LECTURE HANDOUT

CALIFORNIA
CIVIL PROCEDURE

PROFESSOR RICHARD D. FREER

Copyright © 2019 by BARBRI, Inc. CAH

 CIVIL PROCEDURE—CALIFORNIA

CALIFORNIA CIVIL PROCEDURE

BY PROFESSOR RICHARD D. FREER

FIRST BIG TOPIC: ARE WE IN THE RIGHT COURT?

I. PERSONAL JURISDICTION
A. Basic idea. This involves one question: can P sue D in this state? That’s all. It is
not concerned with what COURT we go to in that state – that is subject matter
jurisdiction.

-- Whether there’s personal jurisdiction is a two-step analysis:

1. Satisfy a state statute AND

2. Satisfy the Constitution (Due Process).

-- Is the analysis different depending on whether the case will be filed in

federal court or state court?

__________________________________________________________

__________________________________________________________

-- So whether a federal court in CA has PJ is assessed exactly the same

way as whether a state court in CA would have PJ.

-- Even though there are two steps to the analysis, in CA the first step is so
easy that the essay questions have focused on the second step (we’ll see
why next).

B. In personam jurisdiction. P sues to impose a personal obligation on D.

1. Statutory analysis. Most states have a series of statutes that allow

personal jurisdiction in different situations, such as personal jurisdiction
over defendants who (1) are served with process in the state, or (2) are
domiciled in the state, or (3) do certain things (e.g., commit a tortious act,
conduct business) in the state.

In CA, though, the statutory analysis consists of one sentence. All you need
to say is:

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2. Constitutional analysis.
We already did all this! It’s the first thing in the Federal Civil Procedure handout.

But because people love PJ, though, let’s review some things.

-- Paul, a citizen of Mexico, attending college in San Diego on a student

visa, drove to San Francisco for a music festival. While there, he bought
snacks from Valerie, a resident of San Francisco. The snacks were tainted
and Paul suffered personal injuries from ingesting them. He sues Valerie in
state court in CA. Does CA have PJ over Valerie?

__________________________________________________________

__________________________________________________________

__________________________________________________________

-- Now let’s say D is a non-resident of CA. Remember that D must have

purposefully availed of the forum – much reach out to the forum to gain
some benefit or protection.

-- A hotel in State A maintains an interactive website, on which

people in State B can get rate information, make reservations, and
get driving directions from State B to the hotel. Can this support
specific jurisdiction in State B over the State A hotel?

_____________________________________________________

_____________________________________________________

_____________________________________________________

-- What about maintaining a passive website in State A, which only provides

information. Would that constitute purposeful availment of State B?
__________________________________________________________

__________________________________________________________

II. SUBJECT MATTER JURISDICTION

A. Basic idea. Here, we’ve decided we have personal jurisdiction over D in California
and that we’ll sue in state (not federal) court. There is one trial court in California –
the Superior Court. Each of the 58 counties has one Superior Court.

B. Superior Court. The Superior Court has general subject matter jurisdiction. What
does that mean? _________________________________________________

_______________________________________________________________

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-- Are there any kinds of cases the Superior Court cannot hear? Yes, but very few.
Cases arising under some federal laws must be brought in federal court – e.g.,
patent infringement, bankruptcy, some federal securities and antitrust claims. But
most cases arising under federal law can be heard by state courts.

-- Within the Superior Court, there are different classifications of cases.

1. Limited Civil Cases. These are civil cases in which the amount in
controversy

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__________________________________________________________

-- If P demands exactly $25,000, is that a limited civil case?

__________________________________________________________

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-- In a limited civil case, you get limited discovery, cannot file a “special
demurrer” (pages 15-16) and have expedited jury trial. Also, a limited case
generally cannot grant a permanent injunction or declaratory judgment or
determine title to land.

-- Biggest limitation: in a limited case, ____________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

2. Unlimited Civil Cases. These include civil cases in which the plaintiff sues
to determine title to land or seeks general equitable relief. What are
examples? _________________________________________________

__________________________________________________________

__________________________________________________________

-- What about a case seeking damages? It is unlimited if the amount in

controversy: ________________________________________________

__________________________________________________________

3. Small Claims Cases. These are heard in a small claims division of the
Superior Court. Procedures are simple. What is the amount in controversy
for these?

-- If plaintiff is an individual: $10,000 or less.

-- If plaintiff is an entity: $5,000 or less.
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C. Classification and Reclassification.

1. Plaintiff initially determines the classification.

-- In doing so, what do we consider? The “amount of the demand, or the

recovery sought, or the value of the property, or the amount of the lien” in
controversy.

-- Does this include interest on the claim or costs? ___________________

__________________________________________________________

-- If plaintiff files a limited civil case, she must note the classification in the
caption of the complaint. You need not note if it is unlimited.

2. Reclassification.

-- If a case is misclassified or if subsequent events make it clear that the

original classification should be changed, does the court lose subject
matter jurisdiction? NO! The case is simply reclassified. This can happen in
two ways:

1. Automatic. If P amends her complaint in a way that changes the

classification (raises or decreases the amount in controversy from
limited to unlimited or unlimited to limited), what happens?

_____________________________________________________

_____________________________________________________

_____________________________________________________

2. On motion. A party can move to reclassify. Or the court can

reclassify on its own motion. What is required here? ____________

_____________________________________________________

_____________________________________________________

_____________________________________________________

-- In determining whether to reclassify, can the court consider the merits of

the underlying claim? _________________________________________

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-- Can the court consider materials beyond the pleadings, such as a judicial
arbitration award and settlement conference statement? ______________

__________________________________________________________

__________________________________________________________

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-- If there is a motion to reclassify from unlimited to limited, reclassification

is OK if the judge finds that the case _____________________________

__________________________________________________________

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__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

-- If there is a motion to reclassify from limited to unlimited, reclassification

is OK if the judge finds ________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

3. Effect of multiple claims. Rule: the entire case is either limited or

unlimited. So no case is mixed, with some limited and some unlimited
aspects.

-- P asserts three unrelated claims against D – one for $12,000, one for
$8,000, and one for $6,000. Can this be filed as an unlimited civil case?

__________________________________________________________

__________________________________________________________

__________________________________________________________

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-- P-1 asserts a claim of $26,000 against D and P-2 asserts a claim of

$14,000 against D in the same case. Can this be filed as an unlimited civil
case? _____________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

-- P sues D for $20,000 in a limited civil case. D files a cross-complaint

against P for $26,000. What happens? ___________________________

__________________________________________________________

__________________________________________________________

-- P sues D for $26,000 in an unlimited case. D files a cross-complaint

against P for $12,000. What happens? ____________________________

__________________________________________________________

__________________________________________________________

III. VENUE
A. Basic idea. Now we know the case will be filed in Superior Court. But where?

-- In federal court, we lay venue in an appropriate federal district. What is the

relevant place for laying venue in Superior Court? ________________________

_______________________________________________________________

B. Local actions.

-- BTW, we did not talk about local actions in federal court. The doctrine has been
abolished as a matter of federal venue, but is relevant in CA state court.

-- A local action is a case for recovery of land, or determination of an interest in

land, or to recover for injury to land.

-- In a local action, where do we lay venue? _____________________________

_______________________________________________________________

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C. If it’s not a local action, it is called a “transitory action.” Venue choices:

-- General rule: venue is OK in a county where __________________________

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-- Additional venue in contract cases: venue is also OK in the county where ___

_______________________________________________________________

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-- Additional venue in personal injury or wrongful death: venue is also OK in the

county where ____________________________________________________

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-- Paul, who resides in San Diego County, is injured in San Francisco by

eating tainted snacks sold to him in San Francisco by Valerie, who resides
in San Francisco County. Paul sues Valerie in Superior Court in San Diego
County. Is venue OK? _________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

-- If D is a corporation, venue is OK in the county where (1) it has its principal place
of business (PPB), or (2) where it entered or is to perform a contract, or (3) where
the breach occurred or liability arises.

-- If D is an unincorporated business, venue is OK in county of PPB if that is on file

with secretary of state. Otherwise, where any member or partner resides.

-- What if all defendants are non-residents of California? Venue is OK: ________

_______________________________________________________________

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-- But if there is a California resident defendant, venue must be proper as to her.

-- P sues D-1, who resides in Los Angeles County, and D-2, who is a non-resident
of the United States. The suit concerns personal injury suffered in Orange County.
Where is venue proper? ____________________________________________

_______________________________________________________________

_______________________________________________________________

_______________________________________________________________

D. “Mixed” cases. P joins Ds or types of relief that call for different venues.

-- P joins a local cause of action, for which venue is proper in Riverside County,
with a transitory cause of action, for which venue is proper in Alameda County.
What is the proper venue? __________________________________________

_______________________________________________________________

_______________________________________________________________

E. Transfer of venue. We’re moving the case from the Superior Court in one county
in California to the Superior Court in another county in California.

-- If the original venue is improper, D can move to transfer to a proper county.

When must this motion be made? ____________________________________

_______________________________________________________________

_______________________________________________________________

_______________________________________________________________

_______________________________________________________________

-- If the original venue is proper, a court may, on motion, transfer if:

1. There is reason to believe impartial trial cannot be had in the original

venue; or
2. Convenience of witnesses and ends of justice would be promoted; or
3. No judge is qualified to act.

-- If the court grants the motion under this statute, it transfers to a county on which
the parties agree. What if the parties do not agree? _______________________

_______________________________________________________________

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-- Venue-selection clause.

-- P and D enter into a valid (reasonable) provision requiring that litigation

between P and D shall be filed in Superior Court in Marin County. P sues in
San Bernardino County. Will the court enforce the venue-selection clause
by transferring the case to Marin County?

-- If Marin County is a proper venue under the statutes: __________

-- If Marin County is not a proper venue under the statutes: ______

_____________________________________________________

_____________________________________________________

_____________________________________________________

F. Inconvenient forum (forum non conveniens). As in federal court, this is where a

court dismisses (or stays) because the far more convenient and appropriate court
is in a different judicial system (e.g., state court in Missouri or a court in a foreign
country).

-- By statute in California, state courts may dismiss or stay on motion (by a

party or by the court). It must find that “in the interest of substantial justice
an action should be heard in a forum outside [California].” The court looks
at the same factors as in federal court.

-- If the court grants the motion, it may do so on condition, e.g., that D

waive a personal jurisdiction or statute of limitations objection in the other
forum.

-- P and D enter into a valid forum selection clause (i.e., the clause is not
unreasonable). It provides that litigation between P and D shall be filed in
state court in Maine. P sues D in California on a cause of action covered by
the forum selection clause. What should D do? _____________________

__________________________________________________________

__________________________________________________________

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SECOND BIG TOPIC: LEARNING ABOUT THE CASE

I. SERVICE OF PROCESS
A. Basic idea. D must be served with process (summons and a copy of the
complaint).

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B. Who may serve process? ___________________________________________

_______________________________________________________________

C. Methods for serving process inside California.

1. Personal service. Good anywhere in the state (same in federal court).

2. Substituted service. Different from federal court in several ways.

-- You can only use substituted service to serve an individual if personal

service “cannot with reasonable diligence” be had. So you must try
personal service first and only if it is not possible can you use
substituted. Then the requirements are:

a. Must be made at D’s usual abode (as in federal court)

b. Must be left with a competent member of the household who is at

least age 18 (more specific than federal court, which requires
suitable age and discretion)

c. That person must be informed of the contents (not required in

federal court) and

d. Process must also be mailed by first-class mail, postage prepaid to D

(not required in federal court).

When is such substituted service deemed effective? _________________

__________________________________________________________

3. Service by mail. Copy of summons and complaint and two copies of

acknowledgment (waiver form) are mailed to D, with self-addressed stamped
envelope addressed to P. Works like waiver in federal court, except this is
considered “service” and not “waiver of service.” Two other points:

1. D has 20 days (instead of 30 days in federal court) to return the

form, and

2. _____________________________________________________

_____________________________________________________

_____________________________________________________

-- Is it OK to serve process inside California by mailing it return receipt

requested? _________________________________________________

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4. Corporations and other businesses. Deliver process to agent for service of

process or to an officer, or general manager. These people may be served
personally or process left with someone apparently in charge at her office
during usual office hours. ______________________________________

__________________________________________________________

5. Service by publication. Only available on affidavit from P’s attorney

showing that D cannot be served, after demonstrating reasonable diligence
to serve D in another way. It is a last resort.

D. Serving process outside California (but in the United States).

-- This can be done by any of the methods allowed for instate service (above).
-- OR this can be done by mail, postage prepaid, return receipt requested. This is
easier than the instate service by mail we saw on the preceding page. Here you
don’t need to send a waiver form and have D sign and return it.

-- Does this mean regular first-class mail? NO. It must be return receipt
requested, which is available through the Postal Service. The person who
delivers the mail to D has D sign a receipt showing that it was received.

-- Can you use this easier method to serve process inside California?

__________________________________________________________

__________________________________________________________

__________________________________________________________

-- If we mail process, prepaid, return receipt requested, when is it deemed effective?

_______________________________________________________________

E. Serving process outside the United States. ____________________________

_______________________________________________________________

F. Immunity? D, a nonresident, is served with process in Bakersfield while in

California to be a witness or party in a civil case. Is D immune from being served
with process for a California state-court civil case? ________________________

-- Is this the same as in federal court? __________________________________

_______________________________________________________________

-- So a person in California to be a witness or party in another civil case can be

served for a civil case in state courts, but is immune from service for a federal civil
case.

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G. Subsequent documents. As in federal court, can be delivered or mailed or (if the

party agrees, e-mailed). If mailed, add 5 days to time required for response (10
days if out of state). (Federal court we add 3 days.)

II. PLEADINGS
A. Basic idea. Timing and some of the terminology are different from federal court.

B. 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 11, with 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.

-- “Frivolous” means something raised was completely without merit or

asserted for the sole purpose of harassing an opposing party. __________

__________________________________________________________

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

C. Complaint. California has always followed “fact pleading.” Requirements:

1. Contents:

a. Statement of facts constituting the cause of action, stated in

ordinary and concise language. ____________________________

_____________________________________________________

b. Demand for judgment for the relief to which the pleader claims to
be entitled.

So there are two main parts to the complaint. What about these particulars?

-- Must P allege subject matter jurisdiction? ________________________

-- Remember in a limited civil case, the caption to the complaint must state
it is a limited case. ___________________________________________

-- If P seeks damages, must she state the amount? ___________________

__________________________________________________________
-- Exception #1: in what kinds of cases is P forbidden from stating a
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damages amount in the complaint? ______________________________

__________________________________________________________

__________________________________________________________

-- Exception #2: also, whenever P claims punitive damages, she is

forbidden from stating the amount in the complaint. __________________

__________________________________________________________

-- 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? ___________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

-- If P fails to provide the SOD, D can move for a court order requiring P to
do so.

-- Also, in personal injury or wrongful death cases, and anytime P seeks

punitive damages, what must P do before taking D’s default? __________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

2. Remember the requirement of “fact pleading.” What does this mean for a
claimant? __________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

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3. Heightened pleading requirements. The big one: circumstances

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

4. 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”).

-- P, while walking in the crosswalk, is hit by a car driven by D-1. D-1 had
been rear-ended by a car driven by D-2, which knocked D-1’s car into P.
After the wreck, D-2 flees; he had been driving a stolen car. P sues D-1 by
name and sues D-2 as a “Doe” defendant. P also alleges that she is
unaware of D-2’s true identity and states a charging allegation against D-2.
Is this OK? _________________________________________________

__________________________________________________________

__________________________________________________________

-- Fictitious defendants may come up with statute of limitations issues –

pages 21-22.

5. 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. Remember this about verified pleadings:

__________________________________________________________

D. Defendant’s response. Defendant must respond in an appropriate way within 30

days after service of process is deemed complete. (Federal court it’s 21 days after
service.)

1. General demurrer. This can be used to assert some defenses. Which is the
most important? _____________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

-- This is like the federal motion to dismiss for failure to state a claim, so the court
takes factual allegations as true and limits its assessment to the complaint (and
matters of which it takes judicial notice). It asks: if these facts were true, would P
win? If the general demurrer is sustained, usually the court will let P try again to
state a cause of action.

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-- Watch for this to test substantive elements of a cause of action. _______

__________________________________________________________

-- What else can be raised by general demurrer? ____________________

__________________________________________________________

-- Can these defenses be raised in the answer instead of by special

demurrer? __________________________________________________

__________________________________________________________

-- Or could be in a motion “for judgment on the pleadings” if it is raised

after D has pleaded and time for demurrer has expired.

-- Is a general demurrer considered a pleading? _____________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

2. Special demurrer. This can be used to assert many (pretty minor) defenses.

-- The complaint is uncertain, ambiguous or unintelligible. This is like the

federal motion for more definite statement. ________________________

__________________________________________________________

-- The complaint is unclear about which theories of liability are asserted

against each of the defendants.

-- Lack of legal capacity.

-- Existence of another case between the same parties on the same

cause of action.

-- Defect or misjoinder of parties.

-- Failure to plead whether a contract is oral or written.

-- Failure to file a “certificate of merit.” This is required to sue architects,

engineers, or land surveyors for professional negligence. In such cases, P’s
attorney must file a certificate stating that she consulted with a professional
and there is reasonable cause to file the case. ______________________

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-- Lack of certificate can also be raised by motion to strike (page 19).

-- Instead of a special demurrer, can D raise these various defenses in her

answer? ___________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

-- What if D does not raise them by demurrer or answer? ______________

-- As with the general demurrer, the court treats allegations of fact as true
and limits assessment to what’s in the complaint (and matters of judicial
notice).

-- Is a special demurrer considered a pleading? _____________________

-- In what cases are special demurrers not available? _________________

__________________________________________________________

3. Special rules about demurrers.

-- Before filing any demurrer, the parties must meet and confer (to try to
work things out and avoid the demurrer). When must they do this?_______

__________________________________________________________

-- Suppose the parties cannot meet in that time frame. D gets an automatic
30-day extension of time in which to answer or demur. To get this, though,
D 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.
When must D file and serve this document?

__________________________________________________________

__________________________________________________________

-- The 30-day extension runs from the time the demurrer was due.

-- If the parties do meet and confer, but D then files the demurrer, D 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.

-- P files a complaint. D properly demurs. The court sustains the demurrer

but grants P leave to file an amended complaint. D cannot demur to this
amended complaint on grounds that were available to attack the first
complaint.

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-- Terminology. Motions are either “granted” or “denied.” What about

demurrers?

__________________________________________________________

__________________________________________________________

4. Motion to quash service of summons.

-- This is used to assert what defenses? ___________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

-- When you bring a motion to quash service of summons, what are you
making? ___________________________________________________

__________________________________________________________

__________________________________________________________

-- This is contrasted with a “general appearance.” A general appearance

constitutes consent to PJ. To avoid waiving the three defenses listed
above, when must you make the motion to quash service of summons?

__________________________________________________________

__________________________________________________________

__________________________________________________________

-- If you make a general appearance, you waive the three defenses listed
above. What is a general appearance? ___________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

-- Examples of general appearances: answer, demurrer, motion to strike,

motion to transfer venue, motion to reclassify case.

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-- P sues D. D files a demurrer and then, two days later, files a motion to
quash service of summons. D has waived the defenses of PJ, improper
process, and improper service of process. Why? ____________________

__________________________________________________________

__________________________________________________________

-- P sues D. D files an answer in which he asserts the affirmative defense of

lack of personal jurisdiction. That would be OK in federal court, because D
raised PJ in her first Rule 12 response. But in state court, D has waived the
defense of lack of personal jurisdiction. ___________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

-- P sues D. D files a motion to quash service of summons at the same time

as a demurrer, answer, or motion to strike. Is that OK? ________________

__________________________________________________________

__________________________________________________________

-- If the court denies the motion to quash, D must “plead” within 15 days.
And because demurrer is a pleading, you could demur or answer within 15
days.

-- Suppose the court denies the motion to quash service of summons. D

thinks the court is wrong. Can D wait until final judgment and raise the
issue on appeal? NO. The only way to seek appellate review of the denial
of the motion to quash is: ______________________________________

__________________________________________________________

__________________________________________________________

5. Motion to dismiss or stay for inconvenient forum (forum non

conveniens). What is the timing for bringing this motion? ______________

__________________________________________________________

__________________________________________________________

__________________________________________________________

-- Can you make this motion after your answer? _____________________

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6. Motion to strike. A party can file this to strike all or part of any pleading.
The court may strike “irrelevant, false, or improper matter.” Like in federal
court.

-- P files a malpractice case against an architect, engineer, or land surveyor

without a “certificate of merit” from P’s lawyer. D can attack the complaint
with a special demurrer (pages 15-16) or could move to strike the entire
complaint.

-- Anti-SLAPP motion to strike. The legislature is concerned about

strategic lawsuits against public participation (SLAPP). These are suits
brought to chill the valid exercise of First Amendment rights (e.g., speech,
petition of government).

-- Dee reports to the Health Department that Grocer has violated various
health ordinances. Grocer sues Dee. That may be a SLAPP suit – Grocer is
suing Dee because Dee exercised First Amendment rights. Dee makes an
anti-SLAPP motion to strike the suit. What happens if Dee shows that he
was sued for protected activity? _________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

-- Because so many anti-SLAPP motions were made, the legislature limited

availability of the motion. So D is not supposed to make the motion if P’s
case is truly in the public interest or on behalf of the general public. _____

__________________________________________________________

__________________________________________________________

__________________________________________________________

-- Let’s say the court grants Dee’s motion to strike, so the case is stricken.
Now Dee can sue Grocer for malicious prosecution. This is called a
“SLAPPback” suit.

7. Answer. This is like the answer in federal court.

-- General denial: D denies each and every allegation of P’s complaint. This
is permitted if D can do so consistent with rules about frivolous litigation.

-- In stating affirmative defenses, D must: __________________________

__________________________________________________________

__________________________________________________________
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-- If P filed a verified (under oath) complaint, D must file a verified answer.

-- Can an answer include a demand for recovery against P, e.g., damages?

__________________________________________________________

__________________________________________________________
8. Timing. No later than 30 days after service of process is deemed
complete, D must (to avoid default) answer or demur or make one of the
motions noted.

F. Claims by Defendant. As in federal court, D can assert a claim (1) against the
plaintiff (an opposing party), (2) against a co-defendant, or (3) against an
impleaded third-party defendant. In federal court these claims had different names
– (1) counterclaim, (2) cross-claim, and (3) impleader.
-- In Superior Court, all three of these claims have the same name. What are they
all called? _______________________________________________________

-- The cross-complaint must be a separate document from the answer.

1. Cross-Complaint against P. Like the federal counterclaim, except it is not

part of the answer (it is a separate document). This is to be filed before or
at the same time as the answer.

a. It is against an opposing party (e.g., D v. P).

b. What if the cross-complaint by D against P arises from the same

transaction or occurrence as P’s cause of action against D? _______

_____________________________________________________

_____________________________________________________

c. What if the cross-complaint by D against P does not arise from the

same T/O as P’s cause of action? ___________________________

_____________________________________________________

2. Cross-Complaint against co-party. Like the federal cross-claim. May be

filed anytime before the court has set a trial date.

a. It is a claim against a co-party, by a defending party.

b. It must arise from the same T/O as the underlying dispute.

c. It is never compulsory. The party may sue on this in a separate case.

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 CIVIL PROCEDURE—CALIFORNIA

3. Cross-Complaint against third-party defendant (TPD). Like federal

impleader (third-party complaint). May be filed anytime before the court has
set a trial date. It is never compulsory – so you don’t have to file it. ______

__________________________________________________________

__________________________________________________________

4. The person against whom any cross-complaint is asserted must do what?

__________________________________________________________

__________________________________________________________

5. If the cross-complaint is asserted against one who has not yet appeared in
the case, it must be served with summons.

G. Amending pleadings.

1. P has a right to amend before D files an answer or demurrer or even after

the demurrer is filed but before hearing on the issue raised by the demurrer.
However, this applies only if P files the amended complaint no later than the
date for filing an opposition to the demurrer. (So P does not have a right to
file an amended complaint the day before the hearing on the demurrer.)

2. Any party can seek leave to amend anytime. Same standard as in federal
court. Other rules about amendment (to conform to the evidence, relation
back etc.) work as they do in federal court.

3. If the court sustains a demurrer or grants a motion to strike, the court will
usually do so “with leave to amend.” This allows P to try again. If the court
sustains a demurrer or grants a motion to strike “without leave to amend,”
P cannot try again.

-- Is there a limit to the number of times a complaint or cross-

complaint can be amended in response to the court’s sustaining a
demurrer? Yes – there can be no more than three amended
complaints unless claimant shows additional facts to be pleaded to
cure the problem.

4. Relation back and fictitious defendants. Relation back is OK if:

a. Original complaint was filed before the statute of limitations ran and
contained charging allegations against the fictitious defendant(s).

_____________________________________________________

b. P was genuinely ignorant of the identity of the Doe defendant(s) and

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22. CONSTITUTIONAL LAW
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c. P pleaded that ignorance in the original complaint. If all these are

met, then: _____________________________________________

_____________________________________________________

_____________________________________________________

_____________________________________________________

_____________________________________________________

III. DISCOVERY
A. Are there required disclosures? ______________________________________

B. Discovery tools. P must get a court order to take discovery from D within 10 days
after D was served with process (within 20 days to take D’s deposition).

1. Depositions (oral and on written question). Same as in federal court as to

the basics. Different from federal: In state court there is no presumptive limit
on the number of depositions to be taken in the case (federal court it’s no
more than 10 unless court orders or parties agree). In state and federal court,
the presumption is that a deposition consists of one day of seven hours.

-- A deponent who is asked to produce ESI that is password protected or

otherwise inaccessible must provide either (a) direct access to the ESI or (b)
a translation of the ESI in a useable (readable) form.

2. Interrogatories. Same as in federal court as to basics, so can only be sent

to parties.

-- There are form interrogatories approved by the Judicial Council. There is

no limit to the number of form interrogatories that can be served on other
parties.

-- But what if a party wants to write specific interrogatories? That’s OK, but
they may not contain subparts.

-- What is the maximum number of drafted interrogatories allowed in an

unlimited civil case? __________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________
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 CIVIL PROCEDURE—CALIFORNIA

3. Requests to produce (inspection demand). Like requests to produce in

federal court. Re electronically stored info (ESI), specify form desired (hard
copy or electronic).

-- Is there a statutory limit on how many of these can be served without

court permission in an unlimited civil case? ________________________

__________________________________________________________

-- The California statute does not allow use of these to get information from a
non-party. But it is possible to get discovery of things from a non-party. How?

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

-- “Duces tecum” means bring the specified things with you.

-- For business records, you can just subpoena them without taking a
deposition.

4. Medical examination. Same as in federal court, so you must get a court

order. Except in state court, in one kind of case, D has a right to demand
one physical examination of P. What kind of case? ___________________

__________________________________________________________

__________________________________________________________

-- In California, if it is a physical exam, the lawyer for that person has the
right to attend the examination. If it is a mental exam, the lawyer can attend
only if there is a court order allowing it.

5. Request for admission. Same as in federal practice.

-- What is the maximum number of requests for admission that can be

served on a party in an unlimited civil case? ________________________

__________________________________________________________

-- But there is no limit on the number of requests to admit the genuineness

of documents.

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6. Discovery in limited civil cases. There are strict limits on use of discovery tools.

-- How many depositions can a party take?_________________________

-- How many interrogatories, inspection demands, and requests for

admission can each party propound to another party? ________________

__________________________________________________________

-- In a limited civil case, can the parties ever get additional discovery? ____

__________________________________________________________

7. Supplemental discovery – in unlimited cases only. 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, she
can propound a “supplemental demand for inspection,” which demands
inspection of later-acquired or later-discovered documents or things.

-- So in state court: ___________________________________________

__________________________________________________________

-- How many times can a party propound a supplemental interrogatory or a

supplemental request for production? ____________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

C. Scope of discovery.

1. Standard: can discover anything “relevant to the subject matter involved in

the pending action.”

2. Discoverable is broader than admissible – it includes things that are

“reasonably calculated to lead to the discovery of admissible evidence.”
The info requested need not be admissible, just so it is reasonably
calculated to lead to admissible evidence.

3. As in federal court, when a discovery request would intrude on privileged

matter (e.g., confidential communication between attorney and client) or
work product, the responding party must object with particularity or risk
waiver. Party claiming privilege/protection provides the court with a
“privilege log,” as in federal court.

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 CIVIL PROCEDURE—CALIFORNIA

4. Privacy. The California Constitution recognizes a right of privacy, which can

be claimed to limit discovery. It is not absolute, however.

-- How does a court determine whether to allow discovery? ____________

__________________________________________________________

__________________________________________________________

5. Work product. In federal court, work product can be generated by the

party or any representative of a party, not just by attorneys. Is the rule the
same in California courts? _____________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

-- Beyond this, it works basically as in federal court. So a writing that

reflects an attorney’s impressions, conclusions, opinions, or legal research
is absolutely protected.

-- A pro se party (not represented by a lawyer) can generate work product if

it would be WP if done by an attorney.

6. Expert witnesses. 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.
-- You can also demand reports by the expert. A party may then take her
deposition.

-- If a party does not exchange this information, the court may

exclude its expert from testifying.

-- Generally, can you discover info of consulting experts (who will not
testify at trial)? ________________________________________

D. Enforcement of discovery rules.

1. Before the case management conference (page 30), parties meet to

discuss various topics, including discovery and potential problems with
production of ESI. In addition, they generally must meet and confer to work
out problems before seeking court orders.

2. The court may sanction anyone – including parties and attorneys – who
misuses the discovery process. The person to be sanctioned must be given
notice and a chance to be heard.

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26. CONSTITUTIONAL LAW
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-- Sanctions include:

1. Monetary sanction (expenses/attorney’s fees incurred by

other party);
2. Establishment order;
3. Refusal to allow party to support its position with evidence at trial;
4. Striking pleadings;
5. Dismissing P’s case; or
6. Entering default judgment against D.

-- The court will usually start with monetary sanctions and move through
the hierarchy as warranted. It has broad discretion in selecting the
appropriate sanction.

-- When a party seeks sanctions for discovery misuse, what must it indicate
in the motion? ______________________________________________

__________________________________________________________

__________________________________________________________

3. A party may seek a protective order to protect against unwarranted

annoyance, embarrassment, oppression, burden or expense. __________

__________________________________________________________

4. A party can object that ESI is not reasonably accessible because of undue
burden or expense, but must identify the categories of sources that are not
accessible. _________________________________________________

__________________________________________________________

__________________________________________________________

THIRD BIG TOPIC: COMPLEX CASES – JOINING PARTIES

A. Proper plaintiffs and defendants. Who may be joined? Works same as in federal
court.

B. Necessary and indispensable parties. Who should be joined. Like federal

practice.

C. Impleader. Remember, this is where a defending party joins someone new (third
party defendant) who may owe him indemnity or contribution on the underlying
claim. But in California, how is it asserted? ______________________________

_______________________________________________________________

_______________________________________________________________

D. Intervention. As in federal court.

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 CIVIL PROCEDURE—CALIFORNIA

E. Interpleader. This is where someone (stakeholder) is in possession of property

but knows that several people (claimants) want it. Stakeholder does not want to
get sued by each of the claimants, so he sues them in “interpleader” and the court
figures out who owns it.

F. The Class Action. The state statute uses vastly different language than the
Federal Rule.

1. Requirements. The California statute says “when the question is one of a

common or general interest, of many persons, . . . and it is impracticable to
bring them all before the court, one or more may sue or defend for the
benefit of all.” What does the state requirement mean? _______________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

-- In considering if there is a “well-defined community of interest,” the court

will look at whether three things are true: __________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

2. Types of class actions. In federal court, there are three types of classes.
What about in state court? _____________________________________

3. 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. How
about in state court?__________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

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

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28. CONSTITUTIONAL LAW
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5. California does not require the court to appoint class counsel.

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

federal court.

7. Determining amount in controversy. Suppose a class has 26,000 members,

each of whom has been harmed $1. What is the amount in controversy for
determining whether this is a limited or unlimited civil case? ___________

__________________________________________________________

__________________________________________________________

FOURTH BIG TOPIC: ADJUDICATION

I. PRETRIAL ADJUDICATION
A. Preliminary injunctive relief. As in federal court, a party may seek a court order
maintaining the status quo pending litigation on the merits. We discussed
preliminary injunctions and TROs in the federal civil procedure lecture.

B. Voluntary dismissal.

-- P can move to dismiss any time before trial starts. The decision is for the court to
make. Is such a dismissal without prejudice? ____________________________

-- If P 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.

C. Involuntary dismissal. 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 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.

-- Mandatory dismissal: in California, the court must dismiss if _______________

_______________________________________________________________

_______________________________________________________________

_______________________________________________________________

_______________________________________________________________

_______________________________________________________________

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 CIVIL PROCEDURE—CALIFORNIA

– In (1), exclude time when all proceedings were stayed. In (2), exclude time when
a stay made it impossible to serve process.

D. Default and default judgment. D fails to respond to the complaint within 30 days
of the effective date of service of process on her. The procedure is very similar to
federal court. As in federal court, cannot recover more than you asked for in your
complaint.

1. D must be given notice of the application for entry of default.

2. Default judgment can be entered by the clerk without a judge’s

involvement if

-- D made no response at all

-- the claim is on a contract or judgment
-- the claim is for a sum certain in money
-- D was not served by publication AND
-- P provides an affidavit stating relevant facts

-- But if any of those is not true, where must the claimant go to get judgment?

__________________________________________________________

-- What does the court do? _____________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

3. D may move to set aside default or default judgment and for leave to
defend the case, based upon mistake, inadvertence, surprise, or excusable
neglect or because service of process did not result in actual notice to the
defendant. See page 34.

E. Failure to plead facts constituting a cause of action. Instead of the Federal Rule
12(b)(6), in state court how does D usually raise this? ______________________

_______________________________________________________________

F. Motion for summary judgment. The standard is the same as in federal court.

-- 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 – e.g., to determine
liability but not damages or to determine one of several causes of action – what is
it called? ________________________________________________________

_______________________________________________________________

_______________________________________________________________

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-- Assume the elements for P’s cause of action are W, X, Y, and Z. After discovery,
D moves for summary judgment and shows that P has no evidence to support
element X. What can happen if P does not proffer evidence of element X? _____

_______________________________________________________________

_______________________________________________________________

_______________________________________________________________

Special California procedural points:

1. 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. If the
moving party files and serves such a statement, the opposing party
must respond by indicating the facts she believes to be in dispute
and supporting evidence for each fact. If she does not, the court
may grant summary judgment.

2. 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 5 days before the hearing. Judge rules on
objections to evidence for that evidence relevant to the motion.

II. CASE MANAGEMENT AND ALTERNATIVE DISPUTE

RESOLUTION
A. Case management conference. Rules of Court require the court to hold initial
case management conference within 180 days after filing of complaint. At the
conference, the court reviews service, pleadings, discovery issues, potential
problems with discovery of electronically stored info (ESI), appropriateness of
alternative dispute resolution (ADR), settlement, trial date, etc. Before the
conference, parties must meet and confer and file a “Case Management
Statement” addressing such issues. Court issues case management order. This is
like the Federal Rule 26(f) conference, but there is no requirement that the parties
form a discovery plan to submit to the court.

B. “Fast track.” Court reviews each case to determine suitability for case management
program. Such cases are actively managed to meet goals of disposition.

Unlimited cases: 75% to be disposed of within 12 months of filing, 85% within 18

months of filing, and 100% within 24 months of filing.

Limited cases: 90% within 12 months, 98% within 18 months, 100% within 24 months.

C. Additional conferences. The court may order mandatory settlement conference (or the
parties may request one). Parties submit settlement conference statement in advance,
detailing the demand or offer. Additional conferences may be held as needed.
30
 CIVIL PROCEDURE—CALIFORNIA

D. Sanctions. Court may sanction party or attorney for failing to comply with rules or
orders. E.g., may dismiss defendants not served within 60 days of filing. Sanction
terminating the case is OK only if the failure to comply was the fault of the party
and not the attorney.

E. Alternative dispute resolution (ADR). Each county’s Superior Court has an ADR
program, to reduce court congestion. In larger counties, most unlimited civil cases
are submitted to “judicial arbitration” if the judge is of the opinion that P will
ultimately obtain $50,000 or less. But consumer class actions and probate cases
cannot be sent to judicial arbitration. In judicial arbitration the court refers the case
to an arbitrator, who holds a hearing; rules of evidence do not apply. Her decision
becomes a judgment unless a party demands trial de novo. But if that party does
not get a better result in trial than in the arbitration, she may be liable for the other
side’s costs from the date of the rejection, the other side’s expert witness fees,
and interest on the claim from the date of rejection (not from date of the
judgment). With judicial arbitration, the parties have discovery rights.

-- In “contractual arbitration,” parties agree in writing to arbitrate a dispute. Such

contracts are valid under Federal Arbitration Act (FAA) and state law if not the
product of unconscionability. A party can ask federal or state court to order
arbitration per the agreement and can ask a court to confirm the arbitrator’s
decision. That decision can be vacated only on limited grounds, like fraud, but
usually not for legal error. (Federal courts will vacate for arbitrator’s manifest
disregard of law (CA courts will not).) CA law does not allow consumer contracts to
waive class treatment and thus to require individual arbitration of small claims.
FAA preempts this law, and allows contracts to require individual (not class)
arbitration of small claims by consumers.

III. TRIAL, JUDGMENT, AND POST-TRIAL MOTIONS

A. Recovery.

-- In her complaint, P claims damages of $100,000. Does that limit the amount she
can recover if the case goes to trial? __________________________________

_______________________________________________________________

_______________________________________________________________

-- The complaint limits recovery only in default judgment cases.

-- Remember, in limited civil cases, ____________________________________

_______________________________________________________________

B. Jury trial.

1. Right to jury. The Seventh Amendment does not apply in state court. But
the California Constitution grants right to jury trial along the same
law/equity split as the Seventh Amendment. Some matters are handled
differently from federal court, though.
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32. CONSTITUTIONAL LAW
CIVIL PROCEDURE—CALIFORNIA

-- You get a jury to determine issues of fact relating to causes of action at

law, not equity. If case involves both law and equity, jury determines the
facts on the law cause of action and judge determines the facts on the
equity cause of action. BUT, unlike federal court, generally here ________

__________________________________________________________

__________________________________________________________

-- P’s complaint states an equity cause of action, for an injunction against

future trespass, and also seeks incidental damages for past trespass. In
federal court there is a right to have a jury determine the facts relating to
damages. What about in California state courts?_____________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

2. Requirement of demand. 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. Failure to demand constitutes waiver.

3. Number of jurors. In state court, there are ____________ 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.

4. Selection. 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). Also, each party gets six peremptory
challenges (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.”______

__________________________________________________________

__________________________________________________________

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 CIVIL PROCEDURE—CALIFORNIA

5. Verdict. In federal court, the jury verdict must be unanimous unless the
parties agree otherwise. In state court, what is required?______________

__________________________________________________________

__________________________________________________________

__________________________________________________________

6. Motion for directed verdict. This is what the federal courts call motions for
judgment as a matter of law (JMOL). Standard: reasonable people could not
disagree as to the result.

-- Technically, you move for this only at the close of all evidence. If D
moves for this at the close of P’s opening statement or at the close of P’s
evidence at trial, it is often called ________________________________

__________________________________________________________

7. Motion for judgment notwithstanding the verdict (JNOV). What the

federal courts call renewed motion for judgment as a matter of law
(RJMOL).

-- Standard: same as directed verdict. So the court is saying the jury

reached a conclusion reasonable people could not have reached. Same as
in federal court.

-- Timing: 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 entry of judgment.

-- In federal court, you must move for JMOL at trial to preserve your right to
move for RJMOL after trial. In state court, must the party moving for JNOV
have moved for directed verdict at trial? ___________________________

__________________________________________________________

C. Motion for a new trial.

1. Timing. Same as JNOV (immediately above).

2. Bases. Same as in federal court: something convinces the judge that the
parties should retry the case – “that the error complained of has resulted in
a miscarriage of justice.”

3. One ground for new trial is excessive or inadequate damages. What is the
standard for ordering new trial on this ground? _____________________

__________________________________________________________

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34. CONSTITUTIONAL LAW
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-- We saw in federal court, a court might try to avoid a new trial on this basis
by suggesting “remittitur” or “additur.” Federal courts can use remittitur but
not additur. Can California courts use both remittitur and additur? _______

__________________________________________________________

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

_______________________________________________________________

_______________________________________________________________

_______________________________________________________________

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

E. Expedited jury trial. Most limited civil cases are subject to “mandatory expedited
trial.” (In unlimited cases, the parties may agree to “voluntary expedited trial.”)

1. Number of jurors: ____________________________________________

-- Four peremptory challenges per side.

2. Juror vote required for verdict: __________________________________

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

4. Parties may agree regarding how many witnesses, evidence to be

presented, etc. They may enter a “high/low” agreement – setting out D’s
minimum and maximum liability for damages. The jury cannot be told of the
existence or terms of the high/low agreement.

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

FIFTH BIG TOPIC: APPELLATE REVIEW

A. Basic idea. In an unlimited case, we appeal from the Superior Court to the
California Court of Appeal. Appeal is to the district of the Court of Appeal to which
the county is assigned.

-- Timing: generally, the notice of appeal must be filed in the trial 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.
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 CIVIL PROCEDURE—CALIFORNIA

-- Judgments in limited civil cases and small claims matters are appealed to the
appellate department of the Superior Court.

B. Final judgment rule. Like federal courts, California follows the final judgment rule.
So generally one cannot appeal until the merits of the entire action are resolved.

-- P sues D-1 and D-2. The trial court enters summary judgment in favor of D-2. P
would like to appeal that judgment. In federal court, it would not be a final
judgment because the cause of action by P against D-1 is still pending, so the case
is not wrapped up. In state court, though, a judgment wrapping up the dispute as
to one of several parties is considered a final judgment and can be appealed.___

_______________________________________________________________

_______________________________________________________________

C. Interlocutory (non-final) review.

1. By statute, these are appealable:

-- Order denying (not granting) certification of an entire class action;

-- Order granting (not denying) new trial;
-- Order granting (not denying) a motion to quash service of summons;
-- Order granting a dismissal or stay of a case for forum non conveniens;
-- Order denying a motion for JNOV;
-- Order granting, dissolving, or refusing to grant or dissolve an injunction;
-- Order directing party or attorney to pay monetary sanctions of over $5,000.

2. Collateral order rule: 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.

3. Extraordinary (or peremptory) writ. 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 – not
routinely granted.

-- Though an extraordinary writ provides appellate review, technically, it is

not an “appeal.” What is it? _____________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

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-- The writ is issued to an inferior court (e.g., Court of Appeal to Superior Court).

-- The party seeking the writ must demonstrate:

1. That she will suffer irreparable harm if the writ is not issued
(i.e., lower court result is unusually harsh or unfair),
2. The normal route of appeal from final judgment is
inadequate, and
3. She has a beneficial interest in the outcome of the writ
proceeding.

-- If a party makes this showing, is she entitled to the extraordinary writ?

__________________________________________________________

__________________________________________________________

__________________________________________________________

-- Example: The trial court’s denial of a motion for summary

judgment is not a final judgment. The party that made the motion
may seek a writ of mandate from the court of appeal. Granting is
entirely in the discretion of the court of appeal.

-- Much more important example: in what situation is seeking a writ

of mandate the ONLY way to get appellate review? _____________

_____________________________________________________

_____________________________________________________

_____________________________________________________

SIXTH BIG TOPIC: PRECLUSION

A. Basic idea. The question is whether a judgment already entered (Case 1)
precludes litigation of any matters in another case (Case 2). We already covered
this material in the federal material. Here we are just going to review a few points.

-- Remember we apply the preclusion law of the system that decided Case 1.

-- Say Case 1 is in California court, and judgment is entered. Case 2

is in federal court (in any state). What law of claim and issue
preclusion does the federal judge in Case 2 use? ______________

_____________________________________________________

_____________________________________________________

-- Claim and issue preclusion are affirmative defenses, so defendant should

raise them in her answer.
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 CIVIL PROCEDURE—CALIFORNIA

-- How is the question often raised on the CA bar exam? ______________

__________________________________________________________

__________________________________________________________

-- This makes sense, because there is no dispute on a material issue

of fact, and somebody may be entitled to judgment because of the
judgment in Case 1.

B. How California differs from federal law.

1. Effect of appeal.

-- Suppose the judgment in Case 1 has been appealed (or the time for
appealing has not yet expired). Is that judgment entitled to claim or issue
preclusion effect?

-- Federal law: _________________________________________

-- California law: ________________________________________

2. What is “on the merits” for preclusion purposes?

-- We saw the general rule that any judgment is “on the merits” unless it
was based upon jurisdiction, venue, or indispensable parties. Under
California law, it would also NOT be “on the merits” if Case 1 was dismissed
under: ____________________________________________________

__________________________________________________________

3. Definition of claim (or cause of action) for claim preclusion (res judicata).

-- Federal law (majority rule): claim is all rights to relief arising from: ______

__________________________________________________________

-- California law (“primary rights”) – there is a separate cause of action for

each right invaded.___________________________________________

__________________________________________________________

HYPO 1:
Case 1: P sues D for personal injuries sustained in an auto collision. A valid final judgment
on the merits is entered. Case 2: P sues D for property damage from the same crash.
Should the court enter summary judgment for D in Case 2 under the doctrine of claim
preclusion?

1. Were both cases brought by the same claimant against the same defendant? ______

_____________________________________________________________________

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2. Did Case 1 end in valid final judgment on merits? ____________________________

_____________________________________________________________________

3. Did the claimant in both cases assert the same claim or cause of action?

-- Federal law: ______________________________________________________

_____________________________________________________________________

_____________________________________________________________________

_____________________________________________________________________

(So the court would probably enter summary judgment for D.)
-- California law: _____________________________________________________

_____________________________________________________________________

_____________________________________________________________________

_____________________________________________________________________

_____________________________________________________________________

_____________________________________________________________________

_____________________________________________________________________

HYPO 2:
P and D are parties to a contract under which D is required to make monthly payments.
When P files Case 1, D has failed to make six such payments.
Under federal and California law, are there six separate claims here or only one claim or
cause of action? _______________________________________________________

_____________________________________________________________________

*******

FOR THE ESSAY EXAM, WITH LIMITED TIME, WHAT SHOULD I PROBABLY FOCUS ON?

1.

2.

3.

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4.

5.

6.

7.

8.

LAST POINT (I promise): Questions? Call me. Please do NOT email. If I’m not there, leave
your specific question and phone number and I’ll call back.

My phone number is: ____________________________________________

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Comparison of Major Documents and Names

Document Federal Court State Court

P’s initial pleading Complaint Complaint

D’s standard responsive Answer Answer
pleading

D’s claim v. P Counterclaim Counterclaim

Party’s claim v. co-party Cross-Claim Cross-Complaint
D’s claim v. TPD Impleader Cross-Complaint

Time to respond 21 days 30 days

(after effective date of
service of process)

To raise:

-- Failure to state claim Motion to dismiss 12(b)(6) General demurrer

-- Lack of personal Motion to dismiss Motion to quash service of
jurisdiction summons
-- Lack of subject matter Motion to dismiss General demurrer

Major waiver problems Waive personal jurisdiction, Waive special demurrer

venue, process, and issues if not put in answer
service of process if not or demurrer
put in first Rule 12
response (motion or Waive personal jurisdiction
answer) if not raised by special
appearance (motion to
quash service of summons)
before or with demurrer or
answer or motion to strike

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