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CA Civil Procedure > PLEADINGS > Flashcards

Flashcards in PLEADINGS Deck (15):
1

Basic idea of pleadings

Timing and some of the terminology are different from federal court.

2

Frivolous litigation. There are two general statutes in state practice.

  1. California has a statute that mirrors Federal Rule 11. It works just like Federal Rule 11mwith one exception:
    • Different from federal court: the 21-day safe harbor applies not only in motions brought by a party, but also when the court raises the issue on its own.
  2. Another statute allows the court to order a party/attorney (or both) to pay expenses and attorney’s fees incurred because of bad faith or frivolous tactics in litigation.

3

“Frivolous” means:

something raised was completely without merit or asserted for the sole purpose of harassing an opposing party.

There is no safe harbor - you can file the motion immedietly

There must be a motion (by party or the court) and opportunity to be heard.

4

Complaint. California has always followed “fact pleading.” Requirements for its Contents:

  1. Statement of facts constituting the cause of action, stated in ordinary and concise language.
    • Fact means the ultimate facts constituting the COA
  2. Demand for judgment for the relief to which the pleader claims to be entitled.

5

Must P allege subject matter jurisdiction?

No - thats only for Federal Ct

6

Remember in a limited civil case, the caption to the complaint must state...

it is a
limited case.

7

If P seeks damages, must she state the amount?

Generally Yes

8

in what kinds of cases is P forbidden from stating a damages amount in the complaint?

  1. Personal Injury
  2. Wrongful Death
  3. Seeking Punative Damages

 

9

So in a personal injury or wrongful death case, how can D find out about the amount of actual damages?

And anytime there’s a claim for punitive damages, how
does D find out about the amount?

1)D requests a statement of damages (SOD); and
2)the P must provide the SOD within 15 days

10

If P fails to provide the SOD, D can...

move for a court order requiring P to do so.

11

Also, in personal injury or wrongful death cases, and anytime P seeks punitive damages, what must P do before taking D’s default?

Must serve an SOD on the D

12

Remember the requirement of “fact pleading.” What does this mean for the plaintiff? She must allege the:

1) ultimate facts
2) on each element
3) of each cause of action

13

Heightened pleading requirements.

  1. circumstances constituting fraud must be pleaded with particularity.
  2. civil conspiracy, tortious breach of contract, unfair business practices, and product liability claims among multiple defendants resulting from exposure to toxins.

14

Fictitious defendants.

If P is genuinely unaware of the identity of a D, she may
name the D as a “Doe” defendant. She must also allege that she is unaware of the D’s true identity and must state the cause of action against the “Doe” defendant (that’s a
“charging allegation”)

15

Verified pleadings.

  • These are signed under oath by the party. They are rare, but are required, for example, in shareholder derivative suits and for suits against government
    entities.
  • they may be treated as evidence for Summary Judgment