FRCP CALIFORNIA DISTINCTIONS CALIFORNIA

Personal Jurisdiction same as FRCP; In rem and Quasi In rem Jurisdiction same as FRCP; Subject Matter Jurisdiction general subject matter jurisdiction, i.e. CA superior court can hear any civil case; - exception: federal question cases that invoke exclusive federal jurisdiction, i.e. BK, federal securities, antitrust, patent infringement; Limited Civil Cases amount in controversy does not exceed $25K; no permanent injunction or declaratory action; - governed by statutes that limit pleadings and discovery; - no claimant can recover more than $25K; Unlimited Civil Cases amount in controversy exceeds $25K, claim of equity, i.e. any type of claim; Small Claims amount in controversy does not exceed $7.5K for individual and $5K for entity; procedures are simple; Classification of Case initially determines what kind of case; amount in controversy does not include attorneys fees, interest, or litigation costs; Reclassification of Case if case misclassified or subsequent events make clear that original classification should be changed, case if simply reclassified by clerk of court or party through motion and notice of hearing to all parties; - court can look beyond compliant to determine whether or not case should be reclassified, i.e. judicial arbitration awards and settlement conference statements; - unlimited to limited court convinced that matter will necessarily result in verdict of $25K or less; - limited to unlimited court convinced that there is possibility that verdict will exceed $25K; Multiple Claims whole case is either limited or unlimited; - aggregate claims above $25K allowed if one against one ; - if 1s claim is above $25K and 2s claim is below $25K against same , then case is still unlimited; - if s claim is above $25K and s cross-complaint is below $25K, then case is still unlimited; Venue in which county to file case; Local Action for recovery of, or determination of interest in, or for injury to real property, lay venue in county where land lies; Transitory Action lay venue in county where any resides when case filed; Contracts Action may also lay venue in county where K was entered or to be performed; Personal Injury or Wrongful Death Action may also lay venue in county where injury occurred; -Corporation or Business Association lay venue in county (a) where PPB, (b) where it entered or is to perform K, (c) where breached occurred or liability arises; Nonresident s lay venue anywhere in state; Transfer of Venue from one county in state to another county in state; - if original venue is improper, may move to transfer to property county before or with responsive pleading; - if original venue is proper, court may on motion transfer if (a) reasonable to believe impartial trial cannot be had in venue, (b) convenience of witnesses and ends of justice would be promoted, or (c) no judge is qualified to act; - transfer to county where parties agree; if parties cannot agree, court will choose; Forum Non Conveniens court dismisses because far more

FRCP
Subject Matter Jurisdiction requires: (1) federal question claim arises under fed law; or (2) diversity (a) complete diversity and (b) amount in controversy more than $75K;

Venue in which district to file case; Local Action actions re ownership, possession, or injury to land filed in district where land lies; Transitory Action may lay venue in district where: (a) all s reside; if s reside in different districts of same state, lay venue in district where any reside; (b) where claim substantially arose; (c) if none satisfies (a) or (b), then where any is subject to personal jurisdiction when case filed; or district where any may be found;

Transfer of Venue may only transfer to district where case could have been filed, i.e. proper venue and personal jurisdiction over s; - court discretion to transfer if (a) public factors, i.e. what law applies and what community should be burdened with jury service, and (b) private factors, i.e. convenience;

Forum Non Conveniens may dismiss where appropriate court is

convenient and appropriate court in different judicial system, i.e. in another state or foreign country; - state court may dismiss or stay on motion if finds, in the interest of substantial justice, action should be heard in forum outside CA; - court looks to (a) public factors, i.e. what law applies and what community should be burdened with jury service, and (b) private factors, i.e. convenience; - court may grant motion with condition that waives PJ or statute of limitations objection in other forum; Service of Process Substituted Service may only use substituted service to serve individual if personal service cannot with reasonable diligence be had; - must be made at s usual abode or mailing address; - must be left with competent member of household who is at least 18 years old; - person must be informed of contents; - process must also be mailed, first-class mail, postage prepaid to ; - deemed effective 10 days after mailing; Waiver of Service By Mail has 20 days to return waiver; service deemed complete when executes waiver; deemed like service not just waiver of service; Service By Publication affidavit by s attorney that cannot be served, after demonstrating reasonable diligence to serve in another way; Service Outside State may be made out of state in any manner allowed by CA law or by mail, postage, prepaid return receipt requested; deemed complete by mail 10 days after mailing; Immunity may be served with process while temporarily in state to be a witness or party in another civil case, i.e. immunity abolished; Other Documents subsequent documents may be served by delivery or mail; if mailed, add 5 days to any required response; Pleadings Fact Pleading requires more detail than mere notice of the parties; Pleadings Frivolous Litigation similar to FRCP but the 21 day safe harbor applies not only to motions brought by party but also when court raises issue on its own; - court may order party or attorney or both to pay expenses and attorneys fees incurred by other party because of bad-faith or frivolous tactics, i.e. without merit or for sole purpose of harassing opposing party; Pleadings Complaint (1) no statement of SMJ; (2) statement of facts constituting cause of action, stated in ordinary and concise language, i.e. ultimate facts; (3) demand for relief; Damages must state amount of damages sought, except in PI, wrongful death cases, or for claim of punitive damages; - to find out PI, wrongful death, and punitive damages, may request a statement of damages, must provide SOD within 15 days; - must also serve SOD on before can take default; Heightened Pleading Requirements plead with particularity where fraud, civil conspiracy, tortious breach of K, unfair business practices, product liability claims with multiple s from exposure to toxins; Fictitious Defendants if is genuinely unaware of identity of , may name as doe ; must also allege that is unaware of s true identity and must state cause of action against doe ; - may amend complaint, even after statute of limitations runs, when discovers identity of ; Pleadings Defendants Response must respond within 30 days

one to which transfer is impossible because it is in another judicial system; - almost never granted if is resident of present forum; - requires strong showing of public and private factors (see above);

Service of Process Substituted Service process is left at s usual abode with someone of suitable age and discretion who resides there;

Waiver of Service By Mail has 30 days to return waiver;

Service Out of State process may be delivered to in another state where forum state law allows, i.e. long-arm statute; Immunity may not be served where in state to be witness or party in another civil case; Other Documents subsequent documents may be served by delivery or mail; if mailed, add 3 days to any required response; Pleadings Notice Pleading documents need only enough detail to allow other side to be on notice and make a reasonable response; Pleadings Rule 11 Sanctions may be levied against attorney, firm, or party to deter bad conduct; - other party must be given chance to be heard before sanctions imposed; - motion for violation served on other party but not immediately with court; party allegedly violating has 21 days to withdraw document or fix problem; - court may raise Rule 11 on its own without safe harbor; Pleadings Complaint (1) statement of SMJ; (2) statement of claim; (3) demand for relief;

Heightened Pleading Requirements plead with particularity and specificity where fraud, mistake, and special damages (i.e. not flow naturally from event); Fictitious Defendants not allowed in fed court;

Pleadings Defendants Response must respond within 20 days

after service of process is deemed complete; General Demurrer may be used only to assert defenses that (a) failed to state facts sufficient to constitute a cause of action, (b) lack of subject matter jurisdiction; - may be raised before answer, with answer as affirmative defense, or after answer as motion for judgment on the pleadings; Special Demurrer compliant is uncertain, ambiguous, or unintelligible; unclear about which theories of liability are asserted; lack of legal capacity; existence of another case between same parties on same cause of action; defect or misjoinder of parties; failure to plead whether K is oral or written; failure to file certificate, i.e. suits for professional negligence; - defenses are generally waived if not raised by demurrer or answer; - not available in limited civil cases; - general and special demurrers are sustained or overruled; Motion to Quash Service of Summons asserts defenses of lack of personal jurisdiction, improper process, improper service of process; - must be made before or with demurrer or motion to strike, or else waives defenses, i.e. NOT after answer or as affirmative defense in answer; - denial gives moving party only 10 days after written notice of entry of order denying motion to seek appellate review by writ of mandate from court of appeal; Motion to Dismiss or Stay for Inconvenient Forum (Non Conveniens) waived if raised after demurrer or motion to strike; may make motion after answer; Motion to Strike can file to strike all or part of complaint irrelevant, false, or improper matter; Anti-SLAPP Motion to Strike strategic lawsuits against public participation brought to chill valid exercise of free speech; if sues for act took to further s rights to free speech or right to petition government on public issue, can make anti-SLAPP motion to strike; Pleadings Defendants Response Answer General Denial short document in which simply denies each and every allegation of s compliant; permitted if can do so consistent with rules about frivolous litigation; - affirmative defense must have ultimate facts sufficient to constitute affirmative defense; otherwise may be able to file demurrer against answer; - if filed a verified complaint, must filed verified answer; - answer cannot include demand for recovery against ; must file a cross complaint for demand; Timing no later than 30 days after service of process deemed complete, must file answer or demurrer or another motion; - motion to strike does not extend time to answer or demur; - if demurrer is overruled, must answer within 10 days after ruling; Pleadings Claims by Defendant Cross-Complaints = counterclaim, cross-claim, impleader; Cross-Complaint against Plaintiff = same as counter-claim; filed before or at the same time as answer; (1) against opposing party; (2) compulsory if it arises from same T/O as s claim against ; (3) not compulsory if it does not arise from same T/O as s claim; Cross-Complaint against Co-Party = same as cross-claim; may be filed any time before court has set trial date; (1) against co-party; (2) must arise from same T/O; (3) never compulsory; Cross-Complaint against Third-Party Defendant = same as impleader; may be filed any time before court has set trial date; (a) may join non-party (TPD) to pending case; (b) never compulsory; (c) TPD may raise defenses that could have raised

after service of process is deemed complete; Rule 12(b) Motion to Dismiss failure to state a claim, i.e. even if all allegations are true, has not stated a cause of action; lack of subject matter jurisdiction;

- personal jurisdiction, improper venue, insufficiency of process, and insufficient service of process are waivable, i.e. must be put in first response (motion or answer) or else they are waived;

Motion to Strike attacks immaterial issues in compliant, i.e. demand for jury trial where right does not exist;

Pleadings Defendants Response Answer

Timing no later than 20 days after service of process deemed complete; - if made rule 12 motion that was denied, must serve answer within 10 days after court ruling; Pleadings Claims by Defendant Counterclaim = claim against opposing party to filed with s answer; - requires SMJ or supplemental jurisdiction; Cross-Claim = claim against co-party that arises from same T/O as underlying action; - requires SMJ or supplemental jurisdiction; Impleader = third party practice; may want to bring in 3d party because TPD may owe indemnity or contribution to on underlying claim; - right to implead within 10 days after serving answer; after requires

against ; (d) right to join TPD is broader,* not just for indemnity or contribution but for any claim TPD is liable for on underlying case if it arises from same T/O as claim against defending party or involves interest in controversy which is basis for underlying claim; - TPD must respond within 30 days of service of cross-complaint; Pleadings Amending Pleadings Right to Amend has right to amend before files answer or demurrer; - after demurrer but before trial on issue raised by demurrer, may amend once as matter of course; Seek Leave to Amend may seek leave to amend anytime, granted unless delay or prejudice; Grant Leave to Amend if court sustains demurrer or grants motion to strike, court will usually do so with leave to amend, allowing to try again; Relation Back add new claims after statute of limitations has run, only if new claim relates to same general facts as originally alleged; may change after statute of limitations has run if there was a misnomer, i.e. sued wrong and correct knew about it; Relation Back (Fictitious s) allowed if (a) original complaint filed before statute of limitations ran and contained charging allegations against fictitious s; (b) was genuinely ignorant of identity of Doe s; (c) pleaded that ignorance in original compliant; - must substitute true within 3 years of filing for cause of action to relate back; Discovery Required Disclosures none;

court permission; - requires SMJ or supplemental jurisdiction;

Pleadings Amending Pleadings Right to Amend has right to amend once before serves answer; has right to amend once within 20 days of serving his answer; - if amends, must respond within 10 days or amount of time remaining on 20 days, whichever longer; Seek Leave to Amend party may seek leave to amend if justice so requires; court will look at factors such as delay and prejudice;

Relation Back same; however, no fictitious s;

Discovery Discovery Tools must get court order to take discovery from within 10 days after was service with process; within 20 days to take s deposition; Depositions no presumptive time limit on deposition unless court orders; no presumptive limit on number of depositions to be taken in case; Interrogatories no limit on the number of form interrogatories that may be used; can serve only 35 specific interrogatories on another party and interrogatories may not contain subparts; - may serve more with declaration supporting need for more; responding party may seek protective order; Request to Produce no statutory limit on how many requests can be served without court permission in unlimited civil case; party may get discovery from non-party through deposition along with subpoena duces tecum; Medical Examination lawyer has right to attend physical examination; lawyer may attend mental examination if court order allowed it; Request for Admission maximum number of requests that can be served on a party in unlimited civil case is 35; Discovery in Limited Cases maximum of 1 deposition; combined total of 35 ROGs, RTP, RFA; may get additional discovery only with court order; Supplemental Discovery no standing duty to supplement discovery

Discovery Required Disclosures material must be produced even if other party does not request; Initial Disclosures within 14 days of discovery conference, parties must ID persons and give copies of documents likely to have discoverable information that disclosing party may use to support claims or defenses; computation of damages; insurance for judgment; Experts must ID experts who may be used at trial, written reports containing opinions, data used, qualifications, compensation; Pretrial not later than 30 days before trial, must give detailed information about trial evidence, including documents, ID of witnesses to testify live or by depo; Discovery Discovery Tools no discovery until after discovery conference; Depositions 7 hour time limit on deposition unless court orders or parties agree otherwise; no more than 10 depositions allowed unless court orders or parties agree otherwise; Interrogatories may not serve more than 25 without court order or stipulation;

Request to Produce request another party to make available for review documents or things, or non-party if accompanied by subpoena; Medical Examination lawyer does not have right to attend physical or mental examination; may get court order to allow it;

Duty to Supplement if party learns that response to required

as long as information was accurate and complete when given; requesting party may propound supplemental requests twice before trial date is set and once after trial date is set; Discovery Scope Standard party may discover anything relevant to subject matter involved in pending action; Relevant includes material reasonably calculated to lead to discovery of admissible evidence; Privileged Matter not discoverable; responding party must object with particularity; Privacy CA constitution has right to privacy, limiting discovery; though, not absolutely; court balances need for discovery against need for privacy; Work Product exclusion for documents generated by attorney or attorneys agent, but not by party or representative of party; - party may get discovery of work product if court determines that denial of discovery would unfairly prejudice party seeking discovery or will result in injustice; - writing reflecting attorneys impressions, conclusions, opinions, or legal research is never discoverable; Experts any party may request simultaneous exchange of expert witness information; requires party to exchange list of experts he expects to offer at trial, declaration of nature and substance of testimony, and experts qualifications; - can include request for reports by expert; - party may take deposition of expert; - failure to exchange information may result in exclusion of expert from testifying; Discovery Enforcement Meet and Confer parties must meet and confer to work out problems before seeking court orders; - failure to do so may result in monetary sanction of expenses, including attorneys fees, incurred by other party for failure; - exception: where there is total failure to respond, then no meet and confer required; Misuse of Discovery not playing by rules, making unjustified objections, abusive motions, failing to confer, refusal to respond all prohibited; - court may sanction any person, including parties and attorneys, guilty of misusing discovery process; - parties must be given notice and opportunity to be heard; Sanctions monetary, including expenses and attorneys fees incurred by misuse, establishment order, refusal to allow party to support position at trial, striking pleadings, entering default judgment or dismissing claim; - court usually starts with monetary sanctions and moves to more severe; court has discretion to select sanctions; take into consideration whether abuse is willful; Protective Order party may seek to protect against unwarranted annoyance, embarrassment, oppression, burden or expense; - court will balance need for information with oppression, etc.; Complex Cases Joining Parties Permissive Intervention similar to FRCP but applicant must have interest in matter in litigation, or in success of either parties; applicants interest must be direct and immediate and not indirect or inconsequential; Interpleader procedurally same as FRCP; not clear whether person instituting interpleader may claim that he owns property interpleaded, i.e. maybe stakeholder can interplead only if he does not claim to own property; Class Action when question is one of common or general interest of many persons, and it is impracticable to bring them all before court,

disclosure, interrogatory, or request for production or admission is incorrect or incomplete, party has duty to supplement; Discovery Scope Standard may discover anything relevant to claim or defense; Relevant reasonably calculated to lead to discovery of admissible evidence;

Work Product work product does not have to be generated by lawyer; may be by any party or any representative of party; - party may get discovery of work product if opposing party shows (a) substantial need and (2) information is not otherwise available; - writings of mental impressions, opinions, conclusion, or legal theories not discoverable;

Discovery Enforcement Good Faith party seeking sanctions must certify to court that he tried to get discovery in good faith without court involvement;

Partial Violation party answers some and objects to others; if objections are not upheld, party will be subject to light sanction; Total Violation party fails to attend depo, respond to ROGs/RTP; party will be subject to heavy sanctions; Sanctions (light) court order compelling response plus awarding of costs; (heavy) if violation of court order, impose sanctions plus award costs or hold party in contempt; establishment order, i.e. establish facts as true; strike pleadings of disobedient party; disallowed evidence from disobedient party; dismiss s case; enter default judgment against ; - if total violation, court imposes sanctions plus costs, i.e. no need for order compelling answers; Complex Cases Joining Parties Permissive Intervention absentees claim or defense and pending case have at least one common question; court has discretion to accept claim; claim may not delay or prejudice; Interpleader person instituting interpleader may claim that he owns property interpleaded; Class Action (a) numerosity, (b) commonality, (c) typicality, (d) adequate representative;

one or more may sue or defend for benefit of all; - must show (a) unascertainable class, (b) well defined community of interest; - well defined community of interest = (1) common question predominate, (2) representative is adequate, (3) class will result in substantial benefit to parties and court; Types of Class no separate types of class actions; Individual Notice not required and may be by publication; however, court may order individual notice; - court decides who pays for cost of notice; Opt Out all class members who do not opt out are bound by class judgment; opt out may be allowed by court; Class Counsel court is not required to appoint class counsel; Settlement or Dismissal must be approved by court; Amount in Controversy aggregated class claims, i.e. 26,000 members in class who have each been harmed $1; total claim is $26,000;

Adjudication Pretrial Voluntary Dismissal can move to dismiss anytime before trial starts; court may dismiss case with or without prejudice; - moves to voluntary dismiss after trial starts, may be granted only with prejudice unless parties stipulate otherwise or court finds good cause to dismiss without prejudice; Involuntary Dismissal court has discretion to dismiss if case has not been brought to trial within two years after filing; Mandatory Dismissal not brought to trial within 5 years after filing or process is not served after filing; Default and Default Judgment fails to respond to complaint within 30 days of date of service of process; - must be given notice of application for entry of default; - default can be entered into by clerk without judge if (a) made no response, (b) claim is on K or judgment, (c) claim is for sum certain in money, (d) was not served by publication, (e) provides affidavit stating relevant facts; - otherwise, judge will hold hearing and has discretion to enter judgment; Failure to Plead Facts Constituting Cause of Action = general demurrer; Motion for Summary Judgment burden shifting = if moves for summary judgment, and s cause of action lacks merit, or if moves for summary judgment by showing there is no defense to cause of action, burden shifts to opposing party to demonstrate triable issue of fact exists; Trial, Judgment, and Post-Trial Motions Recovery in limited civil cass, no can recover more than $25K; otherwise amount claimed in complaint does not limit amount that can be recovered, except in default cases; Jury Trial amend VII right to jury trial in civil cases does not apply to states; CA constitution grants right to jury trial with same law/equity split; - if case involves facts underlying cause of action with remedy at law and cause of action with remedy at equity, jury determines facts as to law issues but not equity; equity issues are tried first; - if case states equity cause of action, for injunction against future trespass, and also seeks incidental damages for past trespass, no jury at all because law claim is incidental to equity claim; Number of Jurors there are 12 jurors in civil cases unless parties agree in open court to lesser number;

Type of Class (1) prejudice class treatment necessary to avoid harm either to class members or to party opposing class; (2) injunction sought because class was treated alike by other party, (3) damages common questions predominate over individual questions and class action is superior method to handle dispute; Class Counsel court must appoint class counsel and certify case; Notification for type (3) class, court must notify all reasonably identifiable members; - notice = members can opt out, will be bound if they do not, can enter separate appearance through counsel; - representative pays for notice to members; Settlement or Dismissal requires court approval; in type (3), court must give second chance to opt out; Amount in Controversy representatives, not entire class, meet amount in controversy requirements; Adjudication Pretrial Voluntary Dismissal may be allowed on court order; may have to pay s costs; - may voluntary dismiss without prejudice before serves answer or motion for summary judgment; - a second time, may voluntary dismiss case but with prejudice; Involuntary Dismissal court may order against for failing to prosecute or comply with rules or court order; Default shows clerk that failed to respond within 20 days after being served with process; may respond before default is entered; - default may be entered by clerk if (a) made no response at all, (b) claim itself is for certain amount, (c) gives affidavit of sum owed, and (d) is not minor or incompetent;

Motion to Dismiss 12(b)(6); Motion for Summary Judgment moving party must show (a) no genuine dispute as to material issue of fact and (b) moving party is entitled to judgment as matter of law; Trial, Judgment, and Post-Trial Motions

Jury Trial amend VII right to jury trial in civil cases does apply to fed court; - where case has both legal and equity claims, jury decides issues of fact in legal claim first and then judge decides issues in equitable claim;

Number of Jurors must have at least 6 but no more than 12;

- each party has six preemptory challenges, subject to limitation of use on basis of race, color, religion, sex, national origin, sexual orientation, etc.; Verdict not unanimous, but merely 3/4s of jury; Motion for Directed Verdict i.e. motions for judgment as a matter of law or motion for nonsuit if moves at close of s opening statement or at close of s evidence; Motion for Judgment Notwithstanding the Verdict (JNOV) i.e renewed motion for judgment as a matter of law; party making motion is NOT required to make motion for directed verdict at trial; Motion for New Trial additur allowed where suffers very serious injury and jury awards low amount of damages; court may conclude that figure shocks the conscience; court may give choice of paying greater amount of damages which court sets or go through new trial; Appellate Review Appeal notice of appeal must be filed with trial court within 60 days after service of notice of entry of judgment or 180 days after entry of judgment if no notice is served; Final Judgment Rule party cannot appeal until merits of entire action are resolved; - judgment as to one of several parties is considered final judgment and can be appealed; Interlocutory Review following are appealable (a) grant of motion to quash service of summons, (b) dismissal or stay of case for forum non conveniens, (c) grant of motion for new trial, (d) denial of motion for JNOV, (e) denial of certification of class action, (f) grant, dissolution, or refusal to grant or dissolve injunction, (g) order directing party or attorney to pay sanctions over $5K; Collateral Order appellate court may hear appeal on issue collateral to merits of case that trial court has decided finally, if it directs payment of money or performance of act; Extraordinary Writ if order is not appealable, party may seek writ of mandate or prohibition; - rarely proper for discovery orders (extraordinary, not routine); - party seeking must demonstrate (a) will suffer irreparable harm if writ is not issued, (b) normal route of appeal from final judgment is inadequate, (c) beneficial interest in outcome of writ proceeding; - more likely where issue involved is one of public interest, i.e. conflict in trial court interpretations or novel and important question; - ONLY WAY TO SEEK REVIEW OF DENIAL OF MOTION TO QUASH OR FOR INCONVENIENT FORUM; Issue/Claim Preclusion (Collateral Estoppel) same as FRCP;

Verdict must be unanimous;

Renewed Motion for Judgment as a Matter of Law party making motion must have made motion for judgment as a matter of law prior to the end of the trial; Motion for New Trial additur not allowed;

Appellate Review Appeal notice of appeal must be filed in trial court within 30 days of entry of final judgment; Final Judgment Rule may appeal only from final judgments, i.e. ultimate decision by trial court of merits of entire case; when more than one claim or parties, - trial court may expressly direct entry of final judgment for one or more of them if makes express finding that there is no reason for delay; Interlocutory Appeal allows appeal of nonfinal order if trial judge certifies that it involves controlling issue of law as to which there is substantial ground for difference of opinion and appeals court agrees to hear it; Collateral Order appellate court has discretion to hear ruling on issue if (a) distinct from merits of case, (b) involves important legal question, (c) essentially unreviewable if parties must await final judgment; Extraordinary Writ original proceeding in appeallate court to compel trial judge to make or vacate particular order;