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California Bar Review - Civil Procedure
California Bar Review - Civil Procedure

Additional Law Flashcards




P (CA) sues D (CA) in federal district court, for (1) violation of federal antitrust laws, and joins a transactionally related claim for (2) violation of state antitrust laws. OK?
Claim (1) is OK because it's a FQ. But Claim (2) is not FQ (b/c based on state law) and does not meet diversity. Can claim (2) invoke supp Jx? YES. Same T/O, and the limitation for claims violating complete diversity doesn't apply b/c this is not a diversity case - it invoked FQ, not diversity.
P (UT) sues D-1 (CA) and D-2 (UT) in one case in federal district court. The claims arise from the same transaction. The claims exceed $75,000. The claim by P against D-1 invokes diversity Jx. The claim by P against D-2 does not. Can the claim by P against D-2 invoke supp Jx?
No. Even though the claim is same T/O, it would violate the limitation on Supp Jx that claims violating complete diversity cannot be joined, if the case is a DIVERSITY case.
P (PA) sues D-1 (CA) in federal district court, on a state claim for $100,000 and joins a transactionally related claim against D-2 (NV) in the same case. The claim against D-2 is for $50,000. There is no FQ. The claim against D-1 invokes diversity. The claim against D-2 doesn't b/c even though citizenship is OK, the claim does not exceed $75,000. Can the claim against D-2 invoke supp Jx?
Yes. Same T/O, and Supp Jx is permissible even though it's a diversity case and 2nd claim is not a federal question - it violates only the jurisdictional amount requirement of diversity Jx and not complete diversity.
P sues D. D files an answer in which he asserts the affirmative defense of lack of personal Jx. Valid defense?

In federal court, yes.


In CA court, no - if D's objection appears in an answer it's not a general appearance. Personal Jx defense is waived. D should've submitted a motion to quash service of summons (special appearance).

Summarize the waiver problems in civil procedure (federal and CA)


You waive personal Jx, venue, process, and service process if you don't put it in first Rule 12 response (Rule 12(b) motion or Answer)


Compulsory claims, if not raised before have to answer, are waived!

Affirmative defenses MUST be raised in pleadings, or else can't raise later!




You waive personal Jx if you don't raise it in a SPECIAL appearance (i.e. motion to quash service of summons).

You waive special demurrer issues (technical stuff), if you don't put it in answer or demurrer.


You waive venu

Summarize the outline for subject matter Jx and personal Jx answers.


"Subject matter Jx involves the court's power over a particular type of case."



"Personal jurisdiction refers to the ability of a court to exercise power over a particular D. Under the Federal Rules, a federal court must analyze personal Jx as if it were a court of the state in which it is located."


Statutory Limitations on Personal Jx: domicile, presence + service of process, consent, acts bringing D w/in scope of long-arm statute.


Traditional Bases [analysis]


Long-arm statute: "If State X has a long-arm statute, then Jx is proper so long as the exercise of Jx meets federal Xnal requirements. In [state], long-arm statutes reach the Xnal limit."


Minimum Contacts: "... In order for the exercise of Jx to be proper, does D must have such MINIMUM CONTACTS w/ the forum state so that exercise of Jx does not offend traditional notions of FAIR PLAY AND SUBSTANTIAL JUSTICE." 

* Purposeful Availment of benefits and protections of the forum state

* Foreseeable that D would be required to defend in State X.


[conclusion on minimum contacts]


Fair Play & Substantial Justice--Fairness: "To determine whether the exercise of Jx is fair, courts will consider factors such as the (i) relatedness between D's contact and the forum, whether the claim arose from within the activity w/in the state, and any systematic and continuous activity, (ii) relative inconvenience of D to litigate in the forum state, and (iii) forum state's interest in providing redress for its citizens"

Relatedness/Systematic & Continuous Activity

Convenience (in light of specific facts in dispute)

Forum State's Interest (incl. right of citizens to greater redress)


[conclusion on overall personal Jx]

Essay outline for questions on forum non conveniens?


[Jx refers to power of court over D and subject matter of the action... venue relates to the proper district in which the matter will be decided]

["... can be brought in a federal judicial district where (i) any defendant resides, if all Ds reside in the same state, (ii) the cause of action arose, or (iii) any D is subject to personal Jx."





"Although venue is proper in State X, the discretionary doctrine of forum non conveniens allows a federal court, for the convenience of the parties and witnesses and in the interest of justice, to transfer a civil action to any other district where it might have been brought, or, if transfer is not possible, to dismiss the civil action."


"The federal court must evaluate both public and private factors in making its decision. Important public factors for the court to consider are the availability of an alternative forum, plaintiff's choice of forum, and the forum state's interest in providing a forum for its residents. Important private factors for the court to consider are the convenience of the parties and the witnesses, location of the evidence, and where the cause of action arose."


Public Factors


Private Factors



Regarding jurisdictional amounts, what are the various rules re: aggregating claims?

A single P can aggregate his/her claims together to meet the Jx amount.


Different Ps do not aggregate each other's claims to meet the Jx amount.


Claim against joint Ds can be aggregated.


D's >$75,000 counter-claim can give a federal claim a "diversity" claim

Which claims must be from same T/O in order to be joined?

Claims vying for Supp Jx

Cross-claims / (CA: cross-complaints)


Regarding counter-claims by D against P, these are COMPULSORY if from same T/O, otherwise they're permissive

Important deadlines in civil cases?


Default judgment for P if D doesn't reply in 20 days. (if motion to dismiss fails, 10 days from that point)


For removal to federal court, must be w/in 30 days after SERVICE of "first removable document" (usually service of process, or when federal Jx is triggered)... and in a diversity case must remove w/in 1 year after case was FILED (D can be caught in bind if becomes "removable" after 1 year!)



Default judgment for P if P doesn't reply in 30 days


Compare venue rules for federal courts and CA.


1. District where any D resides, if all Ds in the same state

2. OR where cause of action occurred.

Fallback - Any district where a D is subject to personal Jx


Corporations: all districts where subject to personal Jx when case is filed! (different from "citizenship")


Special rule: if all Ds in same state, then... __?__



1. Any county where any D resides

2. (contract) where K was entered or to be performed

   (P.I. + wrongful death) where injury occurred


Corporations: principal place of business, where entered or was to perform K, where breach occurred or liability arises


Differences in rules regarding service of process between FRE and CA?


Serving one's agent?


Serving in foreign state?


Substituted service involves leaving it at D's usual abode, w/ someone of suitable age and discretion who lives there.



* MUST attempt personal service first... substituted service only if "cannot w/ Rz diligence" give personal service

* Must mail also (effective 10 days after mailing)


FRE: Service on D's agent

CA: Also at D's office during usual office hours, w/ someone apparently in charge at her office


Foreign state?

FRE: law of forum state or of state where service is

CA: law of CA, or by mail w/ return receipt requested


"Rule 11" violations? And difference btwn federal and CA?

Whatever lawyer signs, certifies good faith (different elements), recertifies w/ every use


FRE: must raise w/ other side first, 21-day safe harbor

CA: If completely w/o merit, can file now


What are the various motions D can raise to try to get rid of case?


Which objections are waivable and not waivable?


What motion(s) to win case on the basis of law?



Rule 12(b) motion:



* Lack of personal Jx

* Insufficiency of process, or service of process

* Improper venue


Not Waivable (until after trial):

* Failure to state a claim

* Failure to join indispensable party

* [even after trial!] Lack of subject matter Jx




Motion to quash service of summons

* Lack of personal Jx

* Insufficiency of process, or service of process


General demurrer

* Lack of subject matter Jx

* Failure to state facts sufficient to constitute a cause of action



Summary judgment

* Court looks at evidence pleadings (incl. admissible evidence, and pleadings showing admissions) [beforehand, looked only at the pleadings]

What are SLAPP motions, and what rules apply?

California law only:


SLAPP: strategic lawsuits against public participation


D can file this, when is sued for an act in furtherance of D's free speech right or right to petition govt on a public issue

* EXCEPTION WEAKENS THIS: if P's suit is truly on behalf of the general public (i.e. doesn't seek greater relief than that sought for public)


If D proves arose from protected activity, burden shifts to P to show PROBABILITY of winning on the merits (tough standard)


D can sue for malicious prosecution (SLAPPback suit)!


D adding new claims: attack plan?



[in CA, these are all called cross-complaints]


Counterclaim (D v. P)

1a. Compulsory (same T/O)... must raise before have to answer, or waived!

1b. other ones are Permissive

2. Test for subject matter Jx!


Cross-claim (D v. 3rd party)

1. MUST arise from same T/O (and never compulsory)

2. Subject matter Jx analysis (always okay b/c same T/O)




1. P adding a new claim, any problem?


2. P changing D, any problem?


1. If P adds new claim after SOL has run, it "relates back" ONLY if same T/O


2. ONLY if P sued wrong D first and right D knew about it (1 concerns same conduct, 2 new D knew, 3 new D knew he/she was the correct D)



1. Same

2. Same, but ALSO can substitute a "Doe" and relate back.

Which discovery motions can apply to non-parties and which cannot?


* depositions

* [can't in CA - need to serve w/ subpoena duces tecum] request to produce (physical things, permit entry...)


Not okay:

* interrogatories

* requests for admission

* physical or mental examination (need court order)

Generally, what's available to discovery, and what is an important exception?

Generally, stuff that's Rzably calculated to lead to admissible evidence (doesn't itself have to be admissible!)


Work product exception:

* material prepared in anticipation of litigation (lawyers and their agents)

* Discoverable IF: substantial need, and not otherwise available

ABSOLUTE protection if: mental impressions, opinion, conclusions, legal theories


Restrictions on adding multiple Ps and Ds?


1. arise from same T/O

2. Raise at least one common question


Test for Jx!

Which parties MUST be joined?

1. Those absentees, when one of the following is true:

* A's interest may be harmed if he isn't joined (practical harm)

* w/o A, court cannot accord completel relief,

* A claims an interest which subjects a party to multiple obligations

* [joint tortfeasors?]


2. ALSO test for personal Jx and subject matter Jx!! (otherwise proceed without, or dismiss! balancing test...)

The 2 tests for class actions?



Subject Matter Jx (when testing diversity, look only to representatives!)


All 4 of these!

1. Numerosity (too many for "practicable joinder")

2. Commonality - some questions of law or fact in common to class

3. Typicality - rep's claims/defenses typical to class

4. Representation is adequate - class rep will fairly and adequately represent class


3 types of class actions:

1. "Prejudice" - necessary to avoid harm to class members or other party (e.g. many claimants to a fund that a few could deplete)

2. Injunction or declaratory judgment sought b/c class was treated alike by other party (e.g. employment discrimination)

3. "Damages" (and this requires notice and opt-out)

     * common questions predominate over individual questions

     * AND class action is the superior method to handle the dispute (e.g. the mass tort / accident)



"When the question is one of a common or general interest, of many persons... and it is impracticable to brin them all before the court, one or more may sue or defend for the benefit of all" NEED:

* Ascertainable class

* Well-defined community of interest (pretty open-ended) -

     - common questions predominate

     - representative is adequate

     - class will result in substantial benefit to the parties and the court

What if we have a case involving both questions of law and equity? What is decided first?


Law claim first (for jury)



Equity issues first


Motions where judge disregards the jury?


What's the mistake not to make??



JMOL - motion for judgment as a matter of law

RJMOL - renewed motion for judgment as a matter of law (can ONLY raise if raised a JMOL motion during the trial!)



Motion for directed verdict

JNOV - motion for judgment notwithstanding the verdict

What are the exceptions to the final judgment rule?

Situations allowing for interlocutory review to an appellate court before trial is over:


When more than one claim, or multiple parties, and only (one) is resolved at trial (FRE: must expressly direct entry of final judgment)


Appeals re: certifications of class actions


CALIFORNIA also has writs of mandate (or prohibition) against lower court (technically not appeals)

* EXTRAORDINARY - must show:

     1. irreparable harm (helps if public interest e.g. pollution)

     2. normal route of appeal from FINAL judgment inadequate (kinda the same, yes?)

     3. has beneficial interest in outcome of writ proceeding


Requirements for claim preclusion and issue preclusion?


What is the California rule that affects this?


CLAIM PRECLUSION (res judicata)

* Same P against same D

* Final judgment on the merits (includes discovery abuse, default judgments), opportunity to appeal ignored [CA: must lose opportunity to appeal!]

* same claim / cause of action asserted (same T/O)

     CA splits "causes of action" from same T/O, divides injuries to body and injury to property as separate!


ISSUE PRECLUSION (collateral estoppel)

* final judgment on the merits (see above)

* same issue was actually litigated and determined in Case 1 (defaults don't count!)

* Issue was essential to judgment in Case 1

* Against someone who was a party (or represented by a party) in Case 1

* WHO can assert? go through all steps

     - traditional: mutuality rule - a party in Case 1

     - Nonmutual defensive issue preclusion (okay, if party had full chance to litigate in Case 1)

     - Nonmutual offensive issue preclusion

          Okay if not not "unfair" (on Bar, probably fails!)

          1. had full and fair opportunity to litigate in Case 1 (like above)

          2. could foresee multiple suits

          3. P couldn't have joined easily in Case 1

          4. No inconsistent judgments on record

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