California Bar Exam Lecture Notes - CA Civ Pro

8/12/2019 California Bar Exam Lecture Notes - CA Civ Pro

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I. JURISDICTION OF CALIFORNIA COURTS

A. Subject Matter Jurisdiction(OL I.B)

1. Classification of Cases

a. The basic rule in California is:

Most parties will get to stay in California in the state court syste

(1) Cases are sorte! into:

(a) sall clais(b) liite!

(c) unliite!

b. Small Claims Division

(1) Jurisdiction Based on Amount of Demand

(a) In General

1) The sall clais court has "uris!iction o#er:

$ounts !ean!e! by the plaintiff that !oes not e%cee! &'

) This liit is change! to:

&*' for natural persons

(b) Annual Limitation1) +o person ay file ore than two sall class actions in which the aount !ean!e! e%cee!s &'

anywhere in the state in any calen!ar court

c. Limited and Unlimited Civil Cases

(1) $ consoli!ation of the trial courts in 1,,- cause! unicipal court "uris!iction to be replace! with liite! ci#il

cases in the superior courts. Liite! ci#il cases ay be brought in the sall clais !i#ision !espite ha#ing a

higher !ean! if the sall clais court has.

() Limited Civil Cases

(a) Amount in Controversy

1) Clais liite! up to &'

(/) Differences Beteen Limited and Unlimited Civil Cases

(a) In unliite! ci#il cases:

1) 0u!gent in e%cess of &'

) !isco#ery has few liits

/) Court can awar! !ifferent in!s of relief beyon! oney !aages

(b) In liite! ci#il cases:

1) Liite! reco#ery: +o power to enter an awar! abo#e &'

) 2isco#ery is liite! to one !eposition per party. /' total interrogations !ean!s an! a!issions .

/) Liite! relief 3 no in"unctions no faily or!er enforceent no !eclaratory relief

(c) The a!#antages of a liite! ci#il case are:

1) Cheaper

) 4aster

(5) !eclassification

(a) It is uch easier:

to go up fro liite! to unliite!

(b) $ atter ay be reclassifie! upwar! as an unliite! ci#il action when:

6 only has to pro#e reasonable possibility that aount ay e%cee! &'

(c) $ atter ay be reclassifie! !ownwar! as a liite! ci#il action when:

1) The 2 ust pro#e that #er!ict will be necessarily below &'. 7er!ict o#er &' is #irtually

unobtainable.

CALIFORNIA

CIV PRO


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(') A""re"ation of Claims

(a) If a single plaintiff sues a single !efen!ant on separate causes of action an! the causes of actions are

"oine! properly:

the aggregate #alue of all clais or !ean!s !eterines "uris!iction

(b) If there is ore than one plaintiff an! each plaintiff8s in!i#i!ual clai against a single !efen!ant is

&' or less but the "oint clais are ore than &':

the clais can be aggregate! to 9ualify as an unliite! ci#il case

(c) If a single plaintiff sues a single !efen!ant for ore than &' an! another !efen!ant for &' or

less:

the case 9ualifies as an unliite! ci#il case. Motion to #ransfer

a. Lac$ of Subject Matter Jurisdiction

(1) If an action is coence! in a court that lacs sub"ect atter "uris!iction:

they transfer the case instea! of !isissing it outright.

;$M6L%

A cor&oration brin"s a claim for '()*** in small claims court. #+e small claims ca& for cor&orations is

',)***. !at+er t+an dismissin" t+e action) t+e case ill be transferred to su&erior court.

B. -ersonal Jurisdiction(OL I.C)

1. 6ersonal "uris!iction refers to a court8s authority o#er a particular person (nown as in personamjurisdiction) or piece

of property (nown as in remjurisdictionor quasi in remjurisdiction !epen!ing on the nature of the procee!ing).a. In PersonamJurisdiction

(1) The tra!itional etho!s of e%ercising in personam"uris!iction in California are:

(a) 2oicile

1) 2efen!ants ay be autoatically sub"ect to in personam"uris!iction by reason of:

(b) 6ersonal


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o#er cases relate! to those contacts

b) The re9uireents to establish specific "uris!iction are:

i) purposely a#aile!

ii) substantial ne%us between acti#ity an! plaintiff8s cause of action

iii) tra!itional notions of fair play an! substantial "ustice

On a bar e%a 9uestion !o not liit an analysis to only one in! of personal "uris!iction. 2escribe both a

general an! specific "uris!iction analysis. Co#er both the nuber of contacts an! the type of contacts the

!efen!ant has ha! with California an! !iscuss the !ifference in establishing either general or specific

"uris!iction.

') Internet Cases

a) In general for personal "uris!iction to e%ist o#er a !efen!ant that sells pro!ucts or !eli#ers

ser#ices #ia the Internet:

the !efen!ant ust ha#e intentionally con!ucte! business within California

b) 6assi#e websites where a !efen!ant siply posts inforation on a website which is accessible

to users in ultiple "uris!ictions generally !o not confer "uris!iction without ore !irect acti#ity in

California.

;$M6L%

$n!y hosts a website inforing rea!ers about upcoing concerts along the west coast. $

California ticet broer woul! be unable to sue $n!y in a California court base! solely on the

inforation poste! on $n!y8s website.

b. In RemJurisdiction

(1) In rem"uris!iction affor!s a California court:

personal "uris!iction o#er property locate! in California. Trial can be hel! in the county where theproperty is locate!

;$M6L%

#+e San /rancisco Su&erior Court ould +ave in remjurisdiction over an action involvin" a dis&ute

re"ardin" t+e oners+i& of a manufacturin" facility located in San /rancisco) re"ardless of +ere t+e

oner of t+e &ro&erty resided.

() In rem"uris!iction results in no personal liability or obligation upon any person but rather affects the interestsof all persons in the property.

c. Quasi in RemJurisdiction

(1) $ttachent of real or personal property by the court

;$M6L%

At t+e commencement of a lasuit in su&erior court) a ban$ attac+es a lien to California &ro&erty

oned by a 0evada resident. #+e ban$ &lans to use t+e &ro&erty to satisfy t+e defendant1s debt if it

ins t+e lasuit.

() Quasi in rem"uris!iction does not establis+ &ersonal jurisdiction o#er the owner of the property. 6ersonal

"uris!iction ust be obtaine! separately to procee!.

(a) If person coes to !efen! an interest in the property on the erits the person woul! be sub"ect to

personal "uris!iction #ia consent.

C. Lac$ of Jurisdiction(OL I.2)

1. -rocedures for !aisin" Jurisdictional Defects

a. Challenges to "uris!iction ay be a!e by:

(1) a !eurrer to sub"ect>atter "uris!iction (e9ui#alent to ?ule 1(b) otion to !isiss)

(a) +ote that a !efen!ant will be sub"ect to personal "uris!iction if he challenges personal "uris!iction #ia

!eurrer.

() otions to 9uash for lac of personal "uris!iction

. A&&earances

a. $ !efen!ant wishing to contest "uris!iction ust ne#ertheless appear before the court to file a protest:

;$MTI6


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special appearance to contest lac of personal "uris!iction

b. Con#ersely a !efen!ant who files an answer contesting the plaintiff8s allegations:

general appearance confers "uris!iction

II. VENUE AND FORUM NON CONVENIENS

A. In General(OL II.$)

1. Im&ro&er Joinder

a. $ plaintiff ay not obtain #enue in a particular court:

by "oining a !efen!ant who is not a proper party to the action

. #y&es of Actions

a. Local actions are:

actions that in#ol#e real property or counity property. 7enue lies where property is locate!

b. #ransitory actions are:

actions that coul! occur in any location. 7enue is usually proper where !efen!ant is locate!

c. Mi2ed Actions

(1) Mi%e! actions in#ol#e:

both local an! transitory actions. Courts loo at the ain relief sought to !eterine #enue.

B. 3t+er Matters(OL II.B)1. In certain instances #enue !epen!s on the nature of the action.

. -ersonal Injury or 4ron"ful Deat+

a. If an action is for in"ury to person or personal property or for wrongful !eath fro wrongful act or negligence #enue

is proper in the superior court in either:

(1) where the in"ury or !eath occurre!

() where the !efen!ants or soe of the resi!e at coenceent of the action

/. 5nforcement of C+ild Su&&ort

a. 7enue is where the chil! resi!es

5. Actions on Contract

a. In General(1) If a !efen!ant has contracte! to perfor an obligation in a particular county an action brought on that contract

ay be file! in the county:

(a) where the obligation is to be perfore!

(b) where the contract in fact was entere! into

(c) where the !efen!ant or any !efen!ant resi!es at the coenceent of action

C. #ransfer of 6enue(OL II.C)

1. Motion to #ransfer

a. The court ay on otion change the place of trial in the following cases:

(1) +ot in the proper court

() Cannot get proper trial(/) Con#enience of witnesses an! en!s of "ustice woul! be et by a change of #enue

D. Forum Non Conveniens(OL II.2)

1. @n!er the !octrine a court ay !isiss an action if:

the action shoul! be hear! in a foru outsi!e California

;$M6L%

$ Te%as corporation sues a California resi!ent for breach of contract. The contract was for the perforance of

construction ser#ices in Te%as. $ll potential witnesses li#e in Te%as. #en though a California court has "uris!iction

o#er the California resi!ent it coul! !isiss the case base! on an arguent of forum non conveniens.

. The test for forum non conveniensis:


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con#enience an! fairness in litigating the case soewhere else

/. In granting this otion California courts ay:

stay the action but can !isiss it

5. $s a prere9uisite to !isissal the court ust conclu!e that:

a. suitable alternati#e foru

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$ California court will not !isiss an action base! on forum non conveniens where the statute of liitations has

e%pire! in another foru.

b. public an! pri#ate factors ust fa#or putting off the case

(1) -ublic factorsinclu!e court congestion obligations on unrelate! "urors aount of local interest an! court

failiarity with the law.

() -rivate factorsinclu!e ease of access to proof a#ailability of witnesses an! !istance fro the property at

issue.

A6OTATIC$L

$!a an! Betty were arrie! in


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Jurisdiction can e estalished y domicile! personal service and consent. It can also e estalished y minimum contacts!

which can e general or specific. Tom has een supervising a "alifornia employee ut nothing suggests he has een in

"alifornia so he may not have enough minimum contacts in "alifornia to estalish general or specific jurisdiction either. In

Tom#s case! it appears that assertion of personal jurisdiction was not proper.

The court may estalish specific jurisdiction over Danco! asent general jurisdiction. Danco does not appear to have

continuous and systematic contacts throughout "alifornia y just hiring an employee. $owever! Danco has purposefully

availed himself to "alifornia y hiring and firing a "alifornia employee! and there is a close nexus etween the wrongful

termination action and the defendant#s activity in "alifornia. %o we may have enough to estalish specific jurisdiction through

minimum contacts for Danco.

A defendant can challenge personal jurisdiction y special appearance. A special appearance for motion to quash will notresult in consent to estalish personal jurisdiction.

BAR EXAM APPLICATION

Duestion

$pplicants ay be ase! to analyEe issues arising fro facts siilar to the following:

6eter a California citiEen file! an action in Los $ngeles coplaints.

. Liberal Construction

a. California has fact plea!ing

/. /act -leadin"


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a. 4act (or co!e) plea!ing re9uires:

fact or facts supporting each eleent of the cause of action

B. Com&laints) Counterclaims) and CrossCom&laints(OL III.B)

1. Com&laints

a. Contents

(1) $ coplaint or cross>coplaint ust contain:

(a) facts

(b) !ean! for "u!gent

b. Dama"es

(1) In General

(a) Coplaints that !ean! the reco#ery of oney !aages ust state the aount !ean!e! e%cept:

actions to reco#er actual or puniti#e !aages for personal in"ury or wrongful !eath

() -ersonal Injury or 4ron"ful Deat+

(a) Instea! !aages are 9uantifie!:

in a separate stateent of !aages

. Counterclaims and CrossCom&laints

a. In General

(1) The ters GcounterclaiH an! Gcross>claiH are no longer use! in California.

() $ !efen!ant ay file:a cross>coplaint

b. 4+en Com&ulsory

(1) 4ailure to allege a copulsory cross>coplaint will result:

in preclusion fro subse9uently asserting the relate! cause of action in another lawsuit

() enerally a !efen!ant ust allege in a cross>coplaint-

in any related cause of action he has against a plaintiff at the time of serving an answer

(/) This issue ost often arises:

$ plaintiff sues two !efen!ants for a car acci!ent. If 2efen!ants sue the plaintiff that is a cross>coplaint. If they fail to !o so the clai is lost

c. 4+en -ermissible(1) $ cross>coplaint is perissible when:

!efen!ant wants to bring a coplaint against soeone who is not alrea!y a party to the action

C. Service of -rocess(OL III.C)

1. #imin"

a. The suons ust be a!e within J !ays

(1) 52ce&tion%

juvenile court) &robate court) small claims court) com&le2 liti"ation

. By 4+om Made

a. $ suons ay be ser#e! by any person:

o#er 1- who is not a party/. Manner of Service

a. -ersonal Delivery

(1) 6ersonal !eli#ery is re9uire! of the suons an! coplaint

() Substituted Service

(a) If a !efen!ant cannot be personally ser#e! the plaintiff ay:

lea#e a copy of the suons an! coplaint at the !welling or place of business an! ail a copy first>

class

(b) Liitations on this rule:

lea#e the copy with an a!ult who is infore! of the contents


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b. Service on Cor&orations

(1) $ suons an! coplaint ay be ser#e! on a corporation by !eli#ering a copy:

(a) to the agent for ser#ice of process

(b) to the presi!ent #ice>presi!ent secretary or other corporate officer

() Substituted Service

(a) In lieu of personal !eli#ery a suons an! coplaint ay be ser#e! by lea#ing a copy at the copany8s

office:

!uring usual office hours or at the usual ailing a!!ress an! by thereafter ailing copy of the suons

an! coplaint by first class ail postage prepai!

c. Service by Mail

(1) $ suons ay be ser#e! by ail but such ser#ice is only effecti#e:

when the !efen!ant acnowle!ges receipt

!. Service 3utside State

(1) $ suons an! coplaint ay be ser#e! on a person outsi!e California:

by any anner pro#i!e! for in>state ser#ice or by sen!ing copy of the suons an! coplaint tothe persons ser#e! by first>class ail with two copies of the notice postage prepai! re9uiringreturn receipt

e. Service by -ublication

(1) $ suons ay be ser#e! by publication if it appears to the satisfaction of the court in which the action is

pen!ing:

upon affi!a#it of the ser#ing party that the party to be ser#e! cannot with reasonable !iligence beser#e! in a better anner

()


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1) eneral !enial is iperissible an! specific paragraph references are re9uire! where:

if the coplaint is #erifie! by the plaintiff signe! un!er oath

. Default

a. +o answer within / !ays eans plaintiff can see a !efault "u!gent fro the court.

b. 4+en Granted

(1) The court cler ust first enter the !efault of the !efen!ant ser#e! in the action (by eans other than

publication).

() Once the !efault is entere!:

the plaintiff ay see !efault "u!gent

(/) 6rior to entry of the !efault "u!gent a separate pro#e>up hearing ust be hel! to establish the aount of

!aages on !efault using:

coplaint stateent of !aages or any other e#i!ence they ha#e

c. 5ffect

(1) ntry of !efault terinates:

the !efen!ant8s opportunity to !efen!

!. Settin" Aside Default Jud"ment

(1) ?elief is usually a#ailable upon a showing of:

(a) istae

(b) ina!#ertence

(c) e%cusable neglect

(!) surprise 3 lac of actual notice

5. Met+ods of C+allen"in" -leadin"s% Demurrers) Ansers) and Motions to Stri$e(OL III.4)

1. 3bjection by Demurrer or by Anser

a. General Demurrers

(1) California practice perits a general !eurrer:

This ust be file! within / !ays instea! of an answer or with an answer. It is a otion for failure tostate a clai upon which relief can be grante!.

b. 3bjections to Com&laints

(1) The party against who a coplaint or cross>coplaint has been file! ay ob"ect to the plea!ing by !eurre

or by answer on any one or ore of the following groun!s:(a) lac of sub"ect atter "uris!iction

(b) lac of capacity to sue

(c) failure to state a clai

(!) !efect or is"oin!er of parties

(e) plea!ing is uncertain

c. Amendments

(1) The court will usually allow plaintiff to fi% the coplaint

. Motions to Stri$e

a. On a otion to strie or at any tie in its !iscretion the court ay:

(1) strie out irrele#ant false or iproper atter

() strie out all or any part of plea!ing not properly !rawn or file!

(a) The ost coon e%aple of this is:

puniti#e !aages

b. AntiSLA-- Motions

(1) In General

(a) $nti>


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(b) The in! of lawsuit taes ai at is:

en! fri#olous lawsuits when the !efen!ant is being slappe! for their speech

(c) The lawsuit will be !isisse! unless:

plaintiff pro#es they can succee! on the erits

;$M6L%

$ city councilperson says soe things about a local business owner. The city councilperson urges a #ote

that this business owner opposes. The coents are true but are not entirely coplete an! ae the

local business owner loo really ba!. The business owner sues the councilperson for an en!less strea

of torts. 6articular things to note that ae this i!entifiable as ripe for an anti>bac !octrine as articulate! by the California courts re9uires that the

aen!e! coplaint:(1) sae general facts set forth in the original coplaint

() in#ol#e the sae acci!ent an! sae in"uries i!entifie! in the original coplaint an!

(/) refer to the sae offen!ing instruentality !escribe! in original coplaint

G. Statutes of Limitations(OL III.A)

1. Accrual

a. Car Accident or Injury

(1) The cause of action accrues:

trigger is the e#ent

b. Delayed Discovery !ule

(1) @n!er California8s !elaye! !isco#ery rule the statute of liitations begins to run:when the plaintiff !isco#ers or has reason to !isco#er the cause of action.

(a) This occurs when the plaintiff at least suspects or has reason to suspect a factual basis for the cause of

action as to any !efen!ant.

A6OTATIC$L

!!ie sues Ti for breach of contract within the appropriate liitations perio!. $fter the liitations perio! has e%pire!

!!ie aen!s his coplaint to inclu!e a!!itional clais for !efaation. =ill the !efaation clai be barre! by the

statute of liitations


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In fe!eral court !!ie only nee!s the a!!itional clai to arise out of the sae general set of facts as the original

coplaint. Aowe#er un!er California ?ules of Ci#il 6roce!ure !!ie also nee!s to show that the new clais in#ol#e

the sae acci!ent or in"ury an! refer to the sae offen!ing instruentality in the original coplaint. Aere the in"ury is

!ifferent 3 breach of contract an! !efaation. It is not e#en clear if the two clais not arise out of the sae

occurrence or set of general instruentalities. 4inally the offen!ing instruentalities are !ifferent as well. !!ie is in

IV. JOINDER AND SUBSTITUTION OF PARTIES

A. Joinder of -arties(OL I7.$)1. Mandatory Joinder of Indis&ensable or Conditionally 0ecessary -arties

a. $ person who is sub"ect to ser#ice of process an! whose "oin!er will not !epri#e the court of "uris!iction o#er the

sub"ect atter of the action ust be "oine! as a party in the action if:

In his absence coplete relief cannot be accor!e! aong those who are alrea!y parties or he clais an interest

relating to the sub"ect of the action an! is so situate! that the !isposition of the action in his absence ay ipe!e

his ability to protect the interest or lea#e parties with substantial ris of incurring inconsistent obligations

b. If such a party has not been "oine! in the action:

(1) Court ust or!er that he be a!e a party

() If he cannot be a!e a party court ust !eterine whether in e9uity an! goo! conscience the action shoul!

procee! aong the parties before it

. -ermissive Joinder of -arties

(1) Multiplepersons ay "oin or be "oine! in the sae action if:

They assert any right of relief "ointly se#erally or in the alternati#e in respect of or arising out of thesae transaction occurrence or series of transaction with coon 9uestions of fact or law O?they ha#e a clai right or interest a!#erse to the !efen!ant

B. Joinder of Claims(OL I7.B)

1. 6laintiff ay unite any causes of action that he has either alone or with any other co>plaintiffs against any !efen!ant

C. Class Actions(OL I7.C)

1. 6ariance from /!C-

a. California !oes not ha#e a !etaile! class action statute or rule coparable to 4?C6 /. 4or authority to certify class

actions California courts rely on CC6 K /- which perits certification where:

(1) coon interest O?

() ipracticable to bring the clais before the court

D. S&ecial /orms of Joinder% Inter&leader) Intervention) and Im&leader(OL I7.2)

1. Inter&leader

a. !ule

(1)


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9:ers to 0evada. #+e 0/L files a motion to intervene see$in" to &rotect t+e lea"ue1s interests

re"ardin" oners+i& transfers.

b. As of !i"+t

(1) The California rule on inter#ention as of right CC6 K /-*(b) is nearly i!entical to 4?C6 5(a).

() In California if the person seeing inter#ention:

clais an interest relating to a property or transaction that is sub"ect of the action an! !ispositionwithout the person woul! ipair his ability to clai that interest the court ust perit hi tointer#ene unless his interest is a!e9uately represente! by the other parties.

c. -ermissive Intervention

(1) The California rule re9uires:interest in the atter un!er litigation which is narrower than ?ule 5(b) re9uiring only applicant8sclai or !efense ha#e a 9uestion of law or fact in coon

5. Im&leader(OL I7.)

a. In General

(1) 9ui#alent of ?ule 15which allows !efen!ant to bring in a thir! party who ay be liable for the plaintiff8s clai.

California8s e9ui#alent of an iplea!er is thir!>party cross coplaint

;$M6L%

Im&leader is most often used +ere an insurance com&any +as a duty to indemnify t+e defendant for

t+e &laintiff1s dama"es.

/. /rivolous -leadin"s and 6e2atious Liti"ators(OL I7.4)

1. #rut+ in -leadin"

a. Cannot lie or ae up things. 0u!ges ay ipose sanctions for tactics that are fri#olous or inten!e! to cause

!elay.

. 6e2atious Liti"ation

a. Courts ay enter an or!er re9uiring a #e%atious litigator to obtain lea#e of court before he is peritte! to file new

clais in any California court if the person has:

(1) brought ' uneritorious cases in se#en years

() cannot sue the sae !efen!ant repeate!ly


Duestion /


1) On her way to her thir! gra!e class 6aela age * is struc by a car on the crosswal in front of her public school in


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Duestion 5

$pplicants ay be ase! to analyEe issues arising fro the sae fact pattern as in Duestion / but with the a!!ition of the

following facts:

1) 6aela8s parents file a coplaint in the


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9uestions to be propoun!e! to the !eponent by !irect e%aination ust accopany the notice of a written

!eposition.

/. Sub&oena

a. The atten!ance of a witness at the taing of his !eposition is re9uire! by eans of a subpeona

C. Interro"atories(OL 7.2)

1. 2isco#ery by written stateents un!er oath

. 0umber

a. In California a party ay propoun! to another party either or both of the following:

(1) /' O?

() ore by lawyer !eclaration

/. Continuin" Interro"atories

a. +o continuing obligation to up!ate answers

D. !e7uests for -roduction) Ins&ection) and Co&yin" of Documents8 5ntry U&on Land8 -+ysical or Mental

52aminations(OL 7.)

1. Ins&ection Demands Generally

a. $ party ay !ean! that any other pro!uce an! perit the party aing the !ean! to inspect !ocuents

tangible things an! lan! or other property that is in possession custo!y or control of any other party

b.


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(1) Brief narrati#e stateent of 9ualifications of ach e%pert

() Brief narrati#e stateent of the general substance of the testiony that e%pert will gi#e

(/) ?epresentation that the e%pert has agree! to testify at the trial

(5) ?epresentation that the e%pert will be sufficiently failiar with the pen!ing action to subit to a eaningful ora

!eposition concerning the specific testiony

(') client pri#ilege

b. =or pro!uct pri#ilege

c. 6ri#acy rights steing fro C$ constitution

A6OTATIC$L

6laintiff 6orter file! a clai for personal in"ury against 2efen!ant 2ic. 2uring the !isco#ery process 6orter !ean!e! to

inspect #i!eotapes that the in#estigator hire! by 2ic8s lawyer ha! a!e of 6orter without his nowle!ge !uring the onth

after he was hurt. =hat is the ost effecti#e arguent 6orter can ae in support of his !ean!

2isco#ery is peritte! if it is rele#ant to the trial or can lea! to rele#ant a!issible e#i!ence. $ party ay !ean! to

inspect !ocuents tangible things an! lan! or other property that is in possession custo!y or control of any other party.

Aere 6laintiff wants #i!eo tapes of her a!e by the !efen!ant. 2isco#ery is peritte! if it is rele#ant or can lea! to

rele#ant a!issible e#i!ence. 6orter can assert that the #i!eo tapes #iolate his pri#acy rights as part of his pri#ilege.

VI. DISPOSITION WITHOUT TRIAL

A. Summary Jud"ment(OL 7I.B)

1. $ny party ay o#e for suary "u!gent if it is conten!e! that the action has no erit or that there is no !efense to

the action or procee!ing.

;$M6L%

6laintiff o#es for suary "u!gent at the close of !isco#ery using e#i!ence obtaine! !uring !isco#ery as a basis for

the otion.

. #imin"

a. *' !ays notice re9uire! before the hearing


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/. Standard

a. $ cause of action has no erit if one or ore of the eleents of the cause of action cannot be separately

establishe! e#en if that eleent is separately plea!e! or if a !efen!ant establishes an affirati#e !efense to that

cause of action

b. In California the party o#ing for suary "u!gent ust prepare a eoran!u of points an! authorities with a

stateent of un!ispute! facts with citations to supporting e#i!ence an! an analysis of the rele#ant law.

B. Jud"ment on t+e -leadin"s(OL 7I.B)

1. In General

a. $ party ay o#e for "u!gent on the plea!ings or the court ay on its own otion grant "u!gent on the

plea!ings.

b. The otion ay be a!e e#en though:

(1) a !eurrer a!e by the o#ing party on the sae groun!s has alrea!y been o#errule! pro#i!e! that there

has been a aterial change in applicable case law or statute since the ruling on the !eurrerF or

() the o#ing party !i! not !eur to the coplaint or answer on the sae groun!s as the basis for the otion.

c. $ otion to !isiss a!e after an answer has been file!:

is a otion for "u!gent on the plea!ings

C. Dismissal(OL 7I.C)

1. In General

a. it ight not en! !ay in court fore#er as it can be with our without pre"u!ice

(1) Dismissal it+out &rejudice:

Correctable error

() Dismissal it+ &rejudice:

May not refile another action

. 6oluntary Dismissal

a. By -laintiff

(1) This is often part of the settleent offer in e%change for !isissal

/. Involuntary Dismissal

a. In General

(1) Court has inherent power to !isiss a case but ust consi!er less !rastic alternati#es

b. Discretionary(1) /ailure to -rosecute

;$M6L%

#+e court may dismiss an action in +ic+ t+e defendant +as not been served it+ &rocess to years

after t+e filin" of t+e com&laint.

c. Mandatory

(1) Lac$ of Service

(a) The court ust !isiss an action in which:

the !efen!ant has not been ser#e! with process for thee years

() /ailure to Come to #rial

(a) $n action ust be brought to trial within fi#e years after it has been coence! against the !efen!ant orit will be !isisse!

VII. PRE-TRIAL

A. -re#rial Conferences(OL 7II.$)

1. -ur&ose

a. 6re>trial conferences are generally hel! to:

(1) !eterine proce!ures at trial

() ensure !isco#ery is coplete


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(/) enable parties to settle the atter or agree upon certain issues

B. 3rders(OL 7II.B)

1. Typing the stipulations in the conference

VIII. TRIAL

A. Severin" or Consolidatin" Issues for #rial(OL 7III.$)

1. Severance

a. up !octrine an! !eterine the aount of !aages she is entitle! to for the reo#al. Aowe#er if 6

ha! ase! for &' in !aages for the !iinution in #alue of her lan! the court woul! ha#e se#ere! the legal issue

an! sent it to the "ury.

B. #rial by Jury(OL 7III.B)

1. Jury 6erdict

a. Three 9uarters nee! to be #ote in fa#orF ,1 is a win

. 4aiver

a. Must !ean! right to "ury trial or else it is wai#e!

/. Jurors

a. Selection

(1) 0u!ge an! opposing attorneys ay 9uestion the "ury panel at #oir !ire. In ci#il cases each party gets si%pereptory challenges.

() C+allen"es for Cause

(a) If "ury !oes not fairly represent counity at large.

;$M6L%

Iplie! or actual bias woul! be groun!s to !isiss a "uror for cause.

b. 57ual -rotection !e7uirements

(1) selection ust coply with the Constitution8s 6C an! "urors ust not be e%clu!e! on the basis of race

gen!er or national origin or other !iscriinatory reasons

5. 6erdicts

a. $ "eneral verdict is:

fin!ing for the pre#ailing party

b. $ s&ecial verdict is:

only conclusions of fact fro which the court will !raw the conclusions of law on which "u!gent will be entere!

C. Motions in Jury #rials(OL 7III.C)

1. 0onsuit

a. 2efen!ant ay o#e for nonsuit after plaintiff has presente! all e#i!ence to the "ury.

. Directed 6erdict


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a. In General

(1) $fter all the e#i!ence has been presente! either si!e can o#e for a !irecte! #er!ict. 9ui#alent of a

"u!gent of non suit but the tiing is !ifferent

() $gain the court will consi!er:

only the sufficiency of the e#i!ence in support of the clais for relief or affirati#e !efense

/. Jud"ment 0otit+standin" t+e 6erdict =J036>

a. In General

(1) 0+O7 is a post>trial otion that ust be a!e within the sae tie frae as that for a otion for a new trial

() Motion challenges the "ury8s #er!ict 3 e#i!ence is so clear that the #er!ict is wrong

D. Motion for 0e #rial(OL 7III.2)

1. Grounds

a. In California the groun!s for granting a new trial are purely statutory:

the court has no !iscretion to grant

. $ new trial ay be grante! on all or part of the issues on application of the aggrie#e! party for any of the following

reasons:

(1) newly !isco#ere! e#i!ence

() "uror iscon!ict

A6OTATIC$L

$fter colli!ing with a truc while ri!ing his bicycle a 1>year>ol! boy sue! Truc>Co the copany owning the truc for !aage

for e%tensi#e personal in"uries. The father "oine! in the sae coplaint seeing reco#ery for e%penses he incurre! for the

treatent an! care of the in"ure! son. The case was trie! before a "ury. The plaintiffs8 tol! contra!ictory stories but the "ury

ne#ertheless !eci!e! in their fa#or. If counsel for Truc>Co aes a tiely otion for a new trial can the court grant the otion

+o otion for new trial ust be supporte! by reasons in the statute such as newly !isco#ere! e#i!ence or "uror iscon!uct.

Contra!ictory e#i!ence is not in the statute so the court has no !iscretion to grant a new trial.

5. Motions in 0onJury #rials(OL 7III.4)

1. Correction or Amendment of Jud"ment

a. Court can only correct clerical error such as wrong aount an! not "u!icial errors which can only be correcte! by

new trial otion to #acate "u!gent appeal.

. !elief from Jud"ment

a. /or Mista$e) Inadvertence) Sur&rise) or 52cusable 0e"lect

(1) $pplication for this relief ust be a!e:

within a reasonable tie up to si% onths after the "u!gent is taen

b. Additur and !emittitur

(1) $ otion for addituris:

re9uest to increase aount of !aages awar!e!

() $ otion for remittituris:

re9uest to the "u!ge to re!uce the aount of !aages

A6OTATIC$L

6aul recei#es a notice that he is being ser#e! with a paternity suit an! a !ean! for chil! support. Ae was out of the country

at the tie the chil! was concei#e! an! !oes not now the other. Ae tals to an a!inistrator at


19/22

6laintiff can challenge !efault "u!gent by showing surprise neglect istae or ina!#ertence. 6aul can assert e%cusable

neglect as he recei#e! false inforation fro

a. Claim &reclusionapplies where:

(1) sae parties

() final "u!gent on the erits

(/) sae clai or cause of action

(5) secon! cause of action was or coul! ha#e been litigate! in the first case

/. #est for Collateral 5sto&&el =Issue -reclusion>

a. It applies when:

(1) issue sub"ect of secon! action i!entical to issue in first action

() issue actually litigate! in first action an! was necessary to "u!gent in first action

(/) final !eterination on the erits

(5) party against who preclusion is sought was a party or in pri#ity with party in first suit

C. /inality of Jud"ment(OL I;.C)

1. -arties Bound by Jud"ment

a. Tra!itionally res judicataapplie! only where:

there was a utuality of parties(1) To!ay howe#er utuality of estoppel is no longer re9uire! an! a "u!gent will be effecti#e:

against the foral parties to the subse9uent lawsuit an! all persons in pri#ity with those parties

b. California has an e%pan!e! !efinition of &rivity which inclu!es situations in which the relationship between the

parties is Gsufficiently closeH to "ustify estoppel.

. Use of Collateral 5sto&&el

a. Mo!ernly collateral estoppel can be use!:

offensi#ely or !efensi#ely by the original parties an! by parties not in#ol#e! in prior litigation

;$M6L%


20/22

Two passengers are in"ure! in an airplane crash. 6assenger $ sues the airline an! the court !eterines that its

operation of the aircraft fell short of the re9uisite of care. If 6assenger B later sues the airline in a separate suit

6assenger B can argue that the airline is collaterally estoppe! fro arguing that its con!uct satisfie! the !uty of

care. Con#ersely if the first court !eterines that the airline satisfie! the applicable !uty of care in operating the

aircraft the airline can argue that 6assenger B is collaterally estoppe! fro arguing that it !i! not satisfy the

applicable !uty of care.

/. Securin" and 5nforcin" Jud"ments

a. The courts an! legislature ha#e pro#i!e! eans by which to enforce a "u!gent an! secure a "u!gent in

a!#ance.

D. A&&eal(OL I;.2)

1. In General

a. $n appeal ay be taen:

only fro the final "u!gent in an action

b. $ party ay not appeal:

an interlocutory or!er "u!gents of contept or!er granting or !enying petition for issuance of writ of an!aus

in liite! ci#il case.

. A&&ealable 3rders

a. %aples of appealable or!ers inclu!e:

(1) or!ers !enying or granting suary "u!gent

() or!ers for final "u!gent

(/) or!ers granting a new trial or !enial a otion for 0+O7

(5) or!ers granting or !issol#ing an in"unction

(') or!ers granting a otion to 9uash ser#ice or a suons or stay an action base! on foru non con#eniens

A6OTATIC$L

6hyllis sues 2an an! 2ina "oint tortfeasors for negligence battery assault an! false iprisonent. $t the plea!ings stage

the court !isisses the negligence count against 2ina but not 2an. Can 6hyllis appeal the ruling at this point or ust she

wait until the final "u!gent on all counts

Court has !isisse! one cause of action against one !efen!ant but not another. $llowing appeal at this point ay lea! to

pieceeal appeals an! #arying "u!gents with respect to !ifferent parties to the lawsuit. This sees ore lie an

interlocutory or!er rather than a final "u!gent so it is not appealable until after the trial is o#er.

X. ALTERNATIVE DISPUTE RESOLUTION

A. Arbitration(OL ;.$)

1. Contractual Arbitration

a. Court will copel the parties to arbitrate their contract !ispute It is usual bin!ing enforceable an! sub"ect to #erylittle court re#iew

b. Court !evie of Arbitral -roceedin"s

(1) +ot re#iew the arbitrators istae unless there is a huge frau!. 0u!gent is final

. Judicial Arbitration

a. +ot bin!ing on the parties

b. The court ay or!er "u!icial arbitration:

The court ay or!er arbitration in cases in#ol#ing less than &'.

c. +o "ury an! each si!e presents it case to a neutral person or arbitrator. ach party can re"ect the !ecision an! tae

the case to trial


21/22

B. Mediation(OL ;.2)

1. 2iffers fro arbitration in that the parties negotiate an agreeent that is less rule>boun! than arbitration. There is no

!ecision>aer in e!iation. It is a facilitate! settleent

C. 0e"otiation(OL ;.)

1. ,,- offer is a statutory offer to settle in California.

. The benefit of these offers is:

offering to settle by paying oney

/. If the offer is refuse!:

penalties to be ipose!

a. 6enalties inclu!e:

(1) not entitle! to reco#er court costs !espite being pre#ailing party an! if plaintiff refuses the ,,- he ust pay

offering !efen!ant8s court costs fro tie of offer

() ight ha#e to pay the e%pert of the other si!e

A6OTATIC$L

2efen!ant files a ,,- offer with the court stating GI a willing to gi#e you &1 to settle this case.H 6laintiff re"ects the offer

thining it is ri!iculously low. 6laintiff obtains a "u!gent of &J at trial. $lthough 6laintiff is the pre#ailing party can she

reco#er her post>offer court costs =hat if anything ust she pay 2efen!ant

=ithout ,,- offer to settle 6laintiff can reco#er &J plus all costs. Aowe#er a plaintiff who re"ects !efen!ant8s ,,-

offer has to pay !efen!ant court costs after the ,,- offer an! for any e%pert witnesses use! in trial. Aere 6 gets only

8


Duestion '


2anco a anufacturer incorporate! an! hea!9uartere! in Oregon eploye! 6at a resi!ent of California as its California

salesperson fro 1,, to . In 1,,, To an Oregon resi!ent was hire! as 2anco8s sales anager at the 2ancohea!9uarters in Oregon. In To increase! sales 9uotas an! pressure! 6at to re!uce lea! ties between initial contract

an! final sale. 2espite se#eral warnings to increase sales 6at faile! to eet the new 9uotas an! was fire! on his 'th birth!ay.

2anco cease! !oing business in California an! the sales were ne#er coplete!. $fter fruitless attepts to fin! another "ob 6at

sue! 2anco in a @.


22/22

"ollateral estoppel or issue preclusion is a more relaxed rule than res judicata. or an issue to e arred under collateral

estoppel! it must have een an issue in the first action! which was necessary to the judgment in the first case! and the party

against whom preclusion is sought was party in the first suit or has privity with the party in the first suit. "ollateral estoppel can

e used offensively or defensively.

'ot sure if there is privity with Tom here ut Danco is the same party. $ere! the issue may not e the same etween the

federal and state claim of action. The contract action appears to e similar ut the issue was not litigated in the first case.

There is also no final judgment on the merits as the contract claim was dismissed for lac+ of jurisdiction. The defamation issue

could not have een an issue in the first action! so that claim cannot e estopped. It appears that the Defendants cannot use

collateral estoppel here for either issues as the issues were not litigated previously.


Duestion J

$pplicants were ase! to analyEe issues arising fro facts siilar to the following:

6aul was in"ure! two years ago by a !efecti#ely constructe! achine while woring in an in!ustrial plant in California. The

achine ha! been anufacture! by Manco. 2oc treate! 6aul for his in"uries in a California hospital. 2uring the course of the

treatent 2oc prescribe! e!ication to which 6aul was allergic. 6aul8s con!ition worsene! gra!ually after that but it is

unclear whether his !ecline was !ue to the !rug or to the progression of his in"uries. 6aul sue! the hospital for negligence in

the California

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