Civ Pro CA Distinctions

Greg Branch, Professional Responsibilities Chart Civ Pro AREA PJX Subject Matter JX FRCP CA PERSONAL JURISDICTION Both treat it the same. Both treat it the same. SUBJECT M ATTER JURISDICTION Only jx to hear federal question or Superior Court has general SMJX, it diversity jx case can hear ANY civil case unless exclusive federal JX lies. Federal question Limited: < $25,000 Diversity: > $75,000 Unlimited: > $25,000 Small claims:  Individual P = < $7,500  Corporate P = < $5,000 Court or P can reclassify Transitory Action VENUE P may lay venue in any district where all Ds reside OR a substantial part of the claim arose District in which land lies None Venue proper in county where any D resides at commencement of action Corporations (PPB; K performance; breach occurrence/liability arises) County in which land lies. Contract case: Where the K was entered or to be performed. Personal injury/wrongful death: Venue ok where the incident occurred. D‟s are all non-residents: Anywhere in CA. Original venue proper = transfer to county on which parties agree IF reason to believe impartial trial cannot be had; convenience of witnesses and ends of justice promoted; or no judge qualified to act, but if can‟t agree, then the court chooses. Original venue improper = D files and serves notice + proof of service on P before or with responsive pleading Classifications Local Action Additional Venue Transfer of venue Forum non conveniens Transfer of venue can only go from federal district court to another where there is proper venue and personal jurisdiction over D. Venue in original forum proper: May be transferred to another federal district because of convenience for the parties, witnesses, and “the interests of justice”.  Public Factors (what law applies; burden to community)  Private Factors (location of witnesses/evidence) Allows a court to dismiss the case and let P sue D in a far more convenient court because transfer is impossible “Inconvenient forum” By statute in CA, granted if “interest of substantial justice an action should be heard in forum outside of California”; if granted court may condition on D‟s waiving PJX or SoL. Waived if raised after demurrer or motion to strike but can be raised after an answer. Tort claims-If CA law in conflict with other state law.  If law identical okay.  If no, do they have equal interest? Erie Doctrine CHOICE OF LAW Federal procedural law applies but state substantive law applies. -1- Greg Branch, Professional Responsibilities Chart  SERVICE OF PROCESS Anywhere in forum state; except if D in state as witness or civil case Substituted service can be performed on a resident of the premises of the D‟s usual abode who is of suitable age and discretion. If still no analyze the impairment in each state. Personal Substituted service No witness/civil immunity Only available if personal service cannot with reasonable diligence be had (BAR stressed) (1) Requires: D‟s usual abode/mailing address; competent member of house who is > 18; must be informed of contents; process also mailed by 1st class mail; effective 10 days after mailing (2) Corporations = registered agent, officer, manager; personally or substituted (3) Publication: only after reasonable diligence to serve D another way 20 days, “service” is deemed complete when D executes the waiver) OK in any manner allowed by CA law; by mail Requires service made within 60 days of filing. Waiver by Mai OK by D if process served to D by first class mail and D returns form within 30 days Process served to D in other state; only OK if forum state allows Serving of summons and complaint to D must be made within 120 days of filing and can be served by any non-party at least 18 years of age. If not = dismissal without prejudice. PLEADING Notice pleading (notice of claim; allows for meaningful response) Rule 11 requires attorneys to sign all motions and papers certifying that to her knowledge and belief after reasonable inquiry, the paper is not for an improper purpose, legal contentions are warranted by law, and there are factual contentions (evidentiary support). Court can file and no safeharbor. Geographic Limitation: Service Time General Rule Rule 11 Fact pleading: Pleader must state „ultimate facts‟ (more detail) CA same Court initiation of Rule 11 motion Extra statute allows the court to order a party or his attorney or both to pay expenses and attorney‟s fees incurred by another party because of bad-faith or frivolous tactics in litigation. (frivolous: Completely w/o merit or for sole purpose of harassment)  Punies assessed by court if action by convicted felon & P guilty of fraud, oppression, malice)  NO SAFE HARBOR -2- Greg Branch, Professional Responsibilities Chart Complaint Complaint commences the action and states the subject matter jurisdiction, short and plain statement of the claim (P entitled to relief), and demand for judgment. Must plead facts supporting a plausible claim.  Special matters: fraud, mistake, special damages = plead with particularity Statement of facts, demand for judgment (amount needed);  Exception = Personal injury, wrongful death, punitives (must NOT state amount) but may seek statement of damages; P must provide < 15 days; must serve SoD on D before she can take a default. Fact pleading = Must allege ultimate facts on each element of each cause of action; heightened pleading (fraud, civil conspiracy); verified pleadings (signed under penalty of perjury;  Doe Ds (genuinely unaware of identity + must state cause of action (“charging allegation”) against Doe)  Allows amendment of complaint to add Doe after running of SoL in certain situations. General demurrer pleading (P failed to state facts sufficient to state cause of action; OK to use to challenge SMJX (lack of))  May also be raised in answer as affirmative defenses or asserted in a motion for judgment on the pleadings. Special demurrer pleading (complaint uncertain, motion for more definite statement, unintelligible; NOT available in limited civil cases);  waived if not raised  Demurrers are “sustained” or “overruled” Motion to quash service of summons: To challenge PJ by special appearance or SoP; must be made before/with filing of demurrer/motion to strike or waived (NOT by later answer);  denial = moving party can only seek appellate review by writ of mandate from court of appeal < 10 days Motion to strike: improper, irrelevant; false matter Anti-SLAPP Motion to Strike-“Strategic lawsuits against public participation”: Suits brought to chill the valid exercise Responses (Stressed by Barbri) Lack of SMJX (any time-even on appeal), lack of PJX, improper venue, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief can be granted (before or during trial), failure to join indispensable party (before or during trial) -3- Greg Branch, Professional Responsibilities Chart of free speech and petition. When P sues D for an act D took in furtherance of her free speech right or right to petition the govt on a public issue, D can make an anti-SLAPP motion to strike. 1. If D shows P‟s CoA arises from protected activity, the BoP shifts to the P. 2. Available only if P‟s case is truly in the public interest or on behalf of the general public. Same; 30 days after SoP complete. If demurrer overruled, D must answer < 10 days of ruling. Answer Counter/Cross Claims Cross-claims D serves answer to complaint by: responding to allegations (admit, deny, lack sufficient info)(failure to deny = admission except on damages); raising affirmative defenses (if not plead = risk of waiver thus MUST raise. Counterclaims are offensive claims against an opposing party. Cross-claims are offensive claims against a co-party and must arise from same transactions or occurrences but are never compulsory Cross-complaints against P (must be filed in separate document) Cross-complaints against co-party (same as fed); against co-party (same as fed).  must arise form same T/O; never compulsory; filed in separate document  Cross-complaint against 3PD (see “Impleader”) P may amend before D files answer/demurrer OR after demurrer/before trial is OK as a matter of course  Any party can seek leave to amend anytime (court discretion) usually granted unless delay or prejudice  Amendment to conform to evidence allowed Amended Pleadings Relation Back (1) A P has a right to amend once before D serves his answer.  D must respond within 10 days or amount left on his 20 days, whichever longer (2) A D has a right to amend once within 20 days of serving his answer. (3) If no right = leave of court required and court will grant “if justice so requires” (granted unless delay/prejudice) Changing a D after a statute runs relates back if same transaction or occurrence as original; new D knew of the action within 120 days of filing, and new D knew that but for the mistake it would have been originally named. OK to change D after SoL run if misnomer (P sued wrong D, right D knew about it) Fictitious Ds (Does): Proper if original complaint filed before SOL ran(with Does); P genuinely ignorant of identity of Doe; pleaded ignorance in original complaint “charging allegation” (Relates back if filed < 3 years in order to substitute Ds) “Cross complaint” same, but broader. Indemnity, contribution + any claim Impleader JOINDER OF PARTIES Impleader is a claim involving a 3PD for indemnity or contribution on the -4- Greg Branch, Professional Responsibilities Chart underlying claim and must do so within 10 days after serving answer, after that must seek court permission  P can then assert claim against and vice-versa if same transaction/occurrence (ALWAYS assess SMJX, if doesn‟t work look for supplemental JX) CANT-Commonality, Adequacy of representation, Numerosity, Typicality that 3PD liable if same transaction/occurrence Class Action  Types   Counsel Notice 3 Types: 1) prejudice (necessary to avoid harm); 2) injunctive/declaratory; 3) damages (best way to handle because common questions predominate) Court can appoint class counsel Notice: Type 1 & 2 = no notice; no opt out right; Type 3 = notification required (by mail usually); can opt out and binds all reasonably identifiable members; may appear separately through counsel and court must give members a second chance to opt out. In class actions for damages, the court must notify all reasonably identifiable members, that they can opt out, that the class judgment is binding on all class members, and that they can enter a separate appearance through counsel. Settlement or dismissal of class claims require court approval Under a class action involving diversity of citizenship, only the representative must have diversity and his claim must exceed $75,000. Depends on type of class action suit SCOPE OF DISCOVERY Anything relevant to a claim or defense; relevant is anything reasonably calculated to lead to discovery of admissible evidence. NOT discoverable Requires 1) ascertainable class; 2) well-defined community of interest (common questions predominate; substantial benefit to parties & court; representative is adequate) Types: None Class Counsel: No court appointment of class counsel Notice: NO and can be by publication /cost determined by court   Settlement Amount in controversy Settlement/Dismissal: Approval by court required Amount in controversy: Aggregate class claims  Opt out Opt Out: Court may bind parties who do not opt out Anything relevant to subject matter Relevance Privileged Matter CA: same; responding party objects with particularity identify docs, author, date, special privilege claimed all in privilege log) -5- Greg Branch, Professional Responsibilities Chart Privacy: Not a recognized federal right Recognizes right of privacy (limits discovery) balance the need for discovery v. the need for privacy Allowed only if = unfairly prejudice/injustice); Attorney WP only, unlike federal rules where it could be attorney, party or any rep Any party may request simultaneous exchange of expert witness info which includes: 1) exchange of expert list; 2) declaration of nature and substance of testimony; and 3) expert qualifications (Note: NO disclosure for consulting experts) Same except: No limit on depos unless court orders (time or #) Work Product Experts Work product is generally not discoverable unless the requesting party can show substantial need and it is not otherwise available but are absolutely protected if they are conclusions, opinions, legal theories, or mental impressions. Production of info required about experts used at trial (depo available) Depositions: Interrogatories: DISCOVERY (Party or non-party); sworn oral statements by deponent to Qs (oral/written) by counsel; party‟s attendance compelled by notice of depo; non-party must subpoenaed or else not compelled; one day = 7 hours unless court order/parties agree Qs propounded in writing to another party (NEVER non-party) and answered in writing under oath (w/i 30 days) Request to Produce: Request to party/non-party (within 30 days); available for review and copy docs or things; permit entry on designated property for inspection Physical/Mental Exams: (court order needed): health in controversy + good cause Request for Admission: . request by one party to another party to admit/deny any discoverable matters (NEVER non-party) Duty to Supplement: Party must supplement its response CA: Same. Also form interrogatories (no limit); specific interrogatories (may not contain subparts); maximum number in unlimited = 35, but can request more, if > 35 D can seek protective order. Same except no express permission to party to use those to get info; but possible by taking non-party‟s depo and serve subpoena duces tecum = requires deponent to bring material with her Same + lawyer right to attend if physical but not mental  D has a right to demand 1 physical exam of a personal injury case (no court order required) in unlimited civil case. Same; maximum number in unlimited cases = 35; no limit to admit genuineness of docs; limited cases = 1 depo per party; interrogatories = combined total of 35; addition discovery only with court order; and NO medical exams in limited cases CA: No duty; requesting party can propound “supplemental interrogatories” + can propound -6- Greg Branch, Professional Responsibilities Chart “supplemental demands for inspection” for later/acquired/discovered docs/things. Allowed twice before trial date is set & once after; applicable only in unlimited cases Meet and confer (required unless total failure to respond) and if failure = monetary sanction of expenses including attorney fees;  Total failure=sanction can be sought immediately Enforcing Discovery Rules Violations: Partial violations = receiving party answers some and objects to others and objections not upheld; total violations = receiving party fails completely to attend depos/respond  Note: Before sanctions, party must certify good faith to obtain info without court involvement Sanctions: Partial = Get court order compelling party to answer + cost of bringing motion; if violated order = heavy sanctions + cost + possibly contempt; failure to make required disclosure = other party can elect to treat as partial/total + party in violation cannot use info at trial unless justified/harmless; total = heavy sanctions + costs (no contempt) Heavy Sanctions: Order establishing facts as true; strike pleading regarding pertinent issues; disallow evidence of party regarding pertinent issues; dismiss P‟s case (bad faith shown); OR default judgment (bad faith shown) Misuse of discovery (notice given to person sanctioned) occurs when not playing by rules, unjustified objections, abusive motions, failure to confer, refusal to respond; Sanctions: P party must indicate type it seeks = 1) monetary; 2) establishment order; 3) refusal to allow party to support position with evidence; 4) striking pleadings; 5) default/dismiss the case  P may seek protective order if discovery oppressive or overly burdensomecourt balances CA: P can anytime before trial commences@ court‟s discretion Voluntary Dismisal Involuntary Dismissal ADJUDICATION Voluntary Dismissal-May be allowed on court order (and P may have to pay D‟s costs).  P files written notice of dismissal once without prejudice before D serves answer/moves for SJ  P‟s second written notice of dismissal is done with prejudice (even state claim qualifies). Court discretion if case not brought to trial within 2 years of filing Dismissal for Failure to State Claim (12b6) Court looks at face of complaint (not evidence); assuming all allegations are true the plaintiff would not win a judgment; Must be done before filing an answer (CA: Same) Mandatory dismissal required if not brought to trial < 5 years after filing or process not served < 3 years after filing Failure to plead facts constituting cause of action = a general demurrer -7- Greg Branch, Professional Responsibilities Chart Default judgment Default judgment occurs where D fails to respond within 20 days after service of process. Summary judgment: Granted when there is no need for trial (trials necessary to resolve disputes of fact); moving party must show (in light most favorable to non-MP) that no genuine dispute of material issue of fact, and that he is entitled to judgment as a matter of law; must be filed after the answer. (court can consider evidence, and it usually does) JURY TRIAL Writing, < 10 days after service of last th pleading; 7 A preserves right in civil actions at common law (not equity); if legal and equitable relief, jury on facts underlying legal issues first, then equitable (by judge) (if damages claimed as part of action seeking injunction, D cannot be denied jury) Number of Jurors: No fewer than 6, no more than 12 in civil case; no alternate jurors Must demand in writing no later than 10 days after service of last pleading raising jury triable issue. CA Same Summary judgment: Same standard Burden Shifting: Burden shifts to opposing party to demonstrate triable issues of fact exists; MP must file and serve separate statement of material facts she claims is undisputed with supporting evidence for each fact (also true in fed. Court) Opposing party responds indicating facts she believes in dispute + supporting evidence for each fact CA: 7 A doesn‟t apply but same principles (but court tries equity issues st 1 ) Equity clean-up Doctrine: In equity cases where the P seeks incidental damage, there is no right to jury on incidental damages since the law claims are “incidental” to equity claim. 12 in civil case unless parties agree in open court to lesser number; alternate juror OK Announcement for demand for jury at time case set for trial/5 days after notice of setting of trial; failure = waiver; deposit advance jury fees 25 nd days before trial (each 2 day of trial, deposit of jury fees and mileage) (CA: same); (CA = 6, and broader may not be used on the basis of “race, color, religion, sex, national origin, sexual orientation, or similar grounds) CA: 3/4s of jurors/no need for unanimity CA: Motion for Directed Verdict (CA: same standard) CA: If D moves at close of P‟s opening statement/evidence = motion for non-suit th Right to Jury Trial: Juror Number Requirements Demand Requirement: Selection (Voir Dire): Each side unlimited strikes for „cause‟ each side gets 3 peremptory challenges (race/gender neutral) Verdict: Motion for Judgment As A Matter of Law Unanimity required in federal court; JMOL: Ask court to take away case from jury; direct verdict in MP‟s favor Standard: The court views the evidence in the light most favorable to the non-moving party; No substantial evidence and reasonable person could not disagree as to result  D can move at close of P‟s evidence; close of all evidence  P can move at close of presentation of all evidence only Occurs where the jury reached a conclusion reasonable people could not have reached; must be done at Renewed Motion for Judgment As Matter of Law Judgment notwithstanding the verdict(JNOV)) CA: Party not required to make motion -8- Greg Branch, Professional Responsibilities Chart the close of all evidence (within 10 days of entry, losing party asks court to set aside verdict and enter in its favor) To bring motion, party MUST have moved for JMOL at close of evidence as prerequisite Prejudicial error (decided by judge), new evidence that could not have been obtained with due diligence for the original trial, prejudicial misconduct of party or attorney, judgment is against the weight of the evidence; excessive damages (standard: “shocks the conscience”) must be done within 10 days after judgment. Additur: Adding to amount of damages granted by the jury. Not allowed in federal court: NOT th allowed in federal court (violates 7 A) Remittitur: A judge ruling (usually upon motion to reduce or throw out a jury verdict) lowering the amount of damages granted by a jury. Must give P the choice of new trial or lower damages amount. Allowed in federal court. APPEAL Appeal from federal district court to US court of appeals; Appeals can only be made from final judgments within 30 days after entry final judgment; the court must have nothing left to do on the merits of the case (ultimate decision by TC of merits of entire case) (non-final review): may be appealable even though not final judgments; must seek review w/i 10 days of order for directed verdict at trial Motion For A New Trial: CA: Same except that error resulted in “miscarriage of justice” Additur and Remittitur Additur: CA: Allowed Remittitur: CA: Allowed Appeal: Final judgment rule: Superior Court to California Court of Appeal (limited cases/small claims = appellate division of Superior Court) CA: Same; judgment as to one of several parties = automatically considered final judgment and can be appealed Interlocutory Review Extraordinary Writ: If order not otherwise appealable, aggrieved party may seek: 1) writ of mandate (to compel lower court); or 2) writ of prohibition (to stop lower court)  Writ may issue by any court to inferior court; party seeking writ must demonstrate 1) irreparable harm; 2) normal route of appeal inadequate; 3) beneficial interest in outcome of writ proceeding neither are technically appeals RES JUDICATA AND COLLATERAL ESTOPPEL -9- Greg Branch, Professional Responsibilities Chart Judgment finality Res Judicata Test After court decision Transactional test-Same T/O After appeal Applies minority jx primary right theory. Primary rights include a right to health and a right to property. Thus, one can bring two suits for one car crash: one for life and one for damage to the car. -10-