Civ Pro Flashcards
(95 cards)
1
Q
Proper court issues
A
- Does the court have jurisdiction over the persons involved? (PJ)
- Does the court have jurisdiction over the subject matter of the suit? (SMJ)
- Is the venue proper? (Venue)
- Does D have notice? (Notice)
- What is the proper law the court should use? (Choice of Law/Erie)
2
Q
personal jurisdiction
A
PJ is proper where there is a sufficiently close relationship between the forum state and D.
3
Q
Three traditional basis for PJ
A
- D consents to jurisdiction in the forum state
- D is domiciled in the forum state (physical presence and subjective intent to remain.
- D is present in the forum state when served with process.
4
Q
PJ over nonresidents
A
The minimum contacts standard allows PJ over nonresidents of the forum state provided there is a long-arm statute, and the exercise of PJ is in keeping with the constitutional requirements of the minimum contact standard.
5
Q
Long-arm statute
A
A long-arm statute is the mechanism that gives a state the power to reach beyond its own borders to assert jurisdiction over a nonresident. Two types of long-arm statutes:
- CA long-arm statute: CA state courts have power over any person or property up to the limit of the Constitution, therefore minimum contacts standard is applied.
- Specific long-arm statutes: some states have specific long-arm statutes that gives its courts power over nonresident only under specified situations. The exercise of jurisdiction msut satisfy that statute and also meet the constitutional requirements of the minimum contacts standard.
6
Q
minimum contacts standard (the constitutional limit to a state’s exercise of PJ)
A
D must have sufficient minimum contacts with the forum state such that asserting jurisdiction over him does not offend traditional notions of fair play and substantial justice.
7
Q
minimum contacts analysis
A
- Purposeful Availment: has D purposefully availed himself of the benefit and protections of the state such that it is reasonably foreseeable that his activities subject him to being hauled into court here?
- Relatedness of claim to contact with forum: is the claim at issue related to D’s contact in the forum state?
- specific jurisdiction: the claim directly arise from D’s contact with the forum state. The forum state has specific jurisdiction over D for that claim only.
- general jurisdiction: D’s contact with the state are sufficiently systematic and continuous that it renders D essentially at home in the forum state. The forum state may exercise jurisdiction over D for any cause of action.
- Fairness factors:
- the convenience to the parties: P’s interest in obtaining convenient relief, location of the witnesses and evidence, and the burden on D to travel.
- the forum state’s interest in regulating activity within its borders and protecting its citizens.
- any other interests, such as the interstate efficiency interest.
8
Q
Subject matter jurisdiction
A
The court must have proper jurisdiction over the subject matter of an action.
Federal courts have limited jurisdiction and may only hear cases involving federal questions or diversity of citizenship.
9
Q
Federal question
A
Federal courts have SMJ over civil actions arising under federal law.
10
Q
Complete diversity is required for SMJ
A
no P may be a citizen of the same state as any D at the time the action is commenced.
11
Q
Diversity of citizenship
A
Federal courts have SMJ over actions between citizens of different states and where the amount in controversy exceeds $75,000.
12
Q
How to determine a natural person’s citizenship?
A
domicile: only one domicile for each person: domicile = physical presence + subjective intent to make it his permanent home.
13
Q
How to determine a corporation’s citizenship?
A
A corporate is a citizen of:
- the state where the business is incorporated; and
- the one state where the corporation has its principal place of business.
PPB is the nerve center of the corporation where its officers direct, controls, and coordinate the corporation’s acitivities.
14
Q
How to determine the citizenship of an unincorporated associations?
A
the citizenship of all and any members.
15
Q
How to determine the citizenship of minors, decedents, and incompetents?
A
It is determined by their own citizenship, not the citizenship of their representative or guardian.
16
Q
How to determine the citizenship of aliens?
A
Alienage jurisdiction permits SMJ when a case is between a U.S. citizen and a foreign subject or citizen.
17
Q
Exceptions to federal SMJ
A
Federal courts will not hear actions involving issueance of divorce, alimony, or child support, or to probate an estate.
18
Q
CA state court SMJ
A
CA courts have general jurisdiction and can hear any case not within the exclusive jurisdiction of another court.
unlimited civil cases: AIC exceeds $25k, heard in superior court, no limitation on pleadings, discovery or relief available.
limited civil cases: AIC of $25k or less, heard in superior court, has limitation on the use of process and the equitable relief available, and a claimant cannot recover more than 25k.
small claims cases: heard in small claim court and requires AIC for individual plaintiff be $10k or less and AIC for business entity plaintiff be $5k or less.
19
Q
Supplemental jurisdiction
A
applies when an additional claim shares a common nucleus of operative fact with a claim that invokes federal SMJ.
common nucleus of operative fact = claims arise from the same transaction or occurrence.
20
Q
Removal jurisdiction
A
allows D to have a case originally filed in state court removed to federal court where the case could have properly been brought in either state or federal court in the first place.
- only D are eligible to remove cases.
- diversity case: in diversity cases, D may not remove to federal court if he is a citizen of the forum state.
- venue: the case can be removed to a federal court that sit in the state court’s judicial district.
- timing: no later than 30 days after service of the first “removable” document, but never later than 1 year after the initial filing.
21
Q
Remand
A
When the removal is improper, the federal court can remand the case back to state court.
22
Q
Venue
A
The proper geographic district for a particular case to be heard.
23
Q
When is venue proper?
A
Venue is proper where a) the claim arose or b) the defendant resides. Alternatively, if no districts satisfy a) or b), venue is proper in any district where any defendant is subject to the court’s personal jurisdiction.
24
Q
Venue is proper where the claim arose
A
- Federal: venue is always proper in the district where a substantial part of the claim arose or where the land in dispute is located.
- CA: venue is proper in the county where the claim arose or where the land in dispute is located.
25
Venue is proper where the **defendant resides**
- **Federal**: venue is proper in **any district** where **any defendants reside** if all defendants are residents of the same state.
- **CA**: venue is proper in a county where **any defendant resides** at the time the case is filed. If no D resides in CA, then any county is acceptable.
when D is a corporation:
- Federal: in all districts where they are subject to PJ if the district were a state.
- CA: in the county where they have their PPB, or where a contract was entered into or performed, or where contract breach occurred, or where liability arises.
26
Transfer of venue when the original venue is proper
- Federal: Venue may be transferred to another federal court where the **case could have been filed or all parties consent** and there is proper PJ, SMJ, and venue.
- CA: the venue can be changed at the judge's discretion where the **interests of justice and convenience of the parties** would be served by such a transfer.
27
Transfer of venue when the original venue is improper
- Federal: the court must **dismiss** or **in the interest of justice, transfer** to a proper venue.
- **CA**: allows for the **transfer of venue to a proper county** when the **court** designated in the complaint is not the proper court.
28
Forum non conveniens
**Federal**: a court may dismiss or stay a case if there is a **far more appropriate forum elsewhere**, such as another state or country.
**CA**: a court may dismiss or stay a case if another forum in another state or country is more suitable by looking at the **interests of justice**, including that the alternative forum is suitable and the **private and public interest factors** balance in favor of the alternative forum.
- **public factors**: what law applies, which community should be burdened with jury service; and
- **private factors**: convenience, location of witnesses, evidence, etc.
29
Notice
D must be **properly notified** of a pending action by a reasonable method and must be given an opportunity to be heard.
30
Service of process
to provide D with notice of a pending action by delivery to defendant of a **summons and a copy of the complaint**.
31
Method of service
Service can be made by **anyone who is at least 18 years old** and **not a party to the action**.
32
Personal service
**personal service**: always adequate and occurs when the notice is personally delivered to D.
33
Substituted service
**substituted service** is usually adequate--
- **Federal court**: service can be left at **D's usual abode** and served upon **someone of suitable age and discretion** who resides there, or served to **D's authorized agent**; or served by methods permitted by state law.
- **CA**: allows substituted service only if personal service cannot be accomplished with reasonable diligence. Must be left at D's usual abode with a competent member of the household who is at least 18 years old, and that person must be informed of the contents. The server must then mail a copy of the papers to the other party at the address the papers were left.
34
Constructive service
**Registered mail** is only effective if D agrees to waive service of process.
CA: allows **service by publication** only if nothing else works.
35
Erie doctrine
A federal court sitting in diversity must apply **state substantive law**, including statutes of limitations and the state's conflict of law rules, and **federal procedural law**.
- policy goal: prevent forum shopping
36
What can the judge do when it is unclear whether the law is substantive or procedural?
A judge will use one of the two tests:
- **outcome determinative test**: an issue is substantive if it substantially affects the outcome.
- **balance of interests**: the federal interest in having the federal law applied is balanced against the state interest in having the state law applied. If the state has a greater interest, then the law is substantive.
37
**CA Conflict of Law Rules** are deemed substantive law under Erie
- **torts actions**: when two state laws are in conflict, the court evaluates the **comparative impairment to each state's interest** in having its law applied;
- **contract actions**: if K have a choice of law provision, the provision will be applied so long as it has *8a reasonable basis and does not conflict** with CA policies. If it conflicts with CA policies, CA law will apply **if** CA has a materially greater interest in having its law applied.
38
Pleading
- Federal courts uses **notice pleading**, the goal is to provide the opposing party with **reasonable notice** of the nature and scope of the claims being asserted.
- California courts uses **fact pleading**, more specific than notice pleading. Parties must. plead ultimate facts to support each element of the cause of action.
39
Pleading requirements (**Rule 11**)
**Rule 11 requires all attorneys or a party representing himself to **sign** all pleadings, written motions and papers, certifying that hte paper is **proper**, the **legal contentions are warranted by law, and the factual contentions have evidentiary support**.
- **21-day safe harbor rule** to correct/withdraw or **sanction**.
40
Complaint
**Federal**: a federal complaint must include:
1. **identification of the party**
2. proper **SMJ**;
3. **statement of the claim** showing the factual basis on which P is entitled to relief.
4. a **demand for judgment**
5. **signature** of P or his attorney.
**California**: a CA complaint must include:
1. **identification of the parties**: CA allows P to sue fictitious "Doe" where D's identity is unknown.
2. **statement of the claim**, including specific facts supporting every element of each legal theory alleged.
3. **demand for judgment**, including the amount of damages sought, unless the damages sought are for actual or punitive damages for a personal injury or wrongful death action.
4. **signature**
41
Rule 12 Response
**Rule 12** requires a defendant to **respond by either a motion or by an answer** within 21 days after service of process (or within 60 days if service waived). CA allows 30 days to respond.
42
Motion to strike
- the motion to strike aims at pleadings containing immaterial or redundant issues.
- **CA**.**Anti-SLAAP** (Anti-Strategic Lawsuits Against Public Participation) **motion to strike** targeting suits brought to chill the valid exercise of free speech and petition. The burden is on P to show a probability of winining on the merits.
43
Federal Rule 12(b) defenses (can be raised as both pre-answer motion or answer)
1. **Lack of SMJ**: can be raised anytime before all appeals are exhausted.
2. **Lack of PJ**: this must be raised in the **first response** or is deemed waived.
3. **Improper venue:** must be raised in the **first response**.
4. **insufficient process**: must be raised in the **first response**.
5. **insufficient service of process**: must be raised in the **first response**.
6. **Failure to state a claim** on which relief can be granted: can be raised **anytime until the trial is concluded.**
7. **Failure to join an indispensable party**: can be raised **anytime until the trial is concluded.**
44
CA general demurrer
1. **Pleading failed to state facts sufficient to constitute a cause of action**;
2. **Court lacks SMJ**
45
CA special demurrer
Special demurrer is only allowed in cases **classified as unlimited**. These issue can be raised on a special demurrer or in the answer.
1. **uncertain pleading**;
2. Complaint is unclear about **which theory or liability** are asserted against each D.
3. **Lack of legal capacity to sue**.
4. **Existence of another case** between P and D on the same cause of action.
5. **Defect or misjoinder of parties**;
6. Failure to plead whether a **contract** is oral or written;
7. Failure to file a **required certificate**.
46
Motion for a more definite statement
Used in federal courts where the complaint is too vague.
47
CA motion to quash service of summons
Done by means of a special appearance and must be made separately from the answer. This motion must be made either **before or concurrently** with the filing of the demurrer or motion to strike or the answer.
1. **Lack of PJ**: D must raise PJ on or before last day of his time to plead or it is waived.
2. **Insufficient process**
3. **Insufficient service of process**
48
Answer
D's response to the complaint.
1. D **must respond to the allegations** by denying them, admitting them, or stating he lacks sufficient information to do either. Failure to deny can operate as an admission.
2. D **must assert any affirmative defenses** in the answer.
CA
49
Right to amend
**Federal**: P has a right to amend **once within 21 days of service**
**CA**: P has a right to **amend once** before the answer or demurrer to the complaint is filed, or after the demurrer is filed but before the hearring on the demurrer.
50
Federal relation back doctrine
**Amended claims "relate back"** (after the statute of limitation has run) if they concern the same **conduct, transaction, or occurrence** as the original complaint.
**Amended defendants "relate back"** if they concern the **same conduct, transaction, or occurrence** as the original complaint.
51
CA relation back "Doe" Amendments
P must substitute a named D for "Doe" D within 3 years of filing.
P must be genuinely ignorant or the identity, the facts giving rise to the c ause of action against that D, or the fact that the law provides a cause of action.
52
Permissive Joinder
P and/or D may be joined to an existing case if the claims arise from the **same transaction or occurrence** and raise at least **one common question of fact or law**. However, there still must be SMJ.
53
Joinder of a **necessary party**
a party is a **necessary party** if:
1. the court **cannot provide complete relief** without the necessary party; or
2. the absent party's **interest will be harmed** if he is not joined; or
3. the absent party is **subject to multiple inconsistent obligations.
54
What if a "necessary party" cannot be joined
the court will consider
- if there is an **alternative forum** available
- assess the **likelihood and extent of prejudice to the parties and the absent party**
- whether the court **can shape relief to avoid the prejudice**
The court may either **dismiss** the case because the party is indispensible or **proceed** with the case without the necessary party.
55
A **necessary party** must be joined if:
1. the court has PJ over him;
2. joining him does not **destroy diversity**, when diversity is the basis of federal SMJ.
56
Impleader
a mechanism **defendant can use to add a third party defendant** in order to seek indemnity, subrogation, or contribution.
- **Supplemental jurisdiction applies** because the claim will meet the **common nucleus of operative fact** requirement and no independent basis for SMJ is required.
- **CA calls this a cross complaint**, and it is broader since it allows the addition of any claim on which the third-party defendant is liable so long as it pertains to the same transaction or occurrence.
- **venue need not be proper** for 3d party D.
57
Intervention
**A nonparty claims an interest** in the property or transaction that is the subject of the pending lawsuit and disposition in his absence will impair his rights.
**CA** allows intervention if the intervener's interest is **direct and immediate**
58
Interpleader
**One holding property (the stakeholder) forces all potential claimants into a **single lawsuit** to avoid multiple and inconsistent litigation.
- **statutory interpleader**: requires only that **one claimant must be diverse** from one other claimant and the AIC must be $500 or more.
- **Rule 22 interpleader**: requires that the stakeholder must be **diverse from every claimant** and the AIC must exceed 75k.
59
Compulsory counterclaim
arises from the **same transaction or occurrence** as P's claim and **must be raised** or the claim is deemed waived.
- **supplemental jurisdiction** will extend to a compulsory counterclaim.
60
Permissive counterclaim
do not arise from the same transaction or occurrence and may be raised in the pending case or in a separate case.
- **no supplemental jurisdiction**
61
CA cross complaint
encompass all 3d party actions, such as counterclaims, cross claims, impleader, etc.
62
Cross claim
An offensive claim against a **co-party** and must arise from the **same transaction or occurrence**. Cross claims are never compulsory.
- **supplemental jurisdiction** applies to the cross claim.
63
Federal court class actions requirements
1. Numerosity: too many class members for joinder to be practical;
2. Commonality: common questions of law or fact;
3. Typicality: the representative's claims or defenses are typical of those in the class;
4. Adequacy: the representation will fairly represent the class.
64
Types of class actions
The class action must **fit within one of the following types of classes**:
1. **Prejudice**: class treatment is necessary to avoid inconsistent results;
2. **Injunctive or declaratory relief is sought**; or
3. **Question of law/fact common to the class predominate** over questions affecting individuals, and a class action is a **superior method to resolve the issues.
65
Diversity issue in federal class actions
The federal court relaxes the jurisdictional requirements for some class actions. Federal court can hear a class action if the following requirements are met:
1. **diversity**: **any class member** is diverse from **any defendant**: and
2. **aggregation**: the class claims aggregate to exceed $5M.
3. **100 members**: there are at least 100 proposed class members.
66
CA class actions
A CA class action is allowed if there is:
1. an **ascertainable class**: and
2. a **well-defined community of interest** among class members.
To analyze the interest the state court looks at whether: a) common question of law or fact predominate; b) the representative will adequately represent the class interests; and 3) the class will result in **substantial benefit** to the parties and the court.
67
Types of CA class actions
there is only **one type of class** in CA
68
Notice requirements for CA class action
individual notice is not required and publication is an acceptable method of notice.
69
3 types of mandatory disclosures
**Federal Rule 26 requires the mandatory disclosure** of information about the pending case to the opposing party. Three types of mandatory disclosure:
1. **Initial Disclosure**
2. **Expert Testimony information**
3. **Pretrial Disclosure**
**CA does not require mandatory disclosure**
70
Deposition
An examination of a witness that occurs under oath and is recorded by sound, video, or stenography.
1. **Parties** can be deposed
2. **Nonparties** can be deposed by **means of a subpoena**.
3. **Once only**: a person may not be deposed twice without court approval.
**FRCP**: 10 max
**CA**: no limits
71
Interrogatories
Questions propounded **in writing** to another **party**, which must be answered in writing under oath.
Rogs may not be asked of nonparties.
Limits:
- **Federal** no more than 25 questions.
- **CA**: unlimited number of form interrogatories and 35 max specific interrogatories.
72
Scope of Discovery
- **Need not be admissible**: relevant materials can be discovered even if not admissible so long as the item is **reasonably calculated to lead to the discovery of admissible evidence**.
- **Privileged material is not discoverable** (**CA** requires the responding party to object with particularity)
73
Attorney work product
**General Rule**: work product is material **prepared in anticipation of litigation** and is generally not discoverable **unless** there is **substantial need** and the **inability to obtain** the information through other means.
- **Absolute privilege** applies to **mental impressions**, opinions, conclusions, and legal theories.
74
Sanction
For violation of discovery, sanctions may be imposed including holding a noncomplying party in contempt, striking pleadings, imposing fees, and ordering default judgment.
75
Request for physical or mental examination of a party
The requesting party must obtain a **court order** upon a showing that the **physical or mental condition of the party is at issue**, and there is **good cause for an examination**.
**CA** allows the defendant to have **one physical exam** of the plaintiff as a right when P's physical condition is at issue. Other physical or mental examination require **leave of the court**.
76
Dismissal
**Voluntary dismissal**: P may obtain one voluntary dismissal without prejudice.
**Involuntary dismissal**: the court may do this at D's request, or at the court's own discretion. Involuntary dismissal is often with prejudice.
77
Dismissal for failure to state a claim
occurs when even if the court assumes **all allegations are true**, P **still cannot win** based on the face of the complaint.
CA: this is called general demurrer.
78
CA mandatory dismissal
If case is not brought to trial **within 5 years of filing the complaint**, or **2 years have passed from filing until the service of process**.
79
Default judgment
D fails to respond within **21 days** after service in federal court, or **30 days** after service in CA courts.
80
Motion for summary judgment
MSJ will be granted if the moving party can establish that there is no **genuine issue of material fact and that he is entitled to judgment as a matter of law**.
Standard of review:
- The court views the evidence **in the light most favorable to the nonmoving party**,
- Evidence must be comprised of **firsthand knowledge** and credibility is not weighed here.
- A **court can grant a partial** summary judgment as to one of the several causes of action.
81
Jury trial
Federal court:
- a jury decides the factual legal issues; then the judge determines the equitable claim.
- demand of jury must be made in writing **no later than 14 days after service.**
- each side has unlimited challege on voir dire for cause, and **three preemptory** challenges.
- a jury contain 6-12 jurors and a unanimous vote is required.
CA:
- the judge decides the equitable issues first. then the jury decides the legal issues.
- each party is entitled to unlimited challenges for cause, and **six preemptory challenges**.
- a jury contains 12 jurors and alternates; only a **three quarters juror vote** is required.
82
Judgment as a matter of law (JMOL)
JMOL occurs when one party files a motion after the other side has been heard at trial (D can usually move twice, P once), contending that **reasonable person could not possibly disagree on the result**.
In CA state court, JMOL is called a motion for a directed verdict.
83
Renewed Judgment as a matter of law (RJMOL)
RJMOL occurs after the jury has reached a verdict, contending that **reasonable person could not disagree on the result.** The losing party **must have originally filed a JMOL** or they cannot later file a RJMOL since it is a renewal of the earlier motion.
- **Federal**: motion must be made within 28 days after entry of judgment.
- **CA**: motion must be made within 15 days after mailing or service of notice of entry of judgment, or 180 days after the entry of the judgment.
84
Motion for a new trial
Losing party requests a new trial based on errors made at trial. Same filing deadline as RJMOL.
**Grounds for a new trial includes**:
- **prejudicial error** at trial that makes the judgment unfair;
- **new evidence** that could not have been obtained for the original trial through due diligence;
- **prejudicial misconduct** of a party/attorney/3d party/juror.
- judgment is **against the weight of the evidence**
- **excessive damages or inadequate damages
85
Motion to set aside judgment
May be brought within one year of the judgment
**Grounds for the motion**:
- clerical errors
- neglectful mistakes;
- newly discovered evidence;
- fraud, misrepresentation, or other misconduct of a party;
- judgment is void for lack of due process
86
Remittitur
occurs when a judge orders that a new trial for D will take place unless **P agrees to a reduced award of damages** because the judge finds the damages awarded by the jury **so excessive as to shock the conscience**.
87
Additur
occurs when a judge orders that P will get a new trial unless **D agrees to an increased award** of damages because the judge finds the damages awarded were insufficient.
- Federal: does not permit additur.
- CA: additur is permitted.
88
Final Judgment Rule
Only final judgments may be appealed. A final judgment is an ultimate decision made by the trial court on the merits of an entire case such that there is a final judgment as to all parties and all causes of action.
89
Exceptions to the final judgment rule
1. **injunctions and some interlocutory orders**;
2. **trial court certifies** an interlocutory order for appeal;
3. **collateral orders**, such as those regarding procedural issues;
4. **multiple claims or parties** involved and some issues are pending, but the issue is resolved as to one claim or party and the judge expressly determines that the order as to that party is final. (CA: express determination is not required)
5. **extraordinary writ**: if an order is not otherwise appealable and the circumstances are exceptional, the aggrieved party may seek a writ of mandate to compel the lower court to act.
6. **class certification**
90
Time limits for appeal
Federal: within 30 days after entry of final judgment.
CA: within 0 days after service of notice of entry of judgment; or 180 days after entry of the judgment if no notice is served.
91
Standards of review on appeal
1. **de novo**: clean slate. Questions of law are reviewed de novo.
2. **clear error**: questions of fact determined by the trial judge are reviewed using a clear error standard.
3. **In the light most favorable to affirming the verdict**: questions of facts determined by a jury is required in a light most favorable affirming the jury's verdict. The appellate court asks if a **reasonable jury could have reached the same conclusion**.
4. **mixed questions of fact and law are reviewed de novo**
5. **abuse of discretion**: matters that are discretionary to the judge are reviewed using an abuse of discretion standard. It will only be overturned if it is **clearly wrong**.
92
Res judicata (claim preclusion)
Res judicata precludes relitigation of a claim that has already been decided in prior litigation between the same parties.
93
Requirements for res judicata to apply
1. there is valid final judgment on the merits. (Fed: a judgment is final when it is rendered; CA: **a judgment is final when the appeals have concluded**)
2. The same P and D were parties (or privies, successor in interest to the property or claim) in the prior case and the subsequent case.
3. The **same claim** (cause of action) is asserted in the prior case and the subsequent case.
94
What are considered as **"same claim"** in res judicata?
**Federal**: arise from the **same transaction or occurrence of the same claim**.
**CA**: applies the **primary rights theory**, which allows **separate cause of action** for individual harms and redress may be sought for one harm in each suit.
95
Collateral estoppel (issue preclusion)
Collateral estoppel **precludes relitigation** of a particular issue that has **already been decided in prior litigation**. A subsequent suit based on the same issue will be barred where the first claim meets the following requirements:
1. there is valid final judgment on the merits. (FRCP vs. CA)
2. the **same issue** was **actually litigated**.
3. the **issue was necessarily determined**
4. the **issue was essential to the judgment** in the first case. (no dicta)
4. collateral estoppel can be used only against someone who was a party (or in privity with a party) in the prior suit iin the interest of fairness. (so they have an opportunity to defend the action);
5. The party asserting collateral estoppel has to be a party in the prior case. (mutuality rule)
Note: CA and other states where the mutuality rule does not apply: **"stranger" to the prior case** can rely on a prior judgment if doing so is "fair."
- **Defensive use** of prior litigation to avoid liability in a subsequent suit will be allowed where the party against whom collateral estoppel is asserted had a **fair opportunity to be heard on the critical issue** in the prior case.
- **Offensive use** of prior litigation to establish an issue in a subsequent suit is disfavored and will be allowed only when **it is fair and equitable** employing a balancing test.
