Final Flashcards
(92 cards)
1
Q
Limited Civil Cases
A
- Amount in controversy is less than or equal to $25K
- Discovery is greatly curtailed
2
Q
Unlimited Civil Cases
A
- Amount in controversy EXCEEDS $25K
- Full discovery
- All cases seeking equitable relief except K rescission/reformation
3
Q
SMJ - Standard for Reclassification
A
“Necessarily falls below the jurisdictional minimum”
Must give notice and opportunity to be heard
4
Q
CA Long-Arm Statute
A
Rather than restricting jx, grants a co-extensive jurisdictional reach to that authorized by the U.S. Constitution
5
Q
General JX
A
Only if ∆’s affiliations w/ the forum state are so continuous and systematic as to render it essentially at home in the state
6
Q
Specific JX
A
Only if:
- ∆ has purposefully availed himself of forum benefits;
- Controversy is related to or arises out of ∆’s contacts w/ the forum; AND
- assertion of jx would comport w/ fair play and substantial justice
7
Q
Fair Play and Substantial Justice
Factors
A
- Burden on ∆
- Interests of the forum
- π’s interest in obtaining relief
- Interstate judicial system’s interest in obtaining the most efficient resolution
- Shared interest of the several states in furthering substantive social polices
8
Q
Service of Process - Key Issues
A
1) Type of Party
2) Location of Service
3) Method of Service
9
Q
Substituted Service
A
Requires “reasonable diligence” in attempting personal service first
(2-3 good faith attempts)
10
Q
Service by Mail
A
- Another acceptable form of substituted service is the “usual mailing address”
- Includes private mailbox at commercial facility
- does NOT include USPS PO Box
11
Q
Serving an Entity
A
A corporation is served by delivery a copy of the summons and complaint to a corporate officer, general manager, or person authorized by the corporation to receive service of proecss
12
Q
Serving an Out-of-State ∆
A
Mailing summons and complaint to the person to be served by 1st class mail, return receipt requested
13
Q
Special Appearances
A
- Abolished in fed system (objection to PJ can be preserved)
- NOT abolished in CA - must make motion to quash service of summons in order to retain PJ objection
14
Q
General Appearances
A
- Any time ∆ asks the ct to do an act on his behalf
- Waives PJ for all time
15
Q
Local Venue
A
- Involves real property
- Venue is proper where the property (or some part of it) is located
16
Q
Transitory Venue
A
- Does not involve real property
- Venue is proper where ∆ resides OR where the cause of action arose
17
Q
FNC - Suitable Alternative Forum
A
- An alternative forum is suitable if it has jx and the action in that forum will not be barred by the SOL
- RARE exception if the remedy in the other jx would amount to “no remedy at all”
18
Q
FNC - Private Interest Factors
A
Make trial & enforcement of judgment expeditious and relatively inexpensive; such as:
- Availability of compulsory process for obtaining the attendance of unwilling Ws
- Cost of obtaining attendance of Ws
- Ease of access to sources of proof
19
Q
FNC - Public Interest Factors
A
- Protecting the interest of potential jurors so they are not called upon to decide cases in which the local community has little concern
- Avoidance of overburdening local cts w/ congested calendars
- Weighing competing interests of CA and the alternate jx in the litigation
20
Q
Conflicts of Law - Gov’t Interest Test
A
TORT ACTIONS
1) Whether the relevant law of each of the potentially affected jxs is the same or different with regard to the particular issue in question
2) If different, examine each jx’s interest in the application of its own law to the circumstances to determine whether a true conflict exists
3) Compare the nature and strength of the interests to determine which state’s interest would be more impaired if its policy were subordinated to the policy of the other state
21
Q
Conflict of Law - Provision Enforceability
A
K ACTIONS
1) Ct must decide if the chosen state has a substantial relationship to the parties or transaction OR whether there is any other reasonable basis for the parties’ choice of law
2) Whether the chosen state’s law is contrary to a fundamental policy of CA
3) Whether CA has a materially greater interest than the chosen state in the determination of the particular issue
22
Q
Fact Pleading
A
Have to include sufficient facts to show there is a cause of action w/ at least a potential evidentiary basis
23
Q
Pre-Filing Requirements
A
- Suing a public entity -> written notice
- FEHA -> right to sue letter
- Vexatious litigation -> permission to file
- Fraud & statutory cases -> plead w/ particularity
- Med mal -> 90 days notice
24
Q
Demand for Judgment
A
- For PI or wrongful death, can’t include damages in complaint
- Must serve a separate stmt of damages or default can’t be entered
25
Punitive Damages
- Conduct has to be proven by clear and convincing evidence to have been "fraudulent, malicious, or oppressive"
- Med mal = can NEVER be included in original complaint. Need leave to amend AND showing of substantial probability π will prevail
26
Demurrer
General - tests legal sufficiency of π's claim
Special - not allow in limited civil cases
27
Motion Practice - Required Filings
- notice of motion
- motion
- memo of points and authorities
- evidentiary support
28
Motion to Strike
Appropriate where π prays for punitive damages against a health care provider w/o first filing motion to amend
29
Judgment on the Pleadings
Tests legal sufficiency of the complaint (used once time for demurrer has passed)
30
General Denial
∆ denies each and every allegation contained in the complaint
31
S.O.L. Accrual Standard
Time when, under the substantive law, the cause of action is complete with all its elements
32
Discovery Rule
Time when π discovers or reasonably could have discovered the cause of action
33
Equitable Tolling
- Judge-made doctrine that stops the running of the SOL while the tolling event is occurring
- Should not apply to statutes of repose
34
Equitable Estoppel
- Only comes into play after the SOL has already run
- Prevents ∆ from benefitting from SOL when his conduct induced π into forbearing suit w/in the applicable limitations period
35
Compulsory Cross-Complaint
- A party is prohibited from bringing a claim if, at the time he answered a complaint in prior litigation, he failed to asset any then-existing related CoA against π
- Arising out of the same transaction, occurrence, or series of transactions or occurrences
36
Logical Relationship Test
Are there any questions of law or fact relevant to both claims?
37
Amended Pleadings
Right to amend once w/o leave before ∆ answers or while a demurrer is pending
38
Relation Back
Claims to be added must:
- rest on the same general set of facts;
- involve the same injury; AND
- refer to the same instrumentality
39
Doe ∆s
- Fed cts basically just ignore
- Can amend to name the Doe for 3 yrs
- Subjective test w/ no duty to investigate - just requires πs actual ignorance at time of filing
40
Vexatious Litigant Requirements
- Commencing 5+ suits in the last 7 yrs that have been determined adversely to him
- Repeatedly attempting to relitigate the validity of a prior decision after final determination
- Repeatedly filing non-meritorious motions, pleadings, or other papers - or conducting unnecessary discovery, or other frivolous tactics
41
Truth in Pleading Sanctions
- 21 day safe harbor starts at OSC
| - Can't make sanctions payable to the ∆, just the ct
42
SLAPP Suit
When π sues ∆, not seeking to win, but to prevent/hinder ∆ from engaging in constitutionally protected activity
43
Acts in furtherance of constitutionally protected activity
- Stmts/writings before a legislative, executive, or judicial proceedings
- Stmts/writings in connection w/ an issue under consideration or review by such bodies
- Stmts/writings in a place open to the public, or a public forum in connection w/ an issue of public interest
- Any other conduct involving the exercise of the constitutional right to petition or speech in connection w/ an issue of public interest
44
Anti-SLAPP Early Motion to Strike
- Requires 30 days notice
- Freezes discovery
- Burden on ∆ to demonstrate prima facie showing that π's cause of action arises from an act in furtherance of 1st Am rights
- Burden shifts to π to demonstrate probability of prevailing on the merits
- Decision is immediately appealable
45
Anti-SLAPP Public Interest Exemption
- π cannot seek relief greater than or different from relief sought for general public
- Enforce importance right affecting the public interest and would confer a significant benefit on the general public
- Disproportionate financial burden on π in relation to π's stake in the matter
46
Anti-SLAPP Commercial Speech Exemption
Protects people in the business of selling or leasing goods or services
47
SLAPP Erie Issue (Makaeff v. Trump U)
- Concurrence = purely procedural - FRCP 12 and 56 accomplish the same thing.
- Dissent = entire scheme may violate REA anyway
- Ways to resolve = SCOTUS takes it up, CA leg. repeals SLAPP scheme, Congress repeals diversity jx
48
Consolidation
When actions involving a common question of law or fact are pending before the ct, it MAY order a joint trial or hearing of any or all of the matters in the action
49
Interpleader
Enables a person subject to multiple and inconsistent claims to the same property or obligation to join the claimants in a single lawsuit where the ct agrees there is a valid threat of double vexation
50
Permissive Intervention Requirements
- Proper procedures have been followed
- Nonparty has a direct and immediate interest in the action
- Intervention will not enlarge the issue in the litigation
- Reasons for invention outweigh any opposition by the parties in the action
51
Intervention - Direct & Immediate Interest
Where the judgment itself adds to or detracts from non-party's legal rights w/o reference to rights/duties not involved in the litigation
52
Class Action Requirements
- Predominant common questions of law or fact
- Class rep has claims or defenses typical to the class
- Class rep adequately represents class
53
CA v. Fed Class Actions
- CA class π's can aggregate to meet amount in controversy
- FAA preempts CA's law - prefers arbitration even in consumer Ks
- Confidentiality can't be waive w/o express consent, which named π cannot give for unnamed members
54
Scope of Discovery
Any matter, not privileged, that is relevant to the subject matter of the litigation (LIBERALLY CONSTRUED)
55
Initial Disclosures
- Not required in CA
| - Case questionnaire is closest thing, but it's optional and only in limited civil cases
56
Discovery Relevance
Might reasonably assist a party in evaluating its case, preparing for trial, or facilitating settlement
57
Privacy Balancing
1) Claimant has legally protected privacy interest
2) Claimant possesses a reasonable expectation of privacy under the particular circumstances
3) Invasion of privacy must be serious in nature
58
Absolute Work Product Protection
Applies to opinion work product
59
Qualified Work Product Protection
Applies to "ordinary" work product
Party seeking discovery has the burden of showing that denial of discovery will unfairly prejudice him in preparing his claim or defense or will result in injustice
60
Interrogatories
Special = 35 max
Official forms = unlimited
Must be answered w/in 30 days (+5 if mailed)
61
Depositions (CA Differences)
* *Perjury is not complete until transcript is signed**
- No limit on # in unlimited cases (1 in limited)
- Exemptions from 7 hr time limit: experts, complex cases, entity persons most knowledgable, and some employment cases
- Location: w/in 75 miles of deponent's residence or org's principal business or executive office
62
Persons Most Knowledgable Depos
- Entity is only required to designated CURRENT officers, directors, agents, or employees
- BUT entity bears the burden of producing someone w/ knowledge of the categories of info sought
63
Physical Exams
- Authorized when the condition of a party or other person is in controversy
- ∆ may demand one of a PI π w/o leave of ct, any others require leave
64
Mental Exams
Good cause:
- specific facts justifying recovery
- inquiry relevant to subject matters of the action OR reasonably calculated to lead to the discovery of admissible evidence
-Limited to scope of mental state put in controversy
65
Inspection of Docs and Things
Responding: provide docs and serve written response in order to retain objections
Balance state interest in:
- facilitating the search for truth and promoting justice through pretrial discovery
- protecting the legitimate privacy of litigants and 3rd parties
66
Requests for Admission
- Seek to eliminate the need to submit further evidence on a matter that is admitted or deemed admitted
- Limited to 35
- Motion process required to deem admitted (automatic in fed)
67
RFA Statute
Unless responding party moves promptly for a protective order, he or she, w/in 30 days of service, shall respond in WRITING under oath and SEPARATELY to each RFA and shall answer the substance of the requested admission, or set forth an objection to the particular request
68
RFA Safe Harbor
If responding party files substantially compliant responses before the hearing on a motion to deem admitted, the motion will be taken off the calendar
69
Expert W Declaration
Must be signed by atty under penalty of perjury and include:
- summary of qualifications
- stmt of general substance of anticipated testimony
- representation that trial expert has agreed to testify
70
ESI - Cost of Production
If necessary, responding party, at the reasonable expense of the requesting party, shall, through detection devices, translate any data compilations included in the demand into a reasonably usable form
71
Meet and Confer
- Must make a reasonable and good faith attempt to resolve a discovery dispute before filing a motion to compel
- Outright denial of further discovery is appropriate ONLY in cases of: clear intent to burden or harass, clear flaunting of statutory responsibilities, established track records of lack of good faith, "and the like"
72
Protective Orders
Ct must weigh the privacy interest implicated by discovery against the countervailing state interest in maximizing truth through access to discovery
- -consider alternatives and limitations
- -remember state can also have an interest in protecting privacy
73
Fast Track Rules - Cutoffs
- Discovery = 30 days before the date initially set for trial
- Motion practice = 15 days
- NOT changed by continuance of trial or postponement
- After cutoff, need to file motion to reopen
74
Discovery of ∆'s Financial Condition
Ct must:
- weight evidence in favor AND opposition of the motion for discovery
- find that it is VERY LIKELY π will prevail on his punitive damages claim
75
Vacation of Arb. Award
```
Only available for:
-Corruption
-Exceeding scope of power
-Substantial prejudice
-Grave misconduct
NOT for error of law/fact on the face of the award, even if error will work substantial injustice
```
76
Waiver of Right to Arbitrate
- party's action are inconsistent w/ right to arb
- litigation machinery has been substantially invoked and parties were well into prep for lawsuit before party notified opposition of an intent to arb
- party either requested arb enforcement close to trial date or delayed for a long period before seeking a stay
- ∆ seeking arb filed a counterclaim w/o asking for a stay
- important intervening steps had taken place
- delay affected, misled, or prejudiced the opposing party
77
FEHA claims are mandatorily arbitrable only if...
Agreement meets certain requirements:
- provides for neutral arbitrators
- provides for more than minimal discovery
- requires a written award
- provides for all types of relief otherwise available in CA
- does not require the employee to pay unreasonable costs or any arbitrator's fees or expenses as a condition of access to the arb forum
78
Arb. Clause Severability
Not available when multiple unlawful provisions indicate a "systematic effort to impose arb on an employee not simply as an alternative to litigation, but as an inferior forum"
79
Judicial Arbitration
- Conducted by atty/subject matter expert
- Not binding - either party can seek a trial de novo in superior ct
- Paid for by public, not parties
- Full discovery rights
- Generally follows rule of evidence
80
Mediation Confidentiality
All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or mediation consultation shall remain confidential
81
Mediator's Report
Neither a mediator, nor anyone else, may submit to a ct and a ct may not consider, any report, assessment, evaluation, recommendation, or finding of any kind by a mediator concerning the mediation conducted by ct rule or other law and that states only whether an agreement was reached, unless all parties agree otherwise
82
Voluntary Dismissal
- W/ or w/o prejudice at any time before the commencement of trial or before ∆ files a motion for summary judgment
- Ineffective when trial court has made a formal indication of the merits or when procedural dereliction has made dismissal otherwise inevitable
83
Failure to Prosecute Timeline
Involuntary dismissal is:
- Discretionary where π has not served ∆ w/ process w/in 2 yrs of filing or case has not been brought to trial w/in 2 yrs of filing
- Mandatory where π has not served ∆ w/in 3 yrs or case has not been brought to trial w/in 5 yrs
84
Involuntary Dismissal
Where the trial ct has discretion to dismiss, it is an abuse of that discretion to fail to weigh all factors in light of a credible excuse for delay
85
Failure to Prosecute Tolling
-Complete stays of entire action
-Any other reason bringing the action to trial was impossible, impracticable, or futile
(key = whether π exercises reasonable diligence in prosecuting her case)
86
Doc's Req'd for Application for Entry of Default
- Request to Enter Default form, including a declaration of mailing copies to ∆
- Proof of service of summons or of notice of order fixing time for further response
- Stmt of damages (if not alleged in complaint) and proof of service thereof
87
Relief from Default Judgment
Ct may relieve a party or his/her legal representative from a judgment, dismissal, order, or other proceeding taken against it through its own mistake, inadvertence, surprise, or excusable neglect
88
Penalty Defaults
No damages allowed above those in the complaint, even where sanctionable behavior is particularly egregious
89
Good Faith Settlement Rule
A judicial determination of settlement in good faith discharges the settling party from all liability for any contribution to any other parties
90
Settlement Not in Good Faith
- When settlement w/ a tortfeasor has been judicially determined not to have been made in good faith, the non-settling TFs remain jointly and severally liable.
- The amount paid in settlement in credited against any damages awarded against non-settling TFs, who are then entitled to contribution from the settling TF for amounts paid in excess of their equitable shares of liability
91
Insolvent ∆s
CA will apportion non-economic damages where a ∆ is insolvent in a PI, property damage, or wrongful death action based upon principles of comparative fault
92
998 Offer
- If person who refuses one goes to trial and his result is not more favorable than the offer, then the offeror is the prevailing party for cost purposes
- Absent an unequivocal rejection, the offer may be accepted by the offeree during the statutory period unless revoked by the offeror
