 because both parties still have chance to prevail Motion to set aside judgment (NEVER ON BAR) b. c. STATE COURT: A. Jury Trial 1. CA Constitution also has a right to a jury trial; however, unlike Federal, the court will try the equity issues first (Federal has the law issues tried first with the jury) 2. In CA, if damages are merely incidental, the Equity Cleanup Doctrine is applied which states that if the case is mostly about equity, not eligible for jury trial 3. CA only requires ¾ of jurors to agree to convict/ Federal requires unanimous Jurors 1. Number of jurors is 12 in CA with alternate jurors (unlike Federal) 2. Each party entitled to 6 peremptory challenges and unlimited challenges for cause (Federal only allows 3 peremptory) 3. Peremptory challenges cannot be based on “race, color, religion, sex, national origin, sexual orientation, or similar grounds” (Federal limited it to just race and gender) Motion for directed verdict (Federal “motion for judgment as a matter of law”) Same as Federal 1. If D moves for this at close of P’s opening statement or at close of P’s evidence, it is often called “A motion for non-suit” Motion for judgment notwithstanding the verdict (Federal “Renewed motion for judgment as a matter of law”) 1. Same as Federal except it is NOT waived if you do not move for a directed verdict during trial Motion for new trial (Very similar to Federal) 1. If jury reached conclusion reasonable people could not have reached/ or verdict “shocks the conscience” 2. To avoid a new trial, the court might order one of the following: (BAR POTENTIAL THIS YEAR) a. Remittitur (OK in Federal and CA): Gives P choice of taking lesser figure (set by court) or having new trial b. Additur (OK in CA but Unconst. In Fed/7th Amend): Gives D choice of paying greater amount in damages (set by court) or else having new trial 25 B. C. D. E. CIVIL PROCEDURE ******************************************************************** XI. APPEAL Now, we know the state (PJ) for the claim; whether the suit is a Federal claim or State claim (SMJ); the correct venue; D has notice of the claim; the pleadings have been filed; appropriate parties are joined to the suit; discovery has been done; the suit was not dismissed; the parties attended their pretrial conferences and meetings; the trial is finished; but now a party wants to appeal… FEDERAL COURT: A. B. Appeal from the Federal District Court (trial) to the US Court of Appeals Final Judgment Rule: 1. Can only appeal from final judgments 2. File notice of appeal in trial court within 30 days after entry of final judgment 3. How do you know if it is a final judgment? a. b. c. d. e. Ask: after making this order does the trial court have anything left to do on the merits of the case? If so, its not final. Deny motion for summary judgment: NOT FINAL Grant of motion for new trial: NOT FINAL Grant of motion to remand to state court: NOT FINAL Grant renewed mot. For j. as a matter of law: YES C. Interlocutory (non-final) review 1. Class action. Court of appeals has discretion to review order granting or denying certification of class action. a. b. c. Must seek review within 10 days of order Appeal does not stay proceedings at trial court File petition in Court of Appeals STATE COURT: A. B. C. In CA, appeal from the Superior Court to the CA Court of Appeal (not plural) Judgments in limited civil cases and small claims are appealed to the appellate division of the Superior Court Final Judgment Rule (same as Federal) 1. Cannot appeal until the merits of the entire action are resolved 2. CA allows a judgment to one of several parties to be considered a final judgment and appealable (even though trial still goes on for co-party) Interlocutory (non-final) review: 1. Extraordinary Writ: very rare a. If order is not otherwise appealable, the aggrieved party may seek a writ of mandate (to compel a lower court to do something the law requires) or prohibition (to stop a lower court from doing something the law does not allow) b. Not an appeal…separate proceeding in appellate court 26 D. CIVIL PROCEDURE ******************************************************************** XII. CLAIM AND ISSUE PRECLUSION Now, we know the state (PJ) for the claim; whether the suit is a Federal claim or State claim (SMJ); the correct venue; D has notice of the claim; the pleadings have been filed; appropriate parties are joined to the suit; discovery has been done; the suit was not dismissed; the parties attended their pretrial conferences and meetings; the trial is finished; appeals are happening…but now there are other cases being filed regarding this same claim and issues… FEDERAL AND STATE COURT: A. General: 1. Arises when there has been a similar earlier case 2. Question to ask: whether a judgment already entered (Case 1) precludes litigation of any matters in another case (Case 2) 3. The court system (federal or state) that heard Case 1 will be responsible for deciding the claim and issue preclusion regarding Case 2 4. If Case 1 has been appealed (or time for appealing has not expired), claim and issue preclusion can be applied in Federal court, but NOT in state court 5. Claim and issue preclusion are affirmative defenses that should be raised in the answer. 6. These issues usually arise on the BAR in the context of a motion for summary judgment (NOT SURE WHY, SO ASK SOMEONE!) Claim preclusion (AKA res judicata) 1. Idea that you only get to sue on a claim once 2. For claim preclusion, must show 3 things: a. Same parties b. Case 1 ended in valid final judgment on the merits (on the merits would not include a final judgment based on jurisdiction problems or venue problems or indispensible parties) (would include final judgment based on discovery abuse) c. Same claim; “claim” means: i. Federal: all rights to relief arising from T/O ii. CA: primary rights theory: you get one claim for each right invaded (exception: in contracts, all breaches up to the point of filing are one claim, not separate) d. Claimant won Case 1, res judicata called MERGER e. Claimant lost Case 1, res judicata called BAR 27 B. C. Issue preclusion (AKA collateral estoppel) 1. Much narrower than claim preclusion 2. Precludes retrying particular issue that has already been determined in a prior case 3. For issue preclusion, must show 5 things: a. Case 1 ended in a valid final judgment on the merits (same as claim preclusion) b. Same issue was actually LITIGATED and determined in Case 1 (default judgment is not litigation) c. Issue was essential to judgment in Case 1 d. Against Whom? Issue preclusion can only be asserted AGAINST one who was a party to Case 1 (or who was represented by a party) (REQUIRED BY DUE PROCESS) e. By Whom? Traditionally, Issue preclusion can only be asserted BY one who was a party in Case 1. Some courts allow “nonmutual” where a party in Case 2 was not a party in Case 1. Courts look to following factors in determining if this would be fair: i. Did original parties have full and fair opportunity to litigate the issue ii. Could original parties have foreseen multiple suits iii. Could new party in Case 2 not have easily joined Case 1 iv. Are there any inconsistent judgments on the issue? FOCUS AREAS FOR BAR: 1. PJ 2. Preclusion (raise in Federal or State Court) 3. Federal SMJ (especially diversity and supplemental) 4. Removal (State and Federal and can test diversity) 5. Pleadings (especially D’s response) demurrer, etc. 6. D’s claims 7. Fictitious D’s 8. Discovery (especially supplemental responses/ scope of discovery) 28