BarBri CA Civil Procedure Flashcards

Federal Rules of Civil Procedure
Terms Definitions
What is the basic Personal Jurisdiction question?

And How can you establish it?
Main Question: Can P sue D in THIS state.

Must BOTH:
1. Satisfy a statute (state long arm); AND
2. Satisfy the Constitution (Due Process)
What is the Statutory Analysis of In personam jurisdiction?
All have domicile, presence and consent

Some long arm statutes simply say they reach the constitutional limit. Such as **CA**
What is the basic Constitutional Analysis of In personam jurisdiction?
Does the D have 'such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice?'

My Parents Frequently Forgot to Read Children's Stories

Easy Cases (domiciled, presence, consent)
What is the contacts analysis of In personam jurisdiction?
Some tie between D and the forum.

Two Factors to consider:
The contact MUST result from PURPOSEFUL AVAILMENT (D's voluntary act, must reach out or direct activities in some way)
i.e.. ship goods, use road, cause an effect

FORESEEABILITY that D would get sued in this forum
What is the fairness analysis of In personam jurisdiction?
Fair play and Substantial Justice

1. RELATEDNESS: between the contact and the claim, does claim arise from contact

-Substantial ties (domiciled, continuous business, served)- lead to general jurisdiction

2. CONVENIENCE (severe disadvantage in the litigation - Hard to meet this standard)

3. STATE'S INTEREST (provide forum for its citizens)
My Parents Frequently Forget to Read Children's' Stories
M inimum Contacts
P urposeful availment
F oreseeability
F air play & substantial justice
R elatedness of contact and claim
C onvenience
S tate's interest
How do In rem and quasi in jurisdiction work?
HAS NEVER BEEN ON EXAM

Jurisdictional basis is property and Statutory basis is an attachment statute

Constitutional if:
Suit relates to property; OR
Meets Minimum Contacts/Fairness Test
What are the 2 areas of federal Subject Matter Jurisdiction?
2 types of federal cases:

1. Diversity of Citizenship

2. Federal Question
What is Diversity of Citizenship?
The action must be between citizens of different states (or a foreigner)
There is no diversity of citizenship jurisdiction if any plaintiff is a citizen of the same state an any defendant when the case is filed.

The amount in controversy must exceed $75,000
How is Citizenship of Individuals for diversity determined?
Domicile is established by two concurrent factors:
1. Presence instate (physical)
2. Subjective intent to make it her permanent home (mental)

- No single factor determinative for intent

Always have a domicile, CAN'T have more than one
How is Citizenship of Corporations for diversity determined?
1. All states where incorporated
AND
2. the ONE state where the corporation has its principle place of business (PPB)

i. Headquarters(nerve center) DEFAULT TEST
OR
ii. Where the corp. does MOST of production of service activity than anywhere else(muscle test)
How is Citizenship of Unincorporated Associations for diversity determined?
Use the citizenship of all members

Includes general and limited partners

May mean all 50 states
How is Citizenship of Decedents, minors, and incompetents for diversity determined?
Look to their citizenship, not the citizenship of their representative
What and How is the Amount in controversy for diversity determined?
GOOD FAITH allegation that claim EXCEEDS $75,000.
P who recovers less than $75,000 may be liable to D for litigation costs (not att. fees)

AGGREGATION allowed when case is a single P against a single D

EQUITABLE RELIEF: P's viewpoint OR D's viewpoint injunction's value exceeds $75,000

EXCLUSIONS: divorce, alimony, child custody or probate
What is Federal Question jurisdiction?
Claim arises under federal law
- Well-plead complaint: Fed Q based on complaint, NOT anticipated defenses

ASK:'Is P enforcing a federal right?'

- Ask for every claim!!! (If no, diversity? If no, try supplemental jurisdiction)
What is the Supplemental Jurisdiction Test?
Lets a federal court hear ADDITIONAL claims over which there is no diversity of citizenship or FQ jurisdiction

Test: Claim must share a 'common nucleus of operative fact' i.e. 'same transaction or occurrence' (T/O)

Court has discretion where: (Not really tested)
1. FQ dismissed early
2. State law complex
3. State law issues predominate
What Limitations are there to Supplemental Jurisdiction?
In a DIVERSITY case, PLAINTIFF cannot use supplemental jdx to overcome a lack of DIVERSITY

Can use to overcome lack of diversity for a P in a --FQ-- case
Can use to overcome a lack of AMOUNT in controversy for claims by P in a diversity cases
Can use for ANYONE ELSE, but P
What is Removal and what is the test?

And what is major exception?
Allows Defendants (ONLY) to have case filed in state court 'removed' to fed court.
- One way only, remanded back if improper

Test: If P could have originally filed case there
Where: District Court within area of State Court
When: No later than 30 days after SERVICE of the FIRST removable document.
- All D's must agree

Special rules for diversity cases:
1. No removal if any D is a citizen of the forum
2. No removal more than one year after case filed (even if D, a citizen of forum, is dropped)
What is the Procedure for Removal?
1. D files notice of removal in federal courts
2. Stating grounds of removal
3. Signed under Rule 11
4. Attach all documents served on D in state action
5. Copy to all adverse parties
Can you waive your Right to Remove?
A D who files a PERMISSIVE counterclaim in state court probably WAIVES the right to remove

Filing a MANDATORY counterclaim in state court probably DOES NOT WAIVE
Basically, what is the Erie Doctrine?
In diversity cases, federal court must apply state substantive law.
What is Clearly Substantive Law under erie?
1. Elements of claim or defense
2. Statute of limitations
3. Rules for tolling statutes of limitations
4. Choice of law
What do you do if Substantive Law is Not Clear under erie?
Is there a federal law on point that directly conflicts with state law?
If so, apply the federal law as long as it is arguably procedural. (FRCP is valid if is 'arguably procedural')

Analyze the facts per these three tests, and come to a reasonable conclusion
1. Outcome determinative: would applying or ignoring the state rule affect outcome of case?
2. Balance of Interests: does either federal or state system have strong interest in having its rule applied?
3. Avoid Forum Shopping: if the federal court ignores state law on this issue, will it cause parties to flock to federal court?
What is SMJ in **CA** Superior Court?
General Jurisdiction - Can hear just about anything
What are the Classification of Cases in **CA**?
Limited - Does NOT exceed $25,000, not including attorneys fees, interests, or costs.
- Claimant is barred from reward of more than $25K
Unlimited - Exceeds $25,000
Small Claims - $7,500 or less. Separate court, simple procedures

Entire Case is either 1 or the other.
Aggregate all claims by 1P v. 1D
What are the Classification Procedures in **CA**?
Plaintiff initially determines - Must not classification in caption

Reclassification - If circumstances change the court can reclassify:
- Automatically: If P amends complaint in a way that changes classification
- On Motion: A party can move or court can initiate. Notice and hearing for all parties

What does court look to in determining?
Does not try the case, but can look to arbitration awards and settlement conferences
Limited -> Unlimited - If there is a possibility it will exceed $25,000
Unlimited -> Limited - If it is NECESSARILY less than $25K or Virtually Unobtainable
How do you determine Venue - Both Federal and **CA**? (long sorry)
1. Local actions: actions re ownership, possession or injury (including trespass) to land
Federal: the DISTRICT where the land lies
**CA**: the COUNTY where the land lies

2a. Transitory Federal:
(i) ALL D's reside (All D's in different districts of same state, P can lay in any district in which one resides)
(ii) a substantial part of the claim arose

2b. Transitory **CA**:
In a county where ANY defendant resides within case is filed. If none CA residents than ANY county

3. Contract Cases **CA**:
ALSO County where K was entered into or performed

4. Wrongful Death **CA**:
ALSO where the injury occurred
Where do D's reside for venue purposes - Both Fed and **CA**?
Humans: domicile

Corporations: all districts where it is subject to personal jurisdiction when the case is filed

**CA** Corporations: County of where PPB, Entered into K, or Breach occurred or liability arises
How do you do a Transfer of venue, federal only?
Sending a case from one federal district to another.
If improper, can transfer or dismiss

Can only transfer to a district where case could have been filed:
Means (i) a proper venue which (ii) has personal jurisdiction over D (must be true without waiver by the D)

Court discretion to transfer even if proper if convenience and interests of justice:
1. Public factors (what law applies, what community should be jury)
2. Private factors (where are the witnesses, evidence, etc?)

NOTE: Court to which transferred applies choice of law rules from original court.

-- Does not matter if will recover less
-- Almost never granted if P is resident of the present forum
What is Forum Non Conviens?
If there is a far more appropriate court elsewhere, may dismiss without prejudice.
- Transfer MUST be impossible (i.e. foreign country)

Court will balance same Public and private factors as venue.
1. Public factors (what law applies, what community should be jury)
2. Private factors (where are the witnesses, evidence, etc?)

-- Requires a very strong showing because dismissal
-- Does not matter if will recover less
-- Almost never granted if P is resident of the present forum
How do you do a Transfer of venue - **CA** only?
From a Court in one County to a Court in another County.

If the original venue is proper may transfer on motion if:
1. Impartial trial not available in this county;
2. Convenience of witnesses and justice; OR
3. No judge is qualified to act

Transfer to a county in which BOTH parties AGREE. Otherwise court picks
What is the Service of Process Procedure?
Nonparty over the age of 18

In addition to personal jurisdiction, must give notice

Deliver to D

A summons AND A copy of the complaint

Serve within 120 days of filing case or dismissed (unless good cause for delay)
What are the Service of Process Considerations - Fed and **CA**? Forms of service
1)Personal service: Papers given to D personally anywhere in forum state

2)Substituted service: Process if another person at usual abode, suitable age and discretion
-- **CA** Cannot server person with reasonable dilligence. Substitute must be 18, be told of contents, and copy mailed to D.

3)Service on D's agent as long as within scope; corp: registered agent

4)State law: any method permitted by state law
**CA** Allows publication, but not usually allowed

5)Waiver by mail: Process is mailed to D by first class mail, postage prepaid. Ok, if return waiver form in 30 days. Waives only formal service. If no waiver, may be forced to pay cost of service. **CA** 20 days only.

6)Geographic Limitations: Process is delivered to D in another state. OK only if forum state law allows (for example, with a long-arm statute).

7)Immunity from Service: only in State to be witness or party in another civil case. **CA** NO immunity
What are Pleadings - Fed and **CA**?
Documents setting forth claims and defenses.

Federal rules adopt 'notice' pleadings:
- Only required to convey enough of one's contentions to put others on notice and to allow a meaningful response

**CA** used 'fact pleading':
Requires more detail
What is Rule 11?
Requires attorney (or party representing herself, called a pro se party) to sign all pleadings, written motions and papers (except discovery documents, which are treated by another rule)

Certifying that to the best of her knowledge and belief, after reasonable inquiry:
(1) the paper is not for an improper purpose
(2) the legal contentions are warranted by law (or nonfrivolous argument for law change)
(3) that factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation).

Certification effective every time position is 'presented' to the court (e.g., at filing, later advocating a position)Cso it=s a continuing certification.

Sanctions may be levied (they are discretionary) against attorney, firm or party. Only deter (not punish)

Motion for violation is served on other parties but is not immediately filed with court.

Party allegedly violating Rule 11 has 21 days 'safe harbor' to withdraw the document or fix the problem. If she does, no sanctions. If she does not do so, then the motion can be filed.

Court can raise Rule 11 sua spontae (on its own), but no 'safe harbor' then
What is Frivolous Litigation - **CA**?
Two statutes:
1. Is similar to Rule 11. Except 'safe harbor' also applies when court raises the issue.

2. Court can order one party to pay the other party for expenses incurred because of BAD FAITH or FRIVOLOUS TACTICS
(i) This must be in litigation.
(ii) No safe harbor
What is the Complaint federal?
Principal pleading by plaintiff. Filing commences an action.

Requirements:
1) SMJ - statement of subject matter jurisdiction;
2) CLAIM - short and plain statement of the claim, showing entitled to relief;
3) JUDGMENT - demand for judgment. (Even though courts tend to be more forgiving or lenient with pro se litigants, these requirements must be met.)

Special matters that must be pleaded with particularity or specificity:
fraud, mistake, and special damages.

- Special damages do not normally flow from an event.
What is the Complaint **CA**?
Filing commences an action.

Contents:
1. A statement of facts constituting the CAUSE OF ACTION
2. Demand for judgment
3. Generally need to state damages amount, EXCEPT:
. .(i) No need in Personal Injury and Wrongful Death
. .(ii) No need for punitive damages

NOTE: However, even where damages need not be plead, D can request a damages statement which must provide with in 15 days.

- Note no SMJ is needed in **CA**
- Complaint must state if it is limited
- **CA** allows fictitious defendants, Fed does NOT
What are the 2 forms of Defendant's Response to a Complaint?
Rule 12 requires D to respond in one of two ways:
1) by motion or
2) by answer.

Either must be within 20 days after service of process (or else risk default).
What are the Motions in Response to Complaint, Rule 12, Federal?
Motions are not pleadings; they are requests for a court order.

Issues of form:
(1) 12(e) motion for more definite statement -- pleading so vague D cannot frame a response (rare)

(2) 12(f) motion to strike, which is aimed at immaterial things, e.g., demand for jury when no right exists; any party can bring.

Rule 12(b):
1) lack of subject matter jurisdiction - ANYTIME
2) lack of personal jurisdiction - WAIVABLE
3) improper venue - WAIVABLE
4) insufficiency of process - WAIVABLE
5) insufficient service of process - WAIVABLE
6) failure to state a claim;
7) failure to join indispensable party.

These can be raised either by motion or by answer
What is a Demurrer - **CA**?
General Demurrer - Fail to state facts sufficient to constitute a cause of action. Like 12(b)(6)
- Can be asserted in the answer

Special Demurrer: (Unlikely to be tested on)
1) Uncertain, ambiguous or unintelligible. Similar to Rule 12(e)
2) Unclear about which theories of liability apply to whom
3) Lack legal capacity
4) Existence of another case between the same parties on the same COA
5) Defect or Misjoinder of parties
6) Failure to plead whether contract is oral or written
7) Failure to file a certificate
- Can also be raised in answer. But must be raised or waived.
What are the Motions in Response to Complaint - **CA**?
Motion to quash service of summons:
1) Lack of Personal JDX
2) Improper Process
3) Improper Service of Process
- Made during a special appearance. MUST be made before a General Demurrer or Motion to Strike. Or waived

Motion to Dismiss or Stay for Inconvenient Forum:
Forum Non Conveniens
- Same rules as motion to quash

Motion to Strike - Strike all or part of complaint as 'irrelevant, false, or improper matter'

Anti-SLAPP - Motion to Strike
Made when sues D for an act D took in furtherance of her free speech rights.
Shifts burden to P to show probability of winning on merits.
What are the Timing of the Answer - Fed and **CA**?
Serve within 20 days after service of process if D makes no motions;

If D does make a Rule 12 motion, and it is denied, she must serve her answer within 10 days after court rules on motion.

If D waives service, has 60 days from P's mailing of waiver form in which to answer. (Waiver of service does not waive personal jurisdiction or venue.)

**CA**
No later than 30 days after service of process.

No later than 20 days if waive service.

If demurrer or motion denied has 10 days.
What is the Answer - Fed and **CA**?
1. Respond to allegations of complaint:
(i) admit
(ii) deny
(iii) state that you lack sufficient information to admit or deny;
- # iii acts as a denial, but can't be used if the information is public knowledge or is in defendant's control.
- Failure to deny can constitute an admission on any matter except damages.
(iv) **CA** General Denial - Short document denying everything

2. Raise affirmative defenses. - 'even if I did all the terrible things plaintiff says, plaintiff still cannot win.'
- Classic affirmative defenses are statute of limitations, statute of frauds, res judicata, self-defense.
- MUST PLEAD OR WAIVED
What are Counterclaims?
These are offensive claims against an opposing party, e.g., D v. P.

They are filed with defendant's answer.

1. Compulsory: arises from the same T/O as P's claim.
- MUST BE FILED IN THE PENDING CASE, OR IT'S WAIVED.
- The claim cannot be asserted in another action, Res Judicata. (If dismissed, never have to answer, never had to assert)

2. Permissive: does not arise from same T/O as plaintiff's claim.
- Does not have to be asserted in pending case; can sue in separate action.

If a counterclaim is procedurally OK, then assess whether it has subject matter jurisdiction (diversity or FQ).
- If not, can you get supplemental jurisdiction? (compulsory counterclaim always meets test)
What are Cross-claims?
Offensive claims against a co-party.
- Claim must arise from the same T/O as the underlying action.
- NEVER compulsory.

SMJ:
- FQ? Diversity? Supplemental?
- Not considered P for purpose of supplemental limitation
Can you Amend the pleadings, Federal?
PLAINTIFF has a right to amend once before responsive pleading or within 20 days of service of pleading.
- If a claimant amends, D must respond within 10 days or remaining 20 days, whichever is longer

DEFENDANT has a right to amend once within 20 days of serving his answer.

If there's no right to amend, seek leave of court; it will be granted if 'justice so requires.'
- Courts usually allow unless there's delay or prejudice.

Variance: evidence at trial does not match what was plead (can move to amend the complaint to conform to the evidence)
What are the requirmetns to Amend after the statute of limitations has run - FED and **CA**?
New Claim: amended pleading relate back if they concern the same conduct, transaction or occurrence as the original pleading.
- Relation back treats the amended pleadings as though it was filed when the original was filed, so it can avoid a statute of limitations problem.

To change a D after the statue has run. This will relate back if:
1. It concerns the same conduct, transaction or occurrence as the original;
2. The new party knew of the action, within 120 days of its filing; AND
3. She also knew that but for a mistake, she would have been named originally

(Applies when P sued wrong D first, but the right D knew about it)

Also SEE Amending Pleadings CA for Discussion of Fictitious Ds.
What is a Cross-Complaints - **CA**?
ALL claims by defendant are called CROSS COMPLAINTS in CA

Cross-Complaint Against P: Same as Counter claim in Fed. Same Rules RE compulsory too.

Cross-Complaint Against Co-party: Same as Cross-Claim in fed.

Cross-Complaint against Third Party Defendant - Same as Impleader
How can you Amend the Pleadings - **CA**?
PLAINTIFF has a right to amend anytime before D files an answer or demurrer.

If no right to amend, seek leave of court; it is usually granted unless 'Delay or Prejudice'

Variance: Same as FED

Relation back and Fictitious Defendants, OK if:
1. Original was before SoL and contained allegations against fictitious D
2. P was genuinely ignorant of the identity of Does
3. P pleaded that ignorance in original case.
-- Must substitute within 3 years of filing
What is the process to Joinder of Normal Parties?
1. Proper D and P's (who may be joined)
- Arise from same T/O AND
- Raise at least one common question
- Then assess subject matter jurisdiction

Joinder rules that start with 'C' (counterclaim, crossclaim) are claims between present parties

Claims that start with 'I' involve someone new to the case
When are Parties are necessary?

How are they joined?
Necessary party if: (ANY)
1. INCOMPLETE - Without A, the court cannot accord complete relief;
2. HARMED - A's interest may be harmed if not joined (practical harm) (MOST LIKELY); OR
3. MULTIPLE - A claims an interest which subjects a party (usually D) to multiple obligations

- Joint tortfeasors are not necessary

Can be joined if:
1. There is personal jurisdiction
2. Joining him will not make it impossible to maintain diversity

If party cannot be joined then:
1. Proceed without him
2. Dismiss the whole case(because indispensable party)

Factors:
(i) Is there an alternative forum available?
(ii) what is the actual likelihood of prejudice?
(iii) can court shape relief to avoid that prejudice?
What is Impleader?

And who can sue whom in that situation?
A defendant party wants to add new third party defendant. The TPD may owe indemnity or contribution to the defending party on the underlying claim

Right to implead within 10 days after serving answer, after that, need court permission

After TPD join, P can assert claim against TPD and TPD can assert claim against P if the claim arises from the same T/O as the underlying case
- SMJ FQ, diversity and supplemental analysis apply.
- P may not have SMJ over TPD even though TPD may assert claim against P.
- Supplemental Limitation does not apply to TPD
What is Intervention?
Absentee WANTS to join a suit:

Intervention as a right: A's interest may be harmed if she is not joined and not represented currently

Permissive Intervention: A's claim of defense has at leave one common Q. Discretion with court, avoid 'Delay or Prejudice'

No supplemental JDX over intervenor's claim, if it lacks Diversity.
What are the Class Action Initial Requirements, Federal? Relating to representation?
Must satisfy all of these
1. Numerosity: too many class members for practicable joinder
2. Commonality: there are some questions of law or fact in common to class
3. Typicality: representative's claims/defenses typical of those of the class
4. Adequate representation: the class representative will fairly and adequately represent class
What are the Three types of Class Actions? Subject Matter.
1. Prejudice: class treatment necessary to avoid harm either to the class members or to the party opposing the class (individual suits depleting a fund)
2. Injunction or declaratory judgment (not damages) sought because class was treated alike by other party (employment discrimination)
3. Damages
. i. Common questions predominate over individual questions AND
. ii. Class action is the superior method to handle the dispute
. . . - i.e. Mass Tort, Bus Accident

Notice paid for by class representative.

No clear method regarding aggregating claims
What are**CA** Class Action Requirements? Representative
1) Must show an ascertainable class; AND
2) A well defined community of interest
. a) Common Questions predominate;
. b) The representative is adequate; AND
. c) The class will result in a benefit to the parties and the court

Court decides who bears the cost of notice

Agregate all class members damages to determine amount in controversy
What are the Required Disclosures in discovery? Must be made no matter what.
Must be made even if no one asks for them:

1. Initial disclosures. Must identify persons and documents likely to have discoverable information that the disclosing party may use to support its claims or defenses, computation of damages and insurance for any of judgment.
2. Experts. As directed by court, must identify experts 'who may be used at trial' and produce written report containing opinions, data used, qualifications, compensation for study, etc.
3. Pretrial. No later than 30 days before trial, must give detailed information about trial evidence, including documents and identity of witnesses to testify live or by deposition.
What are the Discovery Tools?
1. Depositions
2. Interrogatories
3. Requests to Produce
4. Physical or mental examinations
5. Requests for admission
What are the Depositions procedures?
Form: Questions can be oral or written.

Who: Parties or Nonparty w/ subpoena. Subpoena could be 'duces tecum' which requires the deponent to bring material (e.g., documents) with her.
What are the Interrogatories procedures and **CA** distinctions?
Questions propounded in WRITING to another party, to be answered in writing under oath.

Time Frame: Must respond with answers or objections within 30 days.

Unable to Respond: Can say you don't know the answer, but only after reasonable investigation; if the answer could be found in business records and it would be burdensome to find it, can allow propounded access to those records.

Use at trial: cannot use your own answers; others may be used per regular rules of evidence.

Limits: Cannot serve more than 25 (including subparts) without court order or stipulation.
- **CA** No limit on FORM interrogatories
- **CA** No more than 35 of drafted interrogatories
What are the Requests to produce procedures and **CA** distinctions?
Description: Requests to another party (or to non-party if accompanied by subpoena) requesting that she make available for review and copying various documents or things, or permit entry upon designated property for inspection, measuring, etc.
- **CA** cannot use on nonparty. But can subpoena to deposition with 'duces tecum'

Timeframe: Must respond within 30 days of service, stating that the material will be produced or stating objection
When is a Physical or mental examination allowed?
Only available through court order.
What is a Request for admission?
A request by one party to another party to admit the truth of any discoverable matters.

Use: Often to authenticate documents

Timeframe: Must respond within 30 days of service. The response is to admit or deny; can indicate lack of information only if indicate you've made a reasonable inquiry.

NOTE: Failure to deny tantamount to admission; can amend if failure not in bad faith
What are Parties duties in responding to discovery?
Certified: Every discovery request and response is signed by counsel certifying it is warranted, not interposed for improper purpose and not unduly burdensome. Not Rule 11, this is a separate certification.

Supplement: If a party learns that its response to required disclosure, interrogatory, request for production or request for admission is incomplete or incorrect, it must supplement its response.
- **CA** there is no duty to supplement discovery. But opposing party can propound supplemental interrogatories twice before date of trial is set.
What is allowed for **CA** Discovery in LIMITED cases?
Depositions: 1 ONLY

Interrogatories, inspection demands, and requests for admission: Combined total of 35.

Additional Discovery: Only with a court order
What is the Substantive scope of discovery Fed and **CA**?
1. Standard. Can discover anything 'relevant to a claim or defense.'
- Relevant mean'reasonably calculated to lead to the discovery of admissible evidence (this is broader than admissible)'
- For good cause, the court can expand discovery to 'relevant to the subject matter of the case.'
- **CA** always at the broader 'relevant to subject matter' standard

2. Privileged matter not discoverable
- **CA** Privilege must be identified with particularity

3. Work product or 'trial preparation materials' Generally protected from discovery. SEE Work Product Card
4. Expert witnesses:
- Must produce information about experts who may be used at trial without request from party.
- Party may take deposition of any expert 'whose opinions may be presented at trial.'
- **CA** Party may request simultaneous exchange of expert information
What is Work Product Fed and **CA**?

And when is it discoverable?
Work product of lawyers and OTHERS in anticipation of litigation is discoverable only if:
1) upon showing substantial need; AND
2) avoid undue hardship

**CA** Only work product produce BY ATTORNEY is protected.

Absolute protection to:
1) mental impressions
2) opinions
3) conclusions
4) Legal Theories
How Party seeks enforcement of discovery rules?
1. Receiving party seeks protective order (26(c), e.g., overburdensome, or involves trade secrets and we want an order limiting use to the litigation);
2. Partial Violation: Receiving party answers some and objects to others expect a LIGHT sanction.
3. Total Violation: Receiving party fails completely to attend deposition, respond to interrogatories or to respond to requests for production expect a HEAVY sanction.
What are Sanctions against a Party for failure to comply with discovery, Fed and **CA**?
To get sanctions:
1) Must certify to the court that he tried in good faith to get the info without court involvement
2) Types of Violations:
. .a) Partial Violation: Compel party to answer the questions, plus costs of bringing motion (including attorney's fees).
. . . .(i) If violates this than RAMBO plus costs and possible Contempt
. .b) Total Violation: RAMBO Plus costs;

RAMBO SANCTIONS (choices available to judge):
i. Establishment order (establishes facts as true)
ii. Strike pleadings of the disobedient party (as to issues re the discovery)
iii. Disallow evidence from the disobedient party (as to issues re the discovery)
iv. Dismiss plaintiff's case (if bad faith shown)
v. Enter default judgment against defendant (if bad faith shown)

**CA**
Sanctions are basically the same but not as harsh. Court will generally move through each level to encourage party to comply.
What are the Pretrial Adjudication (List of Options)?
1. Voluntary Dismissal
**CA** Involuntary Dismissal
2. Default and Default Judgment
3. Failure to State a Claim
4. Summary Judgment
What is a Voluntary Dismissal?
Plaintiff files a written notice of dismissal.

Dismissed w/out prejudice unless second case
What is a Involuntary Dismissal Fed and **CA**?
All courts have authority to dismiss for various reason, such as not following procedure.

**CA**
Mandatory Dismissal
1) Not brought to trial within 5 years of filing
2) Process is not served within 3 years after filing.
What is a Default?
Default is a notation made by the court clerk on the docket sheet for the case.

In order to recover plaintiff needs a judgment. The clerk of the court can enter judgment if:
1. there has been no response at all by the defendant;
2. the claim itself is for a sum certain;
3. claimant gives an affidavit that that is owed; AND
4. defendant is not a minor or incompetent.

If any of those four things is not true, the claimant must go to the court itself (not the clerk) to get the judgment.

1. A default judgment cannot exceed what the claimant demanded in her complaint
2. After default, D can move to set aside the default, usually by showing good cause and a viable defense. Good cause usually means excusable neglect.
3. After default judgment, D can move to set aside the judgment. Same basic showing as to set aside the default.
What is a Failure to State a Claim both Fed and **CA**?
Under Rule 12(b)(6) D can move to dismiss for failure to state a claim.
- It tests only the sufficiency of P's allegations.

Standard: The court assumes all allegations are true and asks this: if P proved all she has alleged, would she win a judgment?

If after pleadings are closed: motion on the pleadings

**CA**
General Demurrer - See Demurrer card.
What is a Summary Judgment?
Moving party must show:
1) there's no genuine dispute as to material issue of fact; AND
2) that he is entitled to judgment as a matter of law.

Court generally views the evidence in the light most favorable to the nonmoving party.

The motion can be for 'partial' summary judgment, e.g., as to one of several claims.

**CA**
Burden shifting, if D shows that Ps claim lacks merit, burden moves to P to demonstrate (produce evidence) that a triable issue of fact exists.
Procedure:
1) Moving party submits a statement listing each material fact that she claims is undisputed with evidence.
2) Nonmoving party may respond to each claim
What are Affidavits?
Are sworn statements, under penalty of perjury, so they can be evidence

Pleadings are not evidence, unless a verified pleading
What are Conferences and Meetings?
1. Rule 26(f) Conference
2. Scheduling Order
3. Pretrial Conference
What is a Rule 26(f) Conference?
Unless court order says otherwise, at least 21 days before scheduling conference (or scheduling order is due), parties discuss claims, defenses and settlement. Must form discovery plan and present it to court in writing within 14 days.
What is a Scheduling Order?
Unless local rule or court order says otherwise, the court enters an order scheduling cut-offs for joinder, amendment, motions, etc.
What are Pretrial Conferences?
Final pretrial conference determines issues to be tried and evidence to be proffered.

The final pretrial conference order is an important document -- it is a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc. So there are NO surprises at trial.
What rights exist to a Jury Trial?
FEDERAL
Right: Seventh Amendment right to jury in 'civil actions at law' but not in suits at equity. If both, usually the court will try the jury issues first.
Demand: Must demand in writing no later than 10 days after service of the last pleading raising jury triable issue.
Voir Dire: Each SIDE has unlimited strikes for cause (e.g., bias, prejudice, related to a party). Each side also gets THREE 'peremptory' strikes. race and gender neutral way.
Alternate Jurors: NO
UNANIMOUS

**CA**
Right: Largely the same as federal courts. HOWEVER: Equity cases are tried first,
EQUITABLE CLEAN UP DOCTRINE if majority if case is equity then may not get a jury
Demand: 5 days after notice of trial date
Voir Dire: Each PARTY is entitled to SIX peremptory strikes.
Alternate Jurors: Yes
VERDICT 9/12
What is a Motion for judgment as a matter of law - Fed and **CA**?
**CA** Called Directed verdict
- Prevent Jury from ruling on case

Standard: Reasonable people could not disagree on the result.
- Evidence viewed in light most favorable to motion's opponent
What is a Renewed motion for judgment as a matter of law (judgment notwithstanding the verdict (JNOV)?
**CA** called judgment not withstanding the verdict

Standard: same as with motion for judgment as a matter of law.

REQUIREMENT: Must move for a judgment as a Matter of Law before jury deliberates.
What is a Motion for a new trial?
Make motion after verdict:

Grounds:
(i) prejudicial (not harmless) error at trial makes judgment unfair (e.g., wrong jury instruction; evidentiary ruling);
(ii) new evidence that could not have been obtained with due diligence for the original trial;
(iii) prejudicial misconduct of party or attorney or third party or juror (e.g., juror conducted independent investigation of accident);
(iv) judgment is against the weight of the evidence (serious error of judgment by jury).

Note: grant of new trial is less radical than grant of renewed motion for judgment as a matter of law, because it means the court will simply start over and decide who should win.
What are Remittitur and Additur **CA**?
Court Can offer a New trial or a:

1) If P won but too much, Remittitur - offer less, take it or forced to go through another trial
2) If P won but too little, Additur - Offer P more, D can pay it or be forced to go to a new trial
What are the Final Judgment Rules both Fed and **CA**?
As a general rule, can appeal only from final judgments, which means an ultimate decision by the trial court of the merits of the entire case.

File notice of appeal in trial court within 30 days after entry of final judgment. **CA** 60 Days

Ask: after making this order does the trial court have anything left to do on the merits of the case? If so, probably not appealable
When is Interlocutory (non-final) review available?
These might be appealed even though not final judgments. (Little Tested)

1. Interlocutory orders reviewable as of right: orders granting, modifying, refusing, etc. injunctions; appointing, refusing to appoint receivers; findings of patent infringement where only an accounting is left to be accomplished by trial court; orders affecting possession of property, e.g., attachments.

2. Interlocutory Appeals Act. Allows appeal of nonfinal order if trial judge certifies that it involves a controlling issue of law as to which there is substantial ground for difference of opinion and the court of appeals agrees to hear it.

3. Collateral order exception. Appellate court has discretion to hear ruling on an issue if it (a) is distinct from the merits of the case, (b) involves an important legal question, and (c) is essentially unreviewable if parties must await a final judgment (e.g., claim of immunity from suit, such as a state=s claim of Eleventh Amendment immunity from suit for damages).

4. When more than one claim is presented in a case (e.g., claim and counterclaim), or when there are multiple parties, the trial court may expressly direct entry of a final judgment as to one or more of them if it makes an express finding that there is no just reason for delay.

5. Extraordinary writ. Not technically an appeal, but an original proceeding in appellate court to compel the trial judge to make or vacate a particular order. Not a substitute for appeal; available only to enforce a clear legal duty.

6. Class action. Court of appeals has discretion to review order granting or denying certification of class action. Must seek review within 10 days of order. Appeal does not stay proceedings at trial court unless trial judge or court of appeals so orders.
Which court systems laws apply regarding Claim and Issue Preclusion?

Is a case on appeal entitled to claim or issue preclusion effect?
Case 1 determines the rules.

Federal cases on appeal still can be used for issue or claim preclusion. **CA** No must be final final.
What is Res Judicata?
You only get to sue on a cause of action (or claim) once. So if you have a claim you only get one case in which to vindicate all rights to relief for that claim.

PFC:
1. Same PARTIES
2. Case 1 ended in a valid FINAL judgment on the merits.
3. Same CLAIM

- Feds define claim transactionally: a claim is any right to relief arising from a transaction or occurrence.

**CA** there are separate claims for property damage and for personal injuries, though, because those are different PRIMARY RIGHTS.
What is Collateral Estoppel?
This precludes relitigation of a particular issue litigated and determined before. Requirements:

FLEAM:
1. Case 1 ended in a valid, FINAL judgment on the merits.
2. The same issue was actually LITIGATED and determined in Case 1.
3. The issue was ESSENTIAL to the judgment in Case 1.
4. Asserted AGAINST one who was a party to Case 1.
5. MUTUALITY, See Mutuality Card.
By whom can collateral estoppel be asserted?
Traditional view (mutuality): only by one who was a party to Case 1.
- Not a requirement of due process, SOME COURTS HAVE REJECTED IT

'NONMUTUAL' :
Its being used by one who was not a party in Case 1. That person may be the defendant or the plaintiff in Case 2.
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Term:
Definition:
Definition:

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