Term
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Definition
- Satisfy a statute (e.g., a state long-arm statute), AND
- Satisfy the Constitution (Due Process). |
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Term
| Statutory analysis (In personam jdx) |
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Definition
CA: The state's long arm statute REACHES THE CONSTITUTIONAL LIMIT
Most states have a series of statutes that allow personal jurisdiction in different situations, such as personal jurisdiction over defendants who
(1) are served with process in the state, (2) are domiciled in the state, or
(3) do certain things in the state |
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Term
| Constitutional Analysis (In personam jdx) |
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Definition
(International Shoe)
Test: Does defendant have such MINIMUM CONTACTS with the forum so that exercise of JDX does not offend TRADITIONAL NOTIONS OF FAIR PLAY and SUBSTANTIAL JUSTICE?
Focus on CONTACT - RELATEDNESS - FAIRNESS |
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Term
| Contact (Constitutional Analysis - In personam jdx) |
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Definition
There must be a relevant contact (tie) between D and the forum state.
- Def must PURPOSEFULLY AVAIL themselves of the forum (reach out to forum - mkting, using roads, causing effect, INTERACTIVE WEBSITE)
- FORESEEABLE that Def could get sued in forum |
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Term
| Relatedness (Constitutional Analysis - In personam jdx) |
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Definition
GENERAL personal jdx - Def essentially at home (have CONTINUOUS and SYSTEMATIC ties w/ forum) can be sued for claim that arose ANYWHERE IN THE WORLD
Humans = domiciled; Biz = formed or PPB
SPECIFIC personal jdx - Def NOT at home can only be sued for claims that ARISE out of activities IN THE FORUM |
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Term
| Fairness (Constitutional Analysis - In personam jdx) |
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Definition
Jdx would be fair or rsnbl under the circumstances if (factors)
- Convenience: OK unless it puts Def at SEVERE DISADVANTAGE in lit
- State's interest: provide forum for its cit
- Pl's interest - injured want to sue in home state |
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Term
| In rem and quasi in rem jurisdiction |
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Definition
Jurisdiction is not over D herself, but over her property in the forum.
Constitutional analysis is the same as in personam. |
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Term
| Superior Court's General Subject Matter Jdx |
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Definition
| They can hear any general case |
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Term
| Limited Civil Cases (Subject Matter Jdx) |
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Definition
These are civil cases in which the amount in controversy DOES NOT exceed $25,000.
- LTD DISC, cannot file a SPECIAL DEMURRER. More importantly, in a limited case, generally you CANNOT get PERMANENT INJUNCTION or DECL JUDGMENT or DETERMINE TITLE to land. |
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Term
| Unlimited Civil Cases (Subject Matter Jdx) |
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Definition
| Civil cases in which the plaintiff seeks general equitable relief, amount in controversy exceeds $25,000. |
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Term
| Small Claims Cases (Subject Matter Jdx) |
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Definition
Amount in controversy
- If Pl is an individual: $7,500 or less
- If Pl is an entity: $5,000 or less |
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Term
| Classification of case (Subject Matter Jdx) |
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Definition
Pl INITIALLY determines kind of case - look to AMT OF DEMAND, RECOVERY SOUGHT, VALUE OF PPTY, AMT OF LIEN
- Not incl atty fees, interest on claims or cost |
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Term
| Reclassification of case(Subject Matter Jdx) |
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Definition
Automatic - P AMENDS her COMPL in a way that changes the classification (raises or decreases the amount in controversy from limited to unlimited or unlimited to limited)
On Motion - A party move to reclassify; ct can look to ARBITRATION and SETTLEMENT CONF STMT.
TO LTD if judge convinced matter
- Will NECESSARILY RESULT in a verdict of $25,000 or less OR
- > $25,000 is VIRTUALLY UNOBTAINABLE
TO UNLIMITED if judge convinced POSSIBILITY of > $25,000 |
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Term
| Effect of multiple claims and classification (Subject Matter Jdx) |
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Definition
The ENTIRE CASE is either limited or unlimited. So NO CASE IS MIXED, with some limited and some unlimited.
Thus, if go to unlimited because of cross-complaint then ANY claimant can recover ANY amount. |
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Term
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Definition
Cases for the RECOVERY, DETERMINATION OF INTEREST or INJURY of land.
Lay venue in county where ppty lies. |
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Term
| Transitory action (Venue) |
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Definition
General Rule - Venue proper in any county where ANY DEF RESIDES when the case is filed.
K cases - Also proper in county where K was to be PERFORMED or to be ENTERED
Personal injury or wrongful death - Also proper in county where INJURY OCCURRED
Against CORP
- PPB
- ENTERED or is to PERF K
- BREACH OCCURRED or LIABILITY ARISE
Against Unincorp Biz
- PPB
- Where any member or partner RESIDES
Against Non-CA resident - Any county |
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Term
| Transfer of venue (Venue) |
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Definition
Orig venue IMPROPER, D can move to transfer to a proper county WITH or BEFORE ANSWER, DEMURRER or MOT TO STRIKE
Orig venue PROPER, ct may on mot transfer if
- Reason to believe IMPARTIAL TRIAL CANNOT be had in the orig venue;
- CONVENIENCE OF WIT and ENDS OF JUSTICE would be promoted
- NO JUDGE qualified to act. |
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Term
| Inconvenient forum (forum non conveniens) (Venue) |
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Definition
May dismiss or stay on motion. Must find that “in the interest of substantial justice an action should be heard in a forum outside [CA].”
The court looks at the SAME PUBLIC AND PRIVATE INTEREST FACTORS as in federal court. |
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Term
| Methods of Service (Service of Process) |
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Definition
- PERSONAL
- SUBSTITUTE (DIFFERENT from fed ct)
- Deliver to AGENT of corporation or biz
- Service by MAIL
- Service by PUBLICATION |
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Term
| Substituted service (Service of Process) |
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Definition
Can only use substituted service to serve an individual if personal service “CANNOT W/ RSNBL DILIGENCE” be had.
(1) Try personal service
(2) Then try substitute
- made at Def's USUAL ABODE or MAILING ADDRESS
- left w/ COMPETENT MEMBER of household AT LEAST 18
- person must be INFORMED of CONTENTS
- also MAILED by first-class mail, postage paid to Def
Effective w/in 10 days after mailing |
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Term
| Corporations and other businesses (Service of Process) |
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Definition
| Deliver process to agent for service of process or to an officer, or general manager. These people may be served PERSONALLY OR LEFT W/ SOMEONE APPARENT IN CHARGE at her office during usual office hours. |
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Term
| Service by mail (Service of Process) |
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Definition
Copy of summons and complaint and two copies of acknowledgment (waiver form) are MAILED TO DEF, with self-addressed stamped envelope addressed to P.
(Like waiver of service in fed ct)
- Def has 20 days to return form
- Deemed complete when Def executes waiver |
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Term
| Service by publication (Service of Process) |
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Definition
| Only on affidavit from plaintiff’s attorney that D cannot be served, after demonstrating reasonable diligence to serve D in another way |
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Term
| Service outside California (Service of Process) |
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Definition
| Can be made out of state in any manner allowed by California law OR by mail, postage prepaid, return receipt requested |
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Term
| Immunity from service (Service of Process) |
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Definition
| CA has ABOLISHED immunity from service for those travelling to jdx to testify |
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Term
| Frivolous litigation (Pleading) |
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Definition
- CA stat similar to Rule 11 except 21-day safe harbor applies to both mot of party and court
- Allows the ct to order a pty or his attorney or both to pay expenses and attorney’s fees incurred by another party because of bad faith or frivolous tactics |
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Term
| Complaint content (Pleading) |
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Definition
- Statement of ULTIMATE FACTS constituting the cause of action (fact pleading in CA) for each element
- DEMAND for judgment for relief if seeking damages EXCEPT
** Personal injury and wrongful death AND claims of punitive damages
Def can req Stmt of Damages separately |
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Term
| Heightened pleading requirements (Pleading) |
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Definition
| FRAUD, civil conspiracy, TORTIOUS breach OF K, UNFAIR BIZ prac, and PROD LIABILITY claims among multiple def resulting from exposure to toxins must be pleaded WITH PARTICULARITY |
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Term
| Fictitious defendants (Pleading) |
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Definition
P is genuinely unaware of the identity of a D, she may name the D as a “Doe” defendant.
Must also allege that she is unaware of the D’s true identity and must state the cause of action against the “Doe” defendant. |
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Term
| Verified Pleading (Pleading) |
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Definition
These are signed under oath by the party.
Rare, but can be treated like affidavits. |
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Term
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Definition
- General DEMURRER
- Special DEMURRER
- Mot to QUASH Service of Summons
- Mot to DISMISS or FORUM NON
- Mot to STRIKE
- ANSWER |
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Term
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Definition
Used to assert defenses
- Failure to state facts SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION
- Lack of SUBJECT MATTER JDX
Ct takes factual allegations as true and limits its assessment to the compl; if sustained, Pl can try again |
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Term
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Definition
Used to assert many defenses
- Compl is UNCERTAIN, AMBIGUOUS, OR UNINTELLIGIBLE
- UNCLEAR about theories of liablity
- Lack of LEGAL CAPACITY
- Existence of ANOTHER CASE between same parties
- DEFECT or MISJOINDER of parties
- Failure to PLEAD whether K is oral or written |
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Term
| Motion to quash service of summons |
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Definition
Special Appearance
***Must be made BEFORE or WITH a DEMURRER, ANSWER, OR MOT TO STRIKE - otherwise waiver***
- Lack of personal jdx
- Improper process
- Improper service of process
If ct denies, then get writ of mandate from App. Ct. |
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Term
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Definition
| A party can file this to strike all or part of any pleading. The court may strike “irrelevant, false, or improper matter.” |
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Term
| Anti-SLAPP motion to strike |
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Definition
These are suits brought to chill the valid exercise of First Amendment rights
(1) Def must make a showing that P’s COA ARISES FROM PROTECTED ACTIVITY.
(2) If Def makes showing, the burden SHIFTS TO PL to show the PROBABILITY OF WINNING ON THE MERITS
Mot should not be made unless Pl enforcing public right
If Def wins, then can file malicious prosecution "SLAPPback suit" |
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Term
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Definition
- GENERAL DENIAL - short document, in which D simply denies each and every allegation of P’s compl.
- SPECIFIC DENIAL
- AFFIRMATIVE DEFENSES - must state ultimate facts sufficient to constitute defense
- Pl filed a verified compl, then need verified answer |
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Term
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Definition
All are called CROSS-COMPL
- against the Pl (an opposing party)
- against a CO-DEF, or
- against an impleaded THIRD PARTY DEF |
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Term
| Cross-Complaint against P |
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Definition
Filed before or at the same time as the answer
Compulsory - if it arises from the same transaction or occurrence as P’s cause of action against D
Permissive - if not arise from the same T/O as P’s cause of action |
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Term
| Cross-Complaint against co-party |
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Definition
May be filed anytime before the court has set a trial date
- It must arise from the same T/O as the underlying dispute.
- It is never compulsory (may assert it here as a cross-complaint or may sue in a separate case) |
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Term
| Cross-Complaint against third-party defendant |
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Definition
May be filed anytime before the court has set a trial date.
- Never compulsory
- Usually for indemnity or contribution |
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Term
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Definition
Pl has a right to amend (as a “matter of course”) before defendant files an answer or demurrer
- Any party can seek leave to amend (like fed ct)
- Amt to conform to evidence ok too |
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Term
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Definition
Same as federal ct
- Orig compl was FILED BEFORE SOL RAN and contained charging allegations against the fictitious Def
- Pl was GENUINELY IGNORANT of the identity of the Doe defendant(s) and
- Pl pleaded that IGNORANCE in original compl |
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Term
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Definition
Same as fed ct except
- No presumptive TIME LTD or LTD on number of dep |
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Term
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Definition
Same as fed ct except
- Form rogs - no limit
- specific rogs - 35 ltd but can get more w/ decl to ct |
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Term
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Definition
Like fed ct, but ONLY SERVED ON PARTIES
To get items from non-parties, take depo and serve w/ SUBPOENA DUCES TICUM |
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Term
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Definition
Same as fed ct except
Def has RT TO DEMAND one physical exam of P in PERSONAL INJURY CASES
- Lawyer for Pl has right to attend med exam, but need ct order to attend mental exam |
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Term
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Definition
Same as fed ct - 35 max
- No limit on number of requests to admit the genuineness of docs |
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Term
| Discovery in limited civil cases |
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Definition
- 1 depo
- combined 35 rogs, inspection demands, and req for admission
- Can get additional discovery only with court order |
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Term
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Definition
In unlimited cases only
- No DUTY TO SUPPLEMENT in CA
- Req pty can propound a SUPP ROG to elicit later-acquired information bearing on answers previously made.
- Done TWICE before trial date set, and ONCE after |
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Term
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Definition
Anything “relevant to the subject matter involved in the pending action"
"Rsnbly calculated to lead to discovery of admissible evid"
PRIVILEGED matter not discoverable - must object w/ PARTICULARITY and provide privilege log |
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Term
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Definition
Same as fed ct, except:
Ltd to things generated by attorney or agent
c.f. federal where it can be generated by any rep of party |
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Term
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Definition
- Any party may request the simultaneous exchange of expert witness information.
- MUST EXCHANGE a list of experts to be called at trial, declare the nature and substance of testimony, and the expert’s qualifications.
- LTD to TESTIFYING EXPERT
- If do not exchange, then EXCLUDE EXPERT FROM TESTIFYING |
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Term
| Enforcement of discovery rules |
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Definition
Must meet and confer to work out problems before seeking court orders
Sanctions include:
(1) MONETARY SANCTIONS (expenses and attorney’s fees incurred by other party because of misuse),
(2) EST ORDER
(3) REFUSE TO ALLOW PTY TO SUPPORT Its position with evidence at trial,
(4) STRIKE PLEADING
(5) entering DEFAULT JUDGMENT against D or DISMISS COA
*** Pty may seek a PROTECTIVE ORDER to protect against unwarranted annoyance, embarrassment, oppression, burden or expense. |
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