California Civil Procedure for the California Bar Exam



A. Does the Ct Have Authority Over the Parties?

Personal Jurisdiction – Can P sue D in CA?

  1. 2 Step Process

    1. Satisfy a statute (i.e. long arm statute); AND

    2. Satisfy Constitution.

  2. Traditional Assertion of jurisdiction. – Contact b/n D and CA

    1. Domicile in state (place where person maintains his permanent home)

    2. Presence in CA when served (unless procured by fraud).

    3. Consent.

      1. Appearing in action.

      2. By contract

      3. Appointment of agent for service.

      4. Implied consent (i.e. non-resident motorists’ statutes).

  3. Assertion of jxd over non-residents

    1. Test: Does defendant have such minimum contacts with CA such that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice? (Intl Shoe Test)

    2. Must meet:

      1. CA long-arm statute AND

        1. Gives CA courts power over any person or property over which the state can constitutionally exercise jxd

      2. Minimum contacts – some tie w/ D and the forum

        1. Purposeful availment – D voluntarily reached out to forum.

          1. Trying to make $ in the state

          2. Using the roads

          3. Causing some effect in the forum

          4. Interactive website used by state’s residents

        2. Foreseeability – That D would get sued in CA.

      3. Fairness (fair play and substantial justice)

        1. Relatedness between the contact and P’s claimDoes claim arise from D’s contact with CA?

          1. Specific Personal Jurisdiction – D w/limited ties w/the forum can only be sued there for a claim arising from those activities

          2. General Personal Jurisdiction – D w/continuous and systematic ties w/CA may be sued there for any claim that arose anywhere in the world

            1. Domicile

            2. Incorporation

            3. Major Facility

        2. Convenience – OK unless puts D at severe disadvantage – relative wealth of parties not considered

        3. State’s interest – interest in protecting citizens or providing redress for a resident

Remember: My Parents Frequently Forgot to Read Children’s Stories

2. In rem jurisdiction

  1. If dispute related to prop and if property in state→ jurisdiction.

  2. If dispute not related to prop attached→ must satisfy Intl Shoe (above)

3. Quasi in rem jurisdiction – see in rem

4. Notice & Service of Process

  1. Delivery of summons and copy of complaint to D.

  1. Serve process by nonparty at least 18

  1. Types

  1. Personal – papers given to D anywhere in CA

ii) Substituted – Can only use sub service to serve an individual if personal service “cannot w/reasonable diligence” be had – must try personal service FIRST, if unsuccessful then: (1) must be made at D’s usual abode, (2) left w/a competent member of household who is @ least 18, (3) that person must be informed of its contents, and (4) process must ALSO be mailed by 1st class mail, postage prepaid to D (effective 10 days after mailing)

    1. Waiver by mail – mail to D a copy of the complaint and 2 copies of a waiver form, w/a prepaid means of returning the form – if D executes and mails the waiver form to P w/in 30 days, D waives formal service

      1. Works like waiver in fed crt, except this is considered “service” and not “waiver of service”

      2. D has 20 days (instead of 30 days in fed. crt) to return form

      3. Service is deemed complete when the D executes the waiver

    2. Service by Publication – only on affidavit from P’s atty that D cannot be served, after demonstrating reasonable diligence to serve D in another way

    3. Corporations – deliver process to agent for service of process or to an officer, or general mgmt – these ppl may be served personally or process left w/someone apparently in charge at office during office hrs

    4. Service Outside CA – can be made out of state in any manner allowed by CA law OR by mail, postage prepaid, return receipt requested – if by mail, deemed complete in 10 days after mailing

    5. Immunity – NO immunity from personal service if only in state as a witness

    6. Subsequent Documents – as in fed crt, can be delivered or mailed – if mailed, add 5 days to time req. for response (10 days if out-of-state) (Note – fed crts add 3)

B. Does the Ct Have Authority Over the Subject Matter?

Subject Matter Jurisdiction – now that we know that P can sue D in CA – which court?

  1. Superior Court – one in each county, has general subject matter jxd – can hear any civil case, even those that would invoke FQ or diversity

    1. Cannot hear – bk cases, federal securities/antitrust cases, patent cases

  2. Limited Civil Cases – amount of controversy does not exceed 25k (if P demands exactly 25k, it’s limited)

    1. Crt cannot grant a permanent injunction, declaratory judgment or determine title to land

    2. Limited Discovery

    3. Cannot file a special demurrer

    4. No claimant can recover more than 25k – absolute cap

  3. Unlimited Civil Case – these include civil cases in which the P seeks general equitable relief, damages over 25k, or unlimited damages

  4. Small Claims Case – heard in small claims division of Superior Crt

    1. If P is individual, limit is $7,500 or less

    2. If P is an entity, limit is $5,000 or less

  5. Classification and Reclassification

    1. Classification – P initially determines what kind of case it is – considering amount of the demand, or the recovery sought, or the value of the prop, or the amount of the lien in controversy

      1. Does not include atty fees, interest, or costs – claim alone

      2. If P files a limited civil case, he must note the classification in the caption of the complaint – if caption says nothing, it will be considered unlimited

    2. Reclassification – if a case is misclassified or if subsequent events make it clear that the original classification should be changed – the court does NOT lose SMJ

      1. Automatic – if P amends complaint in a way that changes the classification – clerk of crt will reclassify

      2. On Motion – a party can move to reclassify or the crt can reclassify on its own motion

        1. Crt must give notice to all and hold a hearing

        2. Crt does not consider merits of claim

        3. But crt can consider materials beyond the pleadings such as judicial arbitration award and settlement conference statement

        4. Crt can reclassify from unlimited limited when the judge is convinced that:

          1. The case will necessarily result in a verdict of 25k or less or,

          2. More than 25k is virtually unobtainable

        5. Crt can reclassify from limited unlimited when the judge is convinced that:

          1. There is a possibility that the verdict will exceed 25k

    3. Effect of Multiple Claims – the entire case is either limited or unlimited – so no case is mixed

      1. Ex – P asserts 3 unrelated claims against D, one for 12k, one for 8k, and one for 6k – can be filed as an unlimited civil case – P may aggregate claims if he is suing one D (same as fed. rule)

      2. Note – if P’s claim is limited and D asserts cross-claim that exceeds 25k, case will be reclassified as unlimited

C. Is the court the proper place to resolve the dispute?

Venue (which county in CA?)

  1. Local Actions – cases for the recovery of land, or determination of interest in land, or for injury to land are local actions

    1. Lay venue in county where the land lies

  2. Transitory Actions – venue is allowed in any county where any D resides when the case was filed

    1. Contract Cases – additional venue in county where k was entered into or county where it was to be performed

    2. Personal Injury Cases – additional venue in county where the injury occurred

    3. Corporations – venue is allowed in the county where (1) it has its principal place of business, or (2) where it entered or is to perform a contract, or (3) where the breach occurred or liability arises

    4. Unincorporated Business – venue allowed in county of PPB if that is on file with secretary of state, otherwise, where any member or partner resides

    5. Nonresidents of CA – if all Ds are nonresidents, venue is allowed in any county

  3. Transfer of Venue – moving case from Superior Court in one county in CA to Superior Court in another county in CA

    1. If the original venue is improper, D can move to transfer to proper county

      1. Should be made with or before D files his answer demurrer or motion to strike

    2. If the original venue is proper, a crt may, on motion, transfer if:

      1. There is reason to believe impartial trial cannot be had in the original venue, or

      2. Convenience of witnesses and ends of justice would be promoted, or

      3. No judge is qualified to act

    3. If the crt grants the motion, it transfers to a cty on which the parties agree, if they cannot agree then the crt will choose a county

  4. Inconvenient Forum – as in fed crt, Superior Crt may dismiss case if far more convenient and appropriate crt is in a different judicial system (e.g. another state system or foreign country)

    1. By Statute in CA – state crts must dismiss or stay – it must find in the interest of substantial justice an action should be heard in a forum outside CA

    2. Factors: convenience of parties and witnesses, interests of justice, no judge qualified to act, and series of public and private factors

      1. Public Factors – what law applies, what community should be burdened w/jury service, keeping local controversy in the local crt

      2. Private Factors – convenience, where are the witnesses and the evidence located

    3. If the crt grants the motion, it may do so on condition that D waive a PJ or SOL objection in the other forum

  5. Forum and Venue Selection Clauses – CA crts enforce reasonable forum selection clauses that call for the action t o be tried in another state – but venue selection clauses are unenforceable in CA


1) California Conflict of Law Rules – a fed crt in CA sitting in diversity must apply CA conflict of law rules in determining the applicable substantive law – CA resolves conflict of law issues w/following approaches

  1. Tort Actions – Governmental Interest Approach – crt first determines whether the laws of the two states are identical.
    1. If they are not, the crt evaluates whether each state has an interest in the application of its law.
    2. If each state has such an interest, a true conflict exists and the crt then analyzes the comparative impairment to each state’s interest should the law of the other state be applied
  2. Contract Actions – Choice of Law Clauses – if the choice of law clause in a k encompasses all causes of action, the crt must determine whether the clause is enforceable by examining whether the chosen state’s law has a substantial relationship to the parties or their transaction or any other reasonable basis exists for the parties’ choice.
    1. If the clause is enforceable, the crt then assesses whether the chosen state’s law conflicts w/a fundamental CA policy.
    2. If such a conflict exists, the crt must decide whether CA has a materially greater interest than the chosen state in the determination of the specific issue.
    3. If the k does not contain a choice of law clause, or if it is unenforceable, the govt. interest approach generally applies



  1. Terminology – in CA pleadings are called: complaint, answer, demurrer, various motions , and cross-complaints

  2. Fact Pleading – CA uses fact pleading, which requires more detail than federal crt

  3. Frivolous Litigation – 2 state statutes

    1. Sanction Statute – mirrors FRCP 11

      1. Difference – 21 day safe harbor applies not only to motions brought by party, but also when the crt raises the issue on its own

    2. Bad Faith Frivolous Tactics Statute – allows crt to order a party or his atty or both to pay expenses and atty’s fees incurred by another party b/c of bad faith or frivolous tactics in LITIGATION

      1. Frivolous – means something completely w/o merit or for the sole purpose of harassing an opposing party

      2. No safe harbor – can file motion immediately

      3. There must be a motion by a party or the court and an opportunity to be heard

  4. Complaint

    1. Must contain:

      1. Statement of Facts Constituting a Cause of Action, stated in ordinary and concise language

        1. Fact Pleading will require P to allege the ultimate fact on each element of each cause of action

        2. Heightened Pleading – circumstances constituting fraud must be pleaded w/particularity, as must civil conspiracy, tortuous breach of k, unfair business practices, and products liability claims re toxins

      2. Demand for Judgment for relief to which the pleader claims to be entitled

    2. SMJ – P is NOT req. to allege SMJ

    3. Limited Civil Cases – complaint in limited civil case must state it is limited

    4. Amount of Damages – if P seeks damages, must state the amount

      1. Exception – P forbidden from stating damages amount in PI or wrongful death case

      2. Exception – whenever P claims punitive damages, he is forbidden from stating amount

      3. D may request a statement of damages and P must provide w/in 15 days so D is put on notice of how much P wants

    5. Fictitious Defendants – if P is genuinely unaware of the identity of a D, he may name the D as a “Doe” defendant – must also allege that he is unaware of the D’s true identity and must state the cause of action against the Doe defendant

      1. May involve SOL issues

    6. Verified Pleadings – signed under oath by the party, they are rare, but are req. for example, in shareholder derivative suits and for suits against govt. entities – can be treated as affidavits

  5. Defendant’s Response – D must respond in an appropriate way w/in 30 days after service of process is deemed complete (longer than fed)

    1. General Demurrer – can be used to assert failure to state facts sufficient to constitute a cause of action (similar to 12(b)(6) in fed) or that court lacks SMJ

      1. Crt takes the factual allegations as true and limits its assessment to the complaint

      2. These defenses may also be raised in the answer instead

      3. Can also raise in a motion for judgment on the pleadings if raised after D has pleaded and time for demurrer has expired

    2. Special Demurrer– can be used to assert many minor defenses

      1. Crt treats allegations of fact as true and limits assessment to what is in the complaint and maters of judicial notice

      2. Not available in limited civil cases

      3. Defenses that can be raised:

        1. Complaint is uncertain, ambiguous, or unintelligible (like fed motion for a more definite statement)

        2. Lack of legal capacity

        3. Existence of another case b/n the same parties on the same cause of action

        4. Defect or misjoinder of parties

        5. Failure to plead whether a contract is oral or written

        6. Failure to file a “certificate of merit” – req. to sue architects, engineers, and land surveyors – atty must file a certificate that he consulted w/a professional and there is reasonable cause to file a negligence claim

      4. Most of these defenses may be filed in an answer instead

      5. If defenses are not asserted by demurrer or answer they are waived

      6. Terminology – demurrers are either “sustained” or “overruled”

    3. Motion to Quash Service of Summons– special defense motion that must be made before or with a demurrer , answer, or a motion to strike, or else D waives

      1. Defenses:

        1. Lack of PJ

        2. Improper Process

        3. Improper Service of Process

        4. Special Appearances

      2. D CANNOT raise defense simply as an affirmative defense in his answer, an answer is a general appearance and he will effectively waive PJ

      3. If the crt denies the motion to quash, D must plead w/in 15 days

      4. If the crt denies the motion, the only way to get appellate review is to seek a writ of mandate from the Crt of Appeal w/in 10 days of service of the written notice of entry of the order denying

    4. Motion to Dismiss or Stay for Inconvenient Forum– must raise before demurrer or motion to strike or else waived

    5. Motion to Strike– a party can file a motion to strike all or part of any pleading – the crt may strike irrelevant, false, or improper matter

    6. Anti-SLAPP Motion to StrikeStrategic Lawsuits Against Public Participation – suits brought to chill the valid exercise of free speech and petition – when P sues D for an act D took in furtherance of his free speech right or right to petition the govt., D can make an anti-SLAPP motion to strike

      1. D must make a showing that P’s cause of action arises from protected activity

      2. If D makes this showing, burden shifts to P to show the probability of success on the merits

      3. Because so many anti-SLAPP motions were made, the legislature limited availability of the motion – D may only raise if P’s case is truly in the public interest or on behalf of the general public

        1. Motion is inappropriate if P is suing for a public right

      4. A D who wins an anti-SLAPP motion can sue the person who sued her for malicious prosecution – SLAPP-BACK SUIT

    7. Answer– mostly the same as fed

      1. General Denial – short doc in which D simply denies each and every allegation of P’s complaint – permitted if D can do so consistent w/the rules about frivolous litigation

      2. In stating affirmative defenses – must state the ultimate facts sufficient to constitute an affirmative defense (detail req.)

      3. If P filed a verified (under oath) complaint, D must file a verified answer

      4. Answer cannot include a demand for recovery against P, must file a cross-compliant

    8. Timing – No later than 30 days after service of process is deemed complete, D must file an answer or demurrer or one of the motions above – but a motion to strike does not extend the time in which to demur

  6. Claims by Defendant – as in federal crt, D can assert a claim against the P, against a co-D, or against an impleaded TPD – in CA, all three are called CROSS COMPLAINTS – and must be a separate doc from the answer. Person against whom any cross-complaint is asserted must respond w/in 30 days

    1. Cross-Complaint Against Plaintiff – like the fed counterclaim, except it is not part of the answer – must be filed or at the same time as the answer

      1. Compulsory – if it arises from the same transaction or occurrence as P’s cause of action against D

      2. Permissive – if it does NOT arise from the same T/O

    2. Cross-Complaint Against Co-Party – like the federal cross-claim – may be filed anytime before the court has set a trial date

      1. Claim against a co-party, by a defending party

      2. Must arise from the same T/O as the underlying dispute

      3. It is NEVER compulsory – the party may assert it here as a cross-complaint or may sue in a separate case

    3. Cross-Complaint Against Third Party Defendant (TPD) – like federal impleader – may be filed anytime before the crt has set a trial date

      1. NEVER compulsory

      2. Usually for indemnity or contribution

  7. Amending Pleadings

    1. Plaintiff has a right to amend once before D files an answer or demurrer

    2. After demurrer but before hearing on the issue raised by demurrer, any party may also amend once as a matter of course

    3. Any party may seek leave to amend at anytime (same as fed)

    4. Amendment to conform the evidence is available

    5. After sustaining a demurrer or granting a motion to strike, the crt will usually do so with leave to amend – this allows P to try again – if the crt sustains a demurrer or grants a motion to strike without leave to amend P cannot try again

    6. Relation Back – is available to add new claims after the SOL has run, if the new claim relates to the same general facts as originally alleged

      1. Can add new D after the Sol has run if there was a misnomer – P sued the wrong D but the right D knew about it

      2. Fictitious Defendants – relation back allowed if:

        1. Original complaint was filed before the SOL ran and contained charging allegations against the fictitious defendants (“DOE’s”)

        2. P was generally ignorant of the identity of the Doe Ds, and

        3. P plead that ignorance in the original complaint

      3. If the P substitutes the true D w/in 3 yrs of filing, it relates back


1. Joinder of Parties(generally the same as federal)

  1. Permissive Joinder – parties who MAY be joined

    1. Test:

      1. Claims arise out of the same transaction or occurrence, AND

      2. Raise at least one common question.

  2. Compulsory Joinder – Necessary & Indispensible Parties – MUST be joined.

    1. Is Party Necessary? Test (if absentee meets any of these, ct orders joinder):

      1. Without absentee, court cannot afford complete relief among the parties.

      2. Absentee’s interest may be harmed if not joined; or

      3. Absentee claims an interest which subjects a party to multiple obligations.

      4. Joint tortfeasors are NOT necessary parties.

    2. Is Joinder Feasible?

      1. Feasible if there is personal jxd over party – amenable to process

    3. If joinder is NOT feasible court may either proceed without party, or dismiss case calling the absentee “indispensable.”

      1. Factors: Alternative forum available, actual likelihood of prejudice, can the crt shape relief to avoid potential harm?

2. Joinder of Claims– may join any number and type of claims against a D if there is a common question of law or fact

  1. Cross Complaint Against TPDD wants to bring in someone NEW (Third-Party-Defendant) for one reason – the TPD may owe indemnity or contribution to D on the underlying claim (called impleader in federal crt)

    1. After TPD is jointed, P may assert a claim against TPD and vice versa as long as it arises from same T/O.

    2. Any party may file claims against any other party

  2. Intervention – absentee wants to join a pending suit – can come in a P or D. Must make timely application.

    1. Intervention of right – A’s interest may be harmed if not joined, and interest not adequately represented.

    2. Permissive intervention – A has an interest in the matter in litigation, or in the success of either of the parties.

  3. Interpleader – Stakeholder forces all claimants into a single lawsuit to avoid multiple litigation and inconsistency.

  4. The Class Action– in CA, class action will be allowed when the question is one of a common or general interest, of many persons and it is impracticable to bring them all before the crt – one or more may sue or defend for the benefit of all

    1. Requirements

      1. Must Show an Ascertainable Class

      2. Well Defined Community of Interest – to determine crts consider:

        1. Common questions predominate

        2. Representative is adequate

        3. Class action will result in substantial benefit to the parties and crt

    2. Types – only 1 type in CA

    3. Certification – crt must determine at an early practicable time whether to certify the case to proceed as a class action – crt must define the class and the class claims, issues, and defenses and must appt. class counsel

      1. Considerations:

        1. Interest of individual control

        2. Extent and nature of lit elsewhere on the same subject

        3. Desirability of a joint trial, and

        4. Difficulties in managing a class action

    4. Notification – may be given by publication, individual notice not req.

      1. Cost of notice is borne by the representative (same as fed)

    5. Settlement or dismissal – Requires court approval.

    6. All class members who do not opt out are bound by the class judgment, opt out may be allowed by the crt

    7. CA does not req. the crt to appoint class counsel

    8. Determining Amount in Controversy – crt can aggregate the class claims to get over 25k limit



  1. Required disclosuresNO Required Disclosures in CA

  2. Discovery Tools – P must get a crt order to take discovery from D w/in 10 days after D was served w/process (w/in 20 days to take D’s deposition

    1. Types

      1. Deposition – deponent gives sworn oral answers to questions by counsel – May be used for parties or nonparties – can only depose a person once unless crt orders otherwise

        1. No presumptive time limit on depo (fed limits to 7 hrs)

        2. No presumptive limit on the number of depos to be taken in the case (fed limits to 10 total)

      2. Interrogatories – questions propounded in writing to another party to be answered in writing under oath

        1. May only be sent to parties.

        2. Party may respond w/ignorance

        3. CA has form interrogatories approved by Judicial Council

          1. No limit to the number of form interrogatories that can be served

        4. If the party wishes to draft specific interrogatories may NOT contain subparts

        5. Maximum number allowed in an unlimited civil case is 35 – may include more w/declaration supporting need for more

          1. Responding party may seek a protective order

      3. Request to produce (inspection demand) – May be sent to parties or nonparties requesting that they make available for review and copying various documents or things including ESI or permit entry upon designated prop for inspection, measuring, etc.

        1. If 3p – Use subpoena duces tecum

        2. No limit on how many can be served w/o crt permission in an unlimited civil case

        3. Business records may be subpoenaed w/o taking a depo

      4. Physical or mental examination – Only available through court order.

        1. Must show health is in actual controversy and “good cause”

        2. Party seeking chooses the suitably licensed person to perform the exam

        3. Person examined may obtain copy of report by asking for it, but will waive his patient privilege

        4. In CA, D has a right to demand one physical exam in PI cases, w/o crt order

          1. Atty has a right to attend a physical exam

          2. If mental, atty can attend only if crt order allowing it

      5. Request for admissions – Request to party to admit truth of any discoverable matter.

        1. Response is to admit or deny

        2. Failure to deny is tantamount to admission

        3. Max # of requests is 35 (same as fed)

  3. Discovery in Limited Civil Cases– strict limits on the use of discovery

    1. Can only take ONE depo

    2. Can only serve combined total of 35 interrogatories, inspection demands, and requests for admissions

    3. May be able get additional discovery w/crt order

  4. Supplemental Discovery – in unlimited cases only – unlike federal, there is NO DUTY to supplement discovery responses, as long as the info given was accurate and complete when given

    1. Instead the requesting party can propound a supplemental interrogatory to elicit later-acquired info bearing on answers previously made

    2. Can also propound a supplemental demand for inspection, which demands inspection of later acquired or later discovered docs

    3. A party may only propound a supplemental interrogatory or request for production twice before the trial date is set and only once after that

  5. Scope of Discovery– can discover anything relevant to the subject matter involved in the pending action – slightly broader than federal (“relevant to a claim or defense”)

    1. RelevantReasonably calculated to lead to discoverable evidence.

      1. Broader than “admissible” – may be able to discover hearsay, even though it would not be admissible at trial

      2. Privileged matter is not discoverable.

    2. Privacy – CA Const. recognizes the right to privacy, which can be claimed to limit discovery

      1. Crt will balance the need for information against need for privacy

    3. Attorney work-product/Trial Prep Material – Material prepared in anticipation of litigation generally not discoverable.

      1. Factual informationcan only discover if crt determines that denial of discovery will unfairly prejudice the party seeking discovery or will result in injustice (stricter standard than fed)

      2. Opinion, conclusions, and theories are absolutely protected.

      3. MUST be generated by atty – unlike fed where it can be made by party or rep of party

    4. Experts – any party may request the simultaneous exchange of expert witness information – then each party must exchange a list of experts to be called at trial, declare the nature and substance of testimony, and the expert’s qualifications – can also demand reports by the expert

      1. If a party fails to exchange this info upon request, the crt may exclude its expert from testifying

      2. CANNOT discover info on consulting experts who will not testify at trial

  6. Enforcement of discovery rules

    1. Parties generally must meet and confer to work out problems before seeking crt orders – party failing to do so is subject to a monetary sanction

    2. CA law prohibits “misuse” of discovery and a crt may sanction a party including a party’s attorney – must be given notice and an opp. to be heard

    3. Sanctions include: (1) monetary sanctions, (2) establishment order, (3) refusal to allow party to support its position w/evidence at trial, (4) striking pleadings, (5) entering default judgment against D or dismissing P’s cause of action

    4. Party seeking sanctions must indicate type of sanction sought

    5. A party may seek a protective order to protect against unwarranted annoyance, embarrassment, oppression, burden, or expense

    6. A party can object that ESI is not reasonably accessible b/c of undue burden or expense, but must identify the categories of sources that are not accessible


Termination of case without trial

  1. Dismissal

    1. Voluntary dismissal – P can move to dismiss any time before trial starts – the decisions is for the crt to make and had discretion to dismiss w/or w/o prej

      1. If P moves for a voluntary dismissal after trial starts, it may be granted only w/prej, unless the parties stipulate otherwise or the crt finds good cause to dismiss w/prejudice

    2. Involuntary – on D’s motion, crt may dismiss for P’s failure to comply w/rules of court or court order

      1. CA crts have discretion to dismiss if the case has not been brought to trial w/in 2 yrs of filing

      2. Mandatory Dismissal

        1. Not brought to trial w/in 5 yrs of filing

        2. Process is not served w/in 3 years after filing

  2. Default and default judgment.

    1. Default – if D fails to appear or respond, D must be given notice of the application for entry of default, and P must show clerk that D has failed to respond w/in 30 days after being served w/process

    2. Default judgment

      1. Clerk can enter DJ w/o crt if:

        1. D made no response at all,

        2. The claim is on a contract or judgment,

        3. The claim is for a sum certain in money,

        4. D was not served by publication, AND

        5. P provides an affidavit stating relevant facts

      2. If any of those are not true, the claimant must go to the crt itself and the judge will hold a hearing

      3. DJ cannot exceed what the claimant demanded in his complaint or be a different kind of relief

    3. Relief from default

      1. D may move to set aside DJ and for leave to defend the action if service of process did not result in actual notice of the suit to D w/in the time to respond – notice of motion must be accompanied by an affidavit attesting the lack of notice was not the result of trying to avoid notice or inexcusable neglect

        1. Motion must be filed w/in reasonable time, not to exceed the earlier of: 6 months after service of written notice of default or default judgment or 2 yrs after entry of DJ

  3. Dismissal for Failure to Plead Facts Constituting A Cause of Action (same as Rule 12(b)(6) in federal) – Raised by General Demurrer in CA

    1. Take all allegations in complaint as true and decide if P should still win

    2. Tests only the sufficiency of P’s allegations – crt ignores legal conclusions and looks at allegations of fact

    3. Ct does NOT look to evidence, only sufficiency of P’s allegations

  4. Motion for Summary Judgment

    1. Test: Moving party must show that there is no dispute on a material issue of fact, and that he is entitled to judgment as a matter of law.

    2. Court looks at evidence in a light most favorable to nonmoving party (to determine whether there is an issue of fact)

    3. Purpose is to dispose of cases not fit for trial – trial is only appropriate to resolve disputes of fact

    4. Evidence must be admissible (i.e. Not hearsay) – parties usually submit affidavits for crt to consider as evidence

      1. Pleadings are not evidence (unless verified under oath)

    5. In CA, moving party must file and serve a separate statement of material facts he claims to be undisputed w/supporting evidence for each fact

      1. Opposing party must respond by indicating the facts he believe to be in dispute and supporting evidence for each fact, he does not the court may grant MSJ

    6. Timing – Moving party must serve all papers at least 75 days before the hearing on the motion, opposition papers must be filed at least 14 days before the hearing, reply papers by the moving party must be filed no more than 5 days before the hearing

  5. Case Management and ADR

    1. Case Management Conference – crt must hold w/in 180 days after filing of complaint – crt reviews service, pleadings, discovery issues, appropriateness of ADR, settlement, trial date, etc.

      1. Before conference, parties must meet and confer and file a “Case Management Statement” addressing such issues

    2. Fast Track” – crt reviews each case to determine suitability for case management program and assigns a time goal for disposition

      1. Crt will actively manage civil cases by imposing short deadlines, may impose sanctions on party who fails to comply w/fast track rules or crt orders

    3. ADR – each county’s Superior Crt has an ADR program

      1. In larger counties, unlimited civil cases are submitted to judicial arbitration if the judge is of the opinion that P will ultimately obtain 50k or less

      2. Rules of evidence do not apply

      3. Parties have right to discovery

      4. Judicial Arbitrator renders a decision that becomes a judgment unless a party demands a trial de novo

        1. May be liable for costs if party subsequently loses at trial

      5. Contractual Arbitration – parties agree in k to arbitrate dispute – such contracts are valid if not the product of illegality or unconscionability

        1. Usually no right to discovery unless parties agree

        2. Arbitrator’s decision is final


Jury Trial

  1. Right to Jury Trial – California Const. grants right to a jury trial for actions at law that are identical or similar to those that existed at common law for which a jury was req. at the time the CA Const. was adopted – along same law/equity split as the 7th Amendment

    1. Unlike federal crt, equity cause of actions are heard FIRST

  2. Demand – must demand in writing no later than 5 days after notice of the setting of trial

  3. Jury selection – Unlimited strikes for cause, 6 peremptory strikes per side – cannot be based on race, color, religion, sex, national origin, sexual orientation, or similar grounds – broader than federal

  4. Number Required – need at least 12 jurors in CA civil cases unless the parties agree to a lesser number – alternate jurors are allowed, if no alternates are available, trial may proceed unless party objects

  5. Verdictmust be ¾ of jurors (not unanimous like fed crt)

  6. If there is a jury or judgment, can it be disregarded?

    1. Motion for Directed Verdict – (called JMOL in fed) exceptional order – takes case away from jury

      1. Made only at the close of evidence

      2. StandardReasonable people could not disagree as to the result

        1. Court will take evidence in the light most favorable to the party opposing the motion.

      3. If D moves for this at the close of P’s opening statement or at the close of P’s evidence at trial it is called a Motion for Nonsuit

    2. Motion for Judgment Notwithstanding the Verdict (JNOV) – same as Motion for Directed Verdict but comes up after trial (called RJMOL in fed)

      1. Situation – judge did not grant motion for JMOL, and the case went to the jury, jury returns a verdict for one party, and the crt enters judgment on the basis of the verdict – now the losing party files a renewed JMOL

      2. Losing party may file; if granted = entry of judgment for him.

      3. StandardReasonable people could not disagree as to the result

      4. Timing – must file notice of intention to move either before entry of judgment or the earlier of: 15 days of mailing or service of notice of entry of judgment or 180 days after entry of judgment

      5. Party making JNOV is NOT required to make Motion for Directed Verdict (CA Distinction from RJMOL)

    3. Motion for New Trial – judgment entered but errors require new trial – would result in a “miscarriage of justice”

      1. Timing – must file notice of intention to move either before entry of judgment or the earlier of: 15 days of mailing or service of notice of entry of judgment or 180 days after entry of judgment

      2. Grounds include: prejudicial error that makes judgment unfair (wrong jury instruction), new evidence, prejudicial misconduct of party/attorney/3rd party/juror, judgment against weight of the evidence, inadequate or excessive verdict (damage figure “shocks the conscience”)

      3. Less drastic than grant of JNOV

      4. Remittitur – crt gives P choice of accepting amount less than the jury verdict or submitting to a new trial

      5. Additur – crt finds low damages figure shocks the conscience – can order new trial or offer additur – gives D a choice to pay a greater amount in damages which the crt sets or go through new trial (Note: only CA allows, it is unconst in federal crt b/c it violates the 7th Amendment)

    4. Motion to Set Aside Judgment

      1. Grounds – mistake, inadvertence, surprise, or excusable neglect

      2. Motion must include an affidavit of fault by the party or atty demonstrating the mistake, etc.

      3. Timing – reasonable time, not to exceed 6 months after entry of judgment


  1. Timing – generally notice of appeal must be filed IN THE TRIAL CRT within:

    1. 60 days after mailing or service of the notice of entry of judgment, or

    2. 180 days after entry of judgment if no notice is served

  2. Procedure

    1. In an unlimited civil case, appeal goes from Superior Crt to Crt of Appeal

    2. In limited civil cases and small claims matters are appealed to the appellate department of the Superior Court

  3. Final Judgment Rule – judgment must be final – ultimate decision by the trial crt of the merits of the entire case

    1. Ask: after making this order, does trial judge have anything left to do on the merits of the case? If yes, not appealable.

    2. Must file notice of appeal IN TRIAL CRT w/in 60 days after service of the notice of entry of judgment

  4. Interlocutory Appeals (Exceptions) – may be appealable even though NOT final judgment

    1. By Statute:

      1. Order granting motion to quash service of summons (writ)

      2. Order granting a dismissal or stay of a case for forum non conveniens

      3. Order granting a new trial

      4. Order denying a motion for JNOV

      5. Order denying (not granting) certification of entire class action

      6. Order granting, dissolving, or refusing to grant or dissolve an injunction

      7. Order directing party or attorney to pay monetary sanctions over 5k

    2. Collateral Order Rule – Court of Appeal may hear appeal on (1) an issue collateral to the merits of the case, (2) that the trial crt has decided finally, (3) if it directs payment of money or performance of an act

    3. Extraordinary Writ – if an order is not otherwise appealable, the aggrieved party may seek a writ of mandate to compel a lower crt to do something the law requires or prohibition to stop a lower court from doing something the law does not allow

      1. Technically not an appeal, it is an independent proceeding in the Court of Appeal

      2. Issued to an inferior crt

      3. Extraordinary, not routine

      4. Party seeking writ must demonstrate:

        1. Irreparable harm

        2. Normal route of appeal final judgment is inadequate

        3. Beneficial interest in the outcome of the writ proceeding

      5. Extraordinary Writ is the ONLY way to seek review of a denial for a motion to quash service of summons


  1. In General – does judgment already entered in Case 1 preclude litigation of any matters in Case 2

    1. If Case 2 is in a different crt system, apply preclusion law from system that decided Case 1

    2. In CA, If judgment in Case 1 has been appealed (or the time for appealing has not yet expired) judgment IS NOT entitled to claim/issue preclusion effect (federal rule allows)

    3. Affirmative Defenses – D must raise them in his answer

  2. ResJudicata (Claim Preclusion) – P may only sue on a cause of action or claim once – only one chance to vindicate all rights to relief

    1. Where there is a final judgment on the merits, res judicata precludes relitigating the cause of action/claim.

    2. Requires

      1. Both cases must be brought by the same claimant against the same defendant (not just the same parties, must be same P suing the same D)

      2. Case 1 must have ended with a valid final judgmenton the merits.

        1. GR: any judgment except dismissals based on jxd, venue or indispensable parties = “on the merits” unless ct said otherwise when it entered judgment.

        2. Default Judgment IS on the merits

        3. Judgment based upon discovery abuse IS on the merits

      3. Both must involve the same claim.

        1. Fed defines claim as any right to relief arising from same T/O;

      4. Claim was actually litigated or could have been litigated

    3. Exception: If some personal injury after recovery for property damage then may bring claim.

    4. California Primary Rights Doctrine – a cause of action is defined as an invasion of a single primary right – thus a plaintiff injured by D in an accident may sue the D in one action for personal injury and in a separate action for property damage, as each injury would be considered an invasion of a different primary right to be free from harm

      1. Compare: Federal Modern Transaction Approach – requires P to assert all claims arising out of the same transaction or occurrence that is the subject of P’s claim in the first Case (i.e. P cannot bring up new claim in Case 2 that he should have raised in case 1 relating to the same incident)

  3. Collateral Estoppel (Issue Preclusion)

    1. Issues of fact actually litigated and essential to the judgment in a first action are conclusive in a subsequent, although different, action between the plaintiff and the defendant or their privies

    2. Precludes relitigation of a particular issue previously litigated and determined – issue is deemed established in Case 2 so it cannot be re-litigated (narrower)

    3. Requires

      1. Case 1 ended in a valid final judgment on the merits.

      2. The same issue was actually litigated and determined in Case 1.

      3. The issue was essential to the judgment in Case 1 – w/o this issue, the judgment in Case 1 would have been different

      4. May only be asserted against one who was a party to Case 1 (or represented by a party). Due Process requirement.

    4. By whom can it be asserted? Mutuality v. Nonmutual.

      1. Traditional View (Mutuality) – may be asserted only by one who was a party to Case 1

      2. Modern Trend (Nonmutual) – is to allow one who was not a party in Case 1 to argue collateral estoppel.

        1. Nonmutual defensive collateral estoppel.

          1. P sues D1 and loses. P sues D2, who can argue nonmutual collateral estoppel.

          2. Asserted by D who was not a party in Case 1, but is now a D in Case 2

        2. Nonmutual offensive collateral estoppel

          1. Asserted by one who was not a party in Case 1 and is the Plaintiff in Case 2)

          2. P sues D1 and D1 counterclaims and wins. D2 then argues collateral estoppel against P. Or, P sues D1 and loses b/c contrib. negligent. D2 (new P) sues former P, arguing CE as to neg.

          3. Most courts do not allow.

          4. However, trend to allow if fair; Factors to consider if fair:.

            1. Full opportunity to litigate the first case.

            2. Whether multiple litigation was foreseeable.

            3. Whether person could have been joined in first case.

            4. There are no inconsistent judgments on the record.

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