California Civil Procedure

Question 1

Personal Jurisdiction

Answer 1

Can P sue D in CA?
Satisfy state statute
Satisfy due process/constitution

Same as Fed

Statutory Analysis
“The statute reaches the constitutional limit”

Constitutional Analysis
Contact, Relatedness, Fairness
Purposeful availment with interactive website, likely not passive website

Question 2

SMJ: Superior Court

Answer 2

General subject matter jurisdiction
Almost ALL civil cases
Includes most cases arising under federal law

Question 3

Limited civil case

Answer 3

$25,000 or less
Limited discovery
cannot file a “special demurrer,”
and have expedited jury trial
Generally no permanent junction, declaratory judgment
NO CLAIMANT CAN RECOVER MORE THAN $50,000

Question 4

Unlimited civil case

Answer 4

Damages over $25,000 or equitable relief
Unlimited recovery if exceeds $25,000

Question 5

Small Claims case

Answer 5

Individual: $10k or less
Entity: $5k or less

Question 6

Classification of the case set by

Answer 6

Plaintiff initially sets classification with the claim alone
Note limitation in caption of complaint for limited

Question 7

Reclassification

Answer 7

SMJ not lost, just reclassified

Automatic:
Plaintiff changes complaint, automatic

On motion:
Hearing required and notice to all parties

Court can look beyond pleadings

From unlimited to limited ok if:
Verdict will necessarily result in $25k or less
$25k virtually unobtainable

Limited to unlimited:
Could go over $25k

Answer could automatically change it if cross complaint

Question 8

Venue

Answer 8

Local actions – Involving land
Venue in county where land lies

Transitory actions – All other actions
Rules:
County where any D resides when case filed
Contract cases – Where K entered into or to be performed
Personal injury or wrongful death – Where injury occurred
Corporation – PPB or under contract/personal injury rules
Unincorporated business – PPB or residence of any member or partner
Mixed claims – whatever is the more important relief

Question 9

Transfer of Venue on Motion

Answer 9

Original venue improper – transfer to proper venue
With or before the answer, demurrer, or motion to strike

Original venue proper – transfer in the interest of justice or no judge qualified to act in the present county

If parties don’t agree on transferee county:
The Court will decide the county

Question 10

Venue Selection Clauses

Answer 10

Only enforced if selected venue proper

Question 11

Forum Non Conveniens/Inconvenient Forum

Answer 11

Can’t transfer outside of system so use this
Far more convenient court in another judicial system
Interest in substantial justice, should be heard in forum outside CA
—Same factors as fed
—May grant on condition (waive PJ, SoL, etc)

Question 12

Service of Process: Substituted service

Answer 12

Only used if not possible to do personal

Requirements:
Usual abode
Competent member of the household over 18
Person must be informed of the contents
And prepaid first class mail send process

Effective on 10th day after mailing

Question 13

Service of Process: Serving by mail

Answer 13

Includes self-addressed stamped acknowledgement to return to P
Like waiver but considered service
D has 20 days to return form
Service is deemed complete when D executes waiver

Question 14

Service of Process: Service by publication

Answer 14

Absolute last resort

Question 15

Service of Process: Serving process outside CA

Answer 15

Any in-state method
Prepaid mail return receipt requested (no acknowledgement form needed)
D must sign receipt it was received
Effective on 10th day after mailing

Question 16

Service of Process: Subsequent documents

Answer 16

Mailed, add 5 days for response and 10 days out of state

Question 17

Frivolous Litigation

Answer 17

Statute mirroring Federal Rule 11
Statute to recover expenses and fees for bad faith or frivolous tactics

Question 18

Complaint

Answer 18

Statements of facts constituting cause of action
Demand for judgment
No need to allege SMJ (but note its a limited case)
Must state damage amount claimed

Question 19

Exceptions to: Must state damage amount claimed

Answer 19

Exceptions:
Forbidden in personal injury and wrongful death
Punitive damages cannot be stated in complaint
—D finds out amount with a “statement of damages” which P must provide within 15 days
——–Failure to supply, D can move for court order to compel

Question 20

Heightened Pleading for

Answer 20

Fraud, civil conspiracy, tortious breach of contract, unfair business practices, and products liability claims among multiple defendants resulting from exposure to toxins

Question 21

Fictitious Defendants

Answer 21

If the plaintiff is genuinely unaware of the identity of a defendant, she may name the defendant as a “Doe” defendant.

The plaintiff must also allege that she is unaware of the defendant’s true identity and must state the cause of action against the “Doe” defendant (that’s a “charging allegation”).

Fictitious defendants may come up with statute of limitations issues.

Question 22

Verified Pleadings

Answer 22

Verified pleadings are signed under oath by the party.
Rare
Can be treated as evidence for summary judgment as they’re under oath

Question 23

Defendant’s Response

Answer 23

Defendant must respond in an appropriate way within 30 days after service of process is deemed complete.

Question 24

General Demurrer

Answer 24

Most important defense: Failure to state facts sufficient to constitute a cause of action
–Usually P can try again if sustained

Lack of SMJ
–Rare

A general demurrer is considered to be a pleading, but it acts like a motion because it can get the case dismissed.

Question 25

Special Demurrer

Answer 25

Minor defenses, such as complaint is ambiguous or unclear or P lacks legal capacity
The lack of legal capacity;
The existence of another case between the same parties on the same cause of action;
A defect or misjoinder of parties; and
The failure to plead whether a contract is oral or written.
Not available in limited civil cases
Any defenses not addressed are waived

Question 26

Special Rules on Demurrers

Answer 26

Parties must confer before filing demurrer, 5 days
If the parties cannot meet in that time frame, the defendant gets an automatic 30-day extension of time in which to answer or demur. To get this extension, though, the defendant must file and serve a declaration under oath that a good faith effort to meet and confer was made and stating why the parties could not do so on or before the date of the demurrer is due. The 30-day extension runs from the time the demurrer was due.
If the parties do meet and confer, but the defendant then files the demurrer, the defendant must include a declaration under oath stating either that the parties met and could not resolve the issues or that the other party failed to meet and confer in good faith.
The defendant must raise all matters in the demurrer. So, if a plaintiff files a complaint, the defendant properly demurs, and the court sustains the demurrer, but grants the plaintiff leave to file an amended complaint, the defendant cannot demur to this amended complaint on grounds that were available to attack the first complaint.

Question 27

Motion to Quash Service of Summons

Answer 27

Lack of PJ
Improper process
Improper service of process

Question 28

Special vs General Appearance

Answer 28

Special appearance when making motion to quash service of summons
Must be made before or with demurrer or motion to strike
General appearance waives challenges to jurisdiction and process
General appearance such as answer or demurrer engages merits of case

Question 29

If Motion to Quash Denied:

Answer 29

15 days to plead
Appellate review:
Need writ of mandate from court of appeal right away

Question 30

Motion for Inconvenient Forum

Answer 30

Can make motion after answer but not after demurrer or motion to strike

Question 31

Motion to Strike

Answer 31

A motion to strike can be used to strike “irrelevant, false, or improper matter,” like in federal court

Question 32

Anti-SLAPP Motion to Strike

Answer 32

The legislature is concerned about strategic lawsuits against public participation (“SLAPP”).
These are suits brought to chill the valid exercise of First Amendment rights (for example, speech, petition of government).
What it does is shift the burden to the plaintiff to show a probability of winning the case on the merits.

Limited: D is not supposed to make motion if sued in public interest or on behalf of general public

If granted: Now D can sue P for malicious prosecution. This is called a “SLAPPback” suit

Question 33

Answer

Answer 33

General denial and affirmative defenses
If verified complaint, must file verified answer
No demand for recovery
Must use cross-complaint
Timing:
No later than 30 days after SoP complete

Question 34

Cross-Complaints

Answer 34

Separate from answer

Three types:
Against Plaintiff
—-Filed before or at same time as the answer
—-Compulsory: TOSTO
—-Permissive: not TOSTO

Against Co-Party
—-Must arise from same TOSTO
—-Never compulsory

Against TPD
—-Anytime before court has set trial date
—-Never compulsory
——–Usually indemnity or contribution

Must respond within 30 days

Must serve summons to TPDs

Question 35

Amending Pleadings

Answer 35

P has a right to amend before D files answer
—-No right day before hearing for instance
Any party can seek leave to amend
—-Just like federal court
Court granting demurrer or sustaining motion to strike usually gives leave to amend
There can be no more than three amended complaints unless claimant shows additional facts to be pleaded to cure the problem.

Question 36

Relation Back and Fictitious Defendants

Answer 36

Relation back means that the filing date for an amended complaint is considered to be the filing date of the original complaint for statute of limitations purposes. Relation back is OK if:

—-The original complaint was filed before the statute of limitations ran and contained charging allegations against the fictitious defendant(s);
—-The plaintiff was genuinely ignorant of the identity of the Doe defendant(s); and
—-The plaintiff pleaded that ignorance in the original complaint.

If all of these are met, and if plaintiff substitutes the true defendant within three years of filing, it relates back to the original complaint’s filing date.

Question 37

Discovery: Required Disclosures

Answer 37

Technically, there are no required disclosures in California state court, but if all parties stipulate, the court can order initial disclosures (similar to the initial required disclosures in federal court)

Question 38

Discovery Tools

Answer 38

The plaintiff must get a court order to take discovery from a defendant within 10 days after he was served with process (within 20 days to take the defendant’s deposition).

Question 39

Deposition

Answer 39

Oral or written question
No presumptive limit on number
In state and federal court, the presumption is that a deposition consists of one day of seven hours.

Question 40

Electronically Stored Information (“ESI”)

Answer 40

A deponent who is asked to produce ESI that is password protected or otherwise inaccessible must provide either
(1) direct access to the ESI; or
(2) a translation of the ESI in a useable (readable) form.

Question 41

Interrogatories

Answer 41

Only for parties
Form interrogatories
—Approved by Judicial Council
—No limit on number
Special interrogatories
—No subparts
—Presumptive limit of 35 (unlimited civil case)
——Can do more with declaration of need for more
——D can get protective order

Question 42

Requests to Produce (Inspection Demand)

Answer 42

Hard copy or electronic, must specify type
No limit on number
Not allowed for non-parties
—Use subpoena duces tecum here

Question 43

Medical Examination

Answer 43

Court order required except for physical exam in personal injury case
Lawyer can be present for physical exam
—Only with court order for mental exam

Question 44

Request for Admission

Answer 44

Limited number (35) except for requests to admit genuineness of documents

Question 45

Discovery in Limited Civil Cases

Answer 45

When the plaintiff serves process, she includes a completed form questionnaire containing basic information about the case and a blank form for the defendant to complete.

One deposition may be taken.
The parties can also ask for a combined total of 35 interrogatories, inspection demands, and requests for admission

Shortly before trial, a party can request that the opponent disclose the witnesses and evidence it intends to produce at trial.

Question 46

Supplemental Discovery in Unlimited Cases

Answer 46

Unlike in federal court, there is no standing duty to supplement discovery responses as long as the information given was accurate and complete when given.
Instead, the requesting party can propound a “supplemental interrogatory” to elicit later-acquired information bearing on answers previously made.

Also, a party can propound a “supplemental demand for inspection,” which demands inspection of later-acquired or later-discovered documents or things.

So, in state court, a party must seek supplemental discovery; the limit is twice before trial date is set and once after that.

Question 47

Scope of Discovery

Answer 47

A party can discover anything “relevant to the subject matter involved in the pending action.”
Need not be admissible alone

Question 48

Scope of Discovery: Limits

Answer 48

Privileged Matters
—-Privileged log here too
Right of privacy
—-Balances need for information and need for privacy
Work product
—-In CA, must be generated by attorney or their agent

Question 49

Expert Witnesses

Answer 49

Once a trial date is set, any party may request the simultaneous exchange of expert witness information. Then each party must exchange a list of experts to be called at trial, declare the nature and substance of testimony, and the expert’s qualifications.
Reports by the expert also may be demanded. A party may then take the expert’s deposition. If a party does not exchange this information, the court may exclude its expert from testifying.
Generally, information from/about consulting experts (who will not testify at trial) cannot be discovered

Question 50

Enforcement of Discovery Rules

Answer 50

Meet and confer

Court may sanction anyone who misuses discovery process

Party may seek protective order

A party can object that ESI is not reasonably accessible because of undue burden or expense, but she must identify the categories of sources that are not accessible. (Same as in federal court.)

Question 51

Sanctions

Answer 51

Monetary Sanctions
Merit sanctions
—-Establishment order
—-refusal to allow party to support its position with evidence at trial;
—-striking pleadings
—-dismissing the plaintiff’s case; or
—-entering default judgment against the defendant.
When party seeks discovery sanction, must indicate the type of sanctions sought

Question 52

Joining parties

Answer 52

Proper plaintiffs and defendants who may be joined
Necessary and indispensable parties

Question 53

Impleader

Answer 53

D joins someone who owes contribution or indemnity (cross-complaint in CA)

Question 54

Interpleader

Answer 54

Property stakeholder sues potential claimants

Question 55

Class Action

Answer 55

the following must be shown:

An ascertainable class; and
A well-defined community of interest.
Common questions predominate
Representative adequate
Class will result in substantial benefit to parties and court

No types in CA

Question 56

Class Action: Notice

Answer 56

Notice may be given to the class by publication. Individual notice is not required. In federal court, the cost of notice is borne by the representative. In California state court, the court decides who will pay: representative, defendant, or shared.

Answer 57

Notice
Notice may be given to the class by publication. Individual notice is not required. In federal court, the cost of notice is borne by the representative. In California state court, the court decides who will pay: representative, defendant, or shared.

Question 58

Class Action: Opt Out

Answer 58

All class members who do not opt out are bound by the class judgment. Opt out may be allowed by the court.

Question 59

Class Action: Appointment of Class Counsel Not Required

Answer 59

California does not require the court to appoint class counsel.

Question 60

Class Action: Approval of Settlement

Answer 60

The court must approve settlement or dismissal of a class action, as in federal court.

Question 61

Class Action: Determining the Amount in Controversy

Answer 61

The amount in controversy is aggregated. For example, suppose a class has 26,000 members, each of whom has been harmed $1. What is the amount in controversy for determining whether the case is limited or unlimited? $26,000.

Question 62

Preliminary Injunctive Relief

Answer 62

As in federal court, a party may seek a court order maintaining the status quo pending litigation on the merits.

Question 63

Voluntary Dismissal

Answer 63

The plaintiff can move to dismiss any time before trial starts. The decision is for the court to make.
Whether the dismissal is with or without prejudice is up to the court.
But if the plaintiff moves for voluntary dismissal after trial starts, and the court grants it, the dismissal is with prejudice,
unless the parties agree otherwise or the court finds good cause to dismiss without prejudice.

Question 64

Involuntary Dismissal

Answer 64

All courts have authority to dismiss for failure to prosecute, failure to abide by court orders or rule, and for the various reasons that can be raised by demurrer, motions to quash, etc.

California state courts also have discretion to dismiss if the case has not been brought to trial (or defendant has not been served with process) within two years of filing.
In California, the court must dismiss if
(1) the case has not been brought to trial within five years of filing, excluding all periods when the case was stayed; or
(2) process has not been served within three years of filing, excluding time where a stay made it impossible to serve process

Question 65

Default and Default Judgments

Answer 65

If the defendant fails to respond to the complaint within 30 days of the effective date of service of process on him, he is subject to a default and default judgment. The procedure is very similar to federal court.

As in federal court, cannot recover more than you asked for in your complaint.

Notice of application for entry of default

Default judgment entered by clerk if
—-D made no response
—-Claim on contract or judgment
—-Sum certain in money
—-D not served by publication
—-Affidavit stating relevant facts

Default judgment by court
Move by D to set aside default judgment

Question 66

Failure to Plead Facts Constituting a Cause of Action

Answer 66

Instead of the Federal Rule 12(b)(6), in state court a defendant usually raises a failure to plead facts constituting a cause of action with a general demurrer

Question 67

Summary Judgment vs. Summary Disposition

Answer 67

In California, summary judgment disposes of all causes of action in a case.
If a motion is aimed at determining less than the whole case, for example, to determine liability but not damages or to determine one of several causes of action, it is called summary adjudication.

Question 68

Special California Procedural Points for summary judgment

Answer 68

The moving party must file and serve a separate statement of material facts she claims to be undisputed, with supporting evidence for each fact. If she does not, the motion can be denied.

The moving party must serve all papers at least 75 days before the hearing on the motion.

Opposition papers must be filed at least 14 days before the hearing.

Reply papers by the moving party must be filed no more than five days before the hearing.

Judge rules on objections to evidence for that evidence relevant to the motion.

Question 69

Recovery

Answer 69

At trial, a party is not limited by the amount claimed in the complaint or a cross-complaint.
However, the complaint does limit recovery in default judgment cases, and remember that, in limited civil cases, no claimant may recover more than $25,000.

Question 70

Right to Jury

Answer 70

The Seventh Amendment does not apply in state court.
However, the California Constitution grants right to jury trial along the same law/ equity split as the Seventh Amendment.

Question 71

Judge Jury Roles for Law and Equity

Answer 71

Judge decides equity facts before jury decides the law facts
No role for jury if damage claim incidental to equity cause of action
—Equity clean up doctrine

Question 72

Requirement of Jury Demand

Answer 72

A party must “announce” her demand for jury (orally or in writing) at the time the case is set for trial or within five days after notice of the setting of trial. Usually, this is made in the case management statement.
The failure to demand constitutes waiver.

Question 73

Number of Jurors

Answer 73

In state court, there are 12 jurors in civil cases unless the parties agree in open court to a lesser number.
If a juror is excused for illness or other reason, an alternate juror takes her place.
If there is no alternate, trial continues unless a party objects.

Question 74

Jury Selection

Answer 74

In the voir dire process, each party may raise unlimited challenges for cause
Like in federal court, whether to strike the potential juror is the judge’s decision

Each party gets six peremptory challenges (in federal court it’s three per side).

Peremptory challenges may not be used on the basis of “race, color, religion, sex, national origin, sexual orientation, or similar grounds,” which is a little broader than in federal court.

Question 75

Motion for Directed Verdict

Answer 75

JMOL for state court
Reasonable people couldn’t disagree

Question 76

Motion for Non-Suit

Answer 76

If the defendant moves for this at the close of the plaintiff’s opening statement or at the close of the plaintiff’s evidence at trial, it is often called a motion for nonsuit

Question 77

Motion for Judgment Notwithstanding the Verdict

Answer 77

A motion for judgment notwithstanding the verdict (“JNOV”) is what the federal courts call renewed motion for judgment as a matter of law (“RJMOL”).
Jury reached conclusion reasonable people could not have reached

Question 78

Motion for Judgment Notwithstanding the Verdict: Timing

Answer 78

The moving party must file notice of intention to move either before entry of judgment or the earlier of these:
(1) 15 days of mailing or service of notice of entry of judgment; or
(2) 180 days after the actual entry of judgment.
No need to preserve right like in federal

Question 79

Motion for a New Trial

Answer 79

Timing
The timing is the same as a motion for JNOV (see above).

Bases
The bases are the same as in federal court: something convinces the judge that the parties should retry the case; that is, “that the error complained of has resulted in a miscarriage of justice.”

Question 80

Excessive (Remittitur) or Inadequate (Additur) Damages

Answer 80

One ground for new trial is excessive or inadequate damages. A “shocks the conscience” standard is used. As we saw in federal court, a court might try to avoid a new trial on this basis by suggesting “remittitur” or “additur.” California courts can use both remittitur and additur, whereas federal courts can use remittitur only.

Question 81

Motion to Set Aside Judgment

Answer 81

A party may move to set aside judgment because of “mistake, inadvertence, surprise, or excusable neglect.”

The motion must be made within reasonable time, not to exceed six months after entry of judgment.

The court must set aside the judgment if the party’s application is accompanied by a lawyer’s affidavit of her own mistake, inadvertence, or neglect.

In addition, a party can move to set aside judgment if service of process did not result in actual notice of the case to him.

Question 82

Expedited Jury Trial

Answer 82

Most limited civil cases are subject to “mandatory expedited trial.”

There are eight jurors and four peremptory challenges per side in an expedited jury trial.

Six of eight jurors are needed to reach a verdict

Each side has up to five hours in which to complete voir dire and present its case.

The parties may agree regarding how many witnesses, evidence to be presented, etc.

The parties may enter a “high/low” agreement, which sets out the defendant’s minimum and maximum liability for damages.
—The jury cannot be told of the existence or terms of the high/low agreement.

In a voluntary expedited jury trial, the parties waive the right to appeal except in very limited circumstances (for example, misconduct of judge, corruption that prevented fair trial). In a mandatory expedited jury trial, regular appeal rights apply.

Question 83

Appellate Review: Basic Idea

Answer 83

In an unlimited case, the appeal is from the superior court to the California court of appeal.

The appeal is to the district of the court of appeal to which the county is assigned.

Question 84

Appellate Review: Timing

Answer 84

Generally, the notice of appeal must be filed in the superior court within 60 days after mailing or service of the “notice of entry” of judgment; or 180 days after entry of judgment if no notice is served.

Question 85

Appellate Review: Where Limited and Small Claims Are Appealed To

Answer 85

Judgments in limited civil cases and small claims matters are appealed to the appellate department of the superior court.

Question 86

Appellate Review: Final Judgment Rule

Answer 86

Like federal courts, California follows the final judgment rule.
Generally, an appeal cannot be lodged until the merits of the entire action are resolved

Exception:
A judgment wrapping up a dispute as between one of several parties is a final judgment

Question 87

Interlocutory Appeal of Non-Final Rulings: When

Answer 87

Denial of class action certification
Grant of a new trial
Grant of motion to quash service of summons
Grant of dismissal or stay for inconvenient forum
Denial of motion for JNOV
Grant or denial of issuance or dissolution of injunction
Order for sanctions over $5,000

Question 88

Interlocutory Appeal of Non-Final Rulings: Collateral Order Rule

Answer 88

The court of appeal may hear appeal on
(1) an issue collateral to the merits of the case
(2) that the trial court has decided finally, if
(3) it directs payment of money or performance of an act

Question 89

Interlocutory Appeal of Non-Final Rulings: Extraordinary (or Peremptory) Writ

Answer 89

If an 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).
These are extraordinary and not routinely granted.
Technically not an appeal
Separate case filed in court of appeal

Question 90

Interlocutory Appeal of Non-Final Rulings: Extraordinary (or Peremptory) Writ: Requirements

Answer 90

Irreparable harm without repair
Normal route of appeal inadequate
Beneficial interest in the outcome
Still always discretionary

Important example: In what situation is seeking a writ of mandate the only way to get appellate review? The denial of a motion to quash service of summons.

Question 91

Preclusion

Answer 91

Apply preclusion law of the system that decided case 1
Claim and issue preclusion are affirmative defenses and must be raised
Usually seen with motion for summary judgment

Differences between CA and Fed:
Effect of an Appeal
No preclusion if judgment is or can be appealed

On the Merits
Judgment not on merits if dismissed under statute of limitations, not precluded

Primary rights
Separate cause of action for each right invaded