California Civil Procedure Outline Law School



Crowley v. Kattleman: The wife files a claim to contest the will of her late husband (prepared by an atty friend, who was also the beneficiary.) Her claim is based on six different grounds. The atty wins and then files a malicious prosecution action saying that all the grounds except undue influence were meritless.

You don’t have to establish that all the grounds lacked probable cause to bring a malicious prosecution action. Even when there is one good ground, the defendant still has to defend against all of them. Litigation offers compensatory and other damages that you don’t get through statute (like § 128.5 and §128.7). Balance tips in favor of the policy of making whole the individuals harmed by such abuse of our courts.

Malicious P requires:

  1. The plaintiff of the MP action won the first suit (i.e. they successfully defended the first suit),

  2. Malice/bad faith on the part of the defendant to the MP action,

  3. No probable cause for some ground/theory of liability in the case.

Probable cause is a question of law, and malice is a question of fact (i.e. it’s easy to get past summary judgment because you have factual issues in the CoA).

Remember—it is not okay to have just one cause of action that is supported by probable cause! If the plaintiff can establish that you acted with malice, and one of your CoA’s lacked probable cause, then there is a malicious P action. It doesn’t matter that the plaintiff may essentially allege violation of one primary right, and have several theories to support that—so long as one of the theories is meritless, and there is a showing of malice, then there is a Malicious P action.

This approach has created more Malicious P actions.

2 main policies are served by the remedy of imposing sanctions for frivolous or delaying conduct in the original action

  • Encourages free access to the courts for the settlement of disputes

  • It avoids burdening the judicial system by additional litigation.


Missing the SOL is the number one cause of atty malpractice suits!

For proper use of the SOL, you need to know when the cause of action accrues, when your claim is considered commenced, if there is any tolling, and how to use the Does and relation back.

Most SOLs are in the Code of Civil Procedure—however, there are others hidden in the other codes. Every theory of liability has its on SOL; you can have multiple theories with different SOLS, or a single theory with different SOLs that attach to it. When you have statutory SOL overlap, then go with the SOL that is most recent and most specific.

Ways to Change the SOL:

Contract: The SOL can be contracted around. CA case law says that you can actually shorten the SOL so long as the shortened period is reasonable and one which manifests no undue advantage/unfairness.

Legislature: The legislature can amend an SOL and it will be retroactive, so long as the remaining SOL is still a reasonable amount of time for the person to bring an action.

Suppose that a there is a one year SOL. Now the legislature amends the SOL to two years—the plaintiff now has another year to bring the action even though it used to be timebarred! Same as if there is a two year SOL and the legislature shortens it to one year—so long as you still have a reasonable amount of time to bring your action, you are subject to the new SOL. Suppose that you file an action and it is dismissed on demurrer because of the SOL, and then the SOL is extended by the legislature. If you’re in appeal, then the extended version will apply! However, if the case is over then you’re out of luck because of res judicata.


Accrual is when the SOL first begins.

The SOL starts to run when the cause of action accrues. Generally, the CoA will accrue when the injury occurs because there will instantaneously be: 1) discovery of injury, 2) knowledge of cause, and 3) suspicion or knowledge of wrongdoing. However, sometimes these won’t all occur together—they all need to be present in order for the CoA to accrue. When they come separately, then you can analyze accrual with the delayed discovery rule.

However, using the delayed discovery rule, the CoA does not begin to accrue exactly when the injury occurs.

Jolly v. Eli Lilly: The plaintiff here was injured in 1972. She couldn’t find out who manufactured the DES that she took. She filed in 1981.

The Court here says that for the discovery rule, the CoA accrues when the plaintiff is aware of the injury and suspects or should have suspected that it was caused by wrongdoing. It breaks down like this:

Discovery of Injury + Knowledge of Cause + Suspicion of Wrongdoing = Accrual under the Delayed Discovery Rule.

In this case, the plaintiff knew of her injury in 1972, and she knew that it was caused by DES. In 1972. But she didn’t suspect that there was wrongdoing until 1978—THIS is the point in which the cause of action accrues for her. So long as these elements of the delayed discovery rule are met, the cause of action will accrue, and the SOL will start to run EVEN IF THE PLAINTIFF DOESN’T KNOW WHO TO SUE. Everything came together in 1978, but the plaintiff did not know who manufactured the drug her mother took and had no idea who to file an action against—it doesn’t matter. The SOL still runs.

Remember: “Suspicion of wrongdoing” is not evaluated in the legal sense—it is the lay understanding of when people would believe that there was a wrong done. Also, “suspicion of wrongdoing” as the kick off for accrual creates a question of fact—you need to depose the plaintiff to find out when they suspected. Although, both a subjective and objective suspicion of wrongdoing will commence the SOL—see pg. 184.

There is another aspect of this case—while plaintiff’s SOL was running, a novel approach to DES cases created a new legal solution for people in the plaintiff’s situation. The Sindell case, which created a market share approach to DES liability, didn’t happen until after 1981—i.e. until after plaintiff’s SOL had run out under delayed discovery. But Sindell did not create a new CoA with a new SOL; Sindell only represented the legal significance of facts that were already known. There was no new tort created by Sindell, and the SOL will not be tolled while you get the right legal advice.

It’s different if the plaintiff discovers a different type of injury:

Old Precedent—Bristol Meyers: In 1982 the plaintiff thought her implants were leaking. In 1984 this was confirmed. In 1990 the plaintiff was suspicious that the implants themselves were defective. In 1991 she brought suit against the manufacturers. There is knowledge of injury (leaking implants) and she was aware of the cause (doctor/the woman who hit her) and she was suspicious of wrongdoing (obvious). The court says that thus the CoA accrued and the SOL began running with respect to all defendants.


Fox v. Ethicon: Overrules this. The plaintiff here had gastric bypass. She had injury, and she filed a malpractice suit against the doctor as the SOL was running out. [She filed a § 364 notice and got an additional 90 days on the SOL, so she actually filed the complaint after the normal SOL would have run; this thus prevented her from adding in another defendant as a Doe, because the new addition would only relate back to when the complaint was filed, which was after the actual SOL.]

Then she finds through discovery about faulty equipment. The court says that her SOL has not run out on this new defendant. If an investigation discloses only one kind of wrongdoing, then the accrual is postponed an a new type of wrongdoing. Wholly different tortious conduct (product defect as opposed to malpractice) means that there are two accrual points. You do the delayed discovery analysis for the doctor (one accrual) and for the manufacturer (another accrual.)

This is different from Jolly! Jolly knew of (and this was correct) only one type of wrongdoing—a defective drug. She didn’t know who to sue, but that doesn’t stop accrual. In Fox the plaintiff was aware of one type of wrongdoing, files and action, and then becomes aware of a second type of wrongdoing; this is what creates the second accrual.

Note that this is the kind of situation that we have Doe Defendant Practice for—the plaintiff in Fox could have filed within the regular SOL with Does in the complaint, and then amended to put the manufacturer in as one of the Does. NOTE! When the plaintiff doesn’t use Doe you still have a way out of missing the SOL—if you discover a second wrongdoing, you can get a second accrual.


Delayed Discovery and Sex Abuse:

Evans v. Eckelman: In a sex abuse case after the SOL had expired the plaintiff argues that she wasn’t aware of the injury done by the abuse, and wasn’t aware that the acts she experienced were wrongful because of a confidential relationship between her and the molester. The court accepts this as a valid basis for using delayed discovery.

Note that the legislature has now amended the SOLs of sex abuse statutes—the SOL is eight years after reaching the age of majority, or three years from when the plaintiff discovers or should have discovered the injury (whichever is later); note that the three years is essentially a codified discovery rule. Under this, the CoA could accrue well into adulthood. Pg. 116.

Contracting Around the Discovery Rule:

Moreno v. Sanchez: The home inspector K limited the SOL from four years to one year. The K also did away with the discovery rule. The court says that limiting the time is okay, but not getting rid of the discovery rule!

Right now, this is the controlling case on this issue. It’s possible that in the future you could get a case where the court approves of the parties contracting around the discovery rule so long as they kept the long SOL, but as of right now this issue hasn’t been addressed. Remember that so far as Moreno is concerned you can contractually change the length of the SOL, but not when the SOL actually accrues.

The Legislature Has Weighed in on the Discovery Rule:

MedMal: The SOL is three years from injury or one year after the discovery of injury, whichever is first. So this effectively puts a cap on medmal of 1 to 3 years.

LegalMal: The SOL is four years from injury or one year from the date of discovery, whichever is first. Again, this puts a cap on legalmal from 1 to 4 years. Remember that there are statutory tolling provisions for both medmal and legalmal.

However, the legislature can be more expansive with the discovery rule.

Asbestos: The SOL is one year and runs when the plaintiff discovers that they have a disability from exposure to asbestos. You can be injured before this, but the CoA won’t accrue until you have an actual disability, so it potentially goes on forever. You can’t contract around this SOL because it is a matter of public policy.

Sex Abuse: See above; these also extend the discovery rule.


What Injury Sets off the “Injury” Part of Accrual?:

Double Injury: Sometimes you may have a small injury followed by a huge one. What degree of injury sets off the SOL? The injury can’t be nominal—it must be actual and appreciable. As soon as you have an actual and appreciable injury, the SOL starts to run on any and all other injuries that are part of the same wrongdoing. In some cases there may be double injury—you have a small injury (temporary hospitalization) followed by a larger one (cancer); your SOL starts to run with the first appreciable injury, and it runs on all the subsequent injuries that come out of that wrongdoing.


Tolling is when the SOL has already begun (i.e. the CoA has already accrued under regular or delayed discovery) but it is paused. Remember that there is statutory and common law tolling doctrines.

Generally, a defendant pleads the SOL as a defense. If the plaintiff is using something like delayed discovery, estoppel, or tolling, then the plaintiff should plead this in the complaint.

Statutory Tolling:

CCP § 352—Tolling while the defendant is disabled, which in this context means that they are under the age of majority, insane, or in prison. The SOL is tolled so long as the disability is present, but the disability must have been present at the time that the CoA accrued.

CCP § 351—Tolling while the defendant is out of state. This is an old statute from when we didn’t have long arm statutes that allowed that allowed you to get jurisdiction over someone that wasn’t in CA; however, § 351 is still in place.

Know that some applications of § 351 violate the commerce clause. If a resident defendant is out of state for commerce, the § 351 doesn’t apply. If you are out of state for something like school or vacation, then it does apply (this is the Filet-Mignon case.)

MedMal—Tolling for fraud, concealment, or presence of foreign articles. Remember that the SOL is three years from the date of injury—this statute is the only way to toll that part. However, the SOL is also one year from discovery—you can use other methods to toll this, but remember, three years is still the max.

LegalMal—Tolled while the atty represents the plaintiff, while the plaintiff is legally or physically disabled, while the plaintiff hasn’t had “actual injury.”

What is “actual injury”? Jordache—“actual injury” is any loss or injury that is cognizable as damages. Uncertainty of damages or uncertainty of the amount of damages doesn’t matter—if you have a loss that you could get damages for then there is actual injury. It is a question of fact—consider that anytime you’re in court you could say that you’re incurring actual damages in the form of atty fees.

Military—Tolling while a party is in military.

Supplemental Jurisdiction—There are saving statutes during which you can refile your action in state court if supplemental jurisdiction by the federal court has been denied. The federal saving statute tolls any SOL for thirty days after a federal court has decided to not exercise supplemental jurisdiction. This does not preempt equitable tolling—so, you are guaranteed by statute 30 days to refile in state court, but even after this has elapsed the court can use Addison principles to toll the SOL.

Common Law Tolling:

Garabedian v. Skochko: In 1988 the plaintiff files a federal suit against the United States and Skochko. The federal court declines to exercise jurisdiction over Skochko. The plaintiff then refiles against Skochko in state court.

There are different kinds of court made tolling doctrines:

Several Remedies Tolling—where the plaintiff has more than one possible remedy and chooses one over the other in good faith, then the SOL is tolled during that time. In Elkins, the plaintiff filed a workers comp claim as an employee, was denied, and then filed a judicial action as an independent contractor. The SOL was tolled during this time. The idea is that you don’t want the plaintiff to be filing in both places at once—it’s wasteful.

But it doesn’t apply here, because it requires that the plaintiff be aware of the two options and make a conscious choice—here, the plaintiff filed a HUD claim first and wasn’t aware of the two remedies (i.e. he didn’t consciously choose HUD claim over judicial action) and therefore he didn’t make a requisite choice.

Addison-Equitable Tolling—if the plaintiff believes they have a state and federal CoAs, and in good faith asks for federal supplemental jurisdiction of the state claim, then the SOL is tolled until the federal court dismisses the case. But there are three components:

  1. The defendant must get notice of the claim before the SOL runs; this means formalnoticethat is sufficient to get the defendant to protect his interests through investigation, etc.

  2. There must be lack of prejudice to the defendant,

  3. The plaintiff must act reasonably and in good faith.

Here, the plaintiff was banking on his HUD claim being formal notice to the defendant—while it was notice, and the defendant probably knew that they would have to defend, it was not formal enough to satisfy this aspect for tolling.

More on Addison-Equitable Tolling:

Prudential v. Superior Court: Twenty months went by while the insurance company considered the claim. The plaintiffs file suit and the defendant raises the one year SOL.

This is a good example for Addison-Equitable Tolling. We want the plaintiffs to settle with their insurance company; the SOL is tolled for the entire time that the company is considering the claim. Note that it satisfies all the requirements of Addison—notice of claim to defendant, lack of prejudice, and plaintiff acts reasonably and in good faith by not taking judicial action within normal SOL.

In this case the SOL hadn’t even started to run when the plaintiffs filed action because the company hadn’t issued an official rejection.

SO: Addison-Equitable Tolling works where plaintiff asks federal court to exercise supplemental jurisdiction over state law claim and is denied (must still satisfy the other provisions); and, at least with insurance companies, so long as the claim is being considered.


Equitable Estoppel Tolling

Muraoka v. Budget: The plaintiff has a personal injury action against the defendant; the defendant says, before a complaint is filed, that they want to settle. The defendant takes affirmative actions towards settlement, but never follows through before the SOL runs out. The defendant is estopped from raising the SOL as a defense. Note that you don’t need fraud or intent to deceive, you just need affirmative conduct on the part of the defendant that induces the plaintiff into not filing a timely action. Here, affirmative conduct is assuring the plaintiff that you will settle and taking steps to get there.

Bernson v. Browning-Ferris: The plaintiff wants to file a liable action but doesn’t know who made the report against him. In 1990 the plaintiff asks the company and they tell him that they didn’t do it. He files action in 1991.

Remember that the SOL accrues when there is injury (defamation) and the cause is known (the report) and there is suspicion of wrongdoing (i.e. that the report was a lie.) The CoA accrues and the SOL begins to run even though the defendant doesn’t know who to sue.

Here, there is tolling not because the plaintiff didn’t know who to sue, but because the defendant engaged in fraudulent concealment—the defendant is estopped form using the SOL when they actively hid their identity. This type of tolling works only where the plaintiff couldn’t reasonably ascertain the identity of the wrongdoer. ALSO, it requires that reasonable diligence wouldn’t reveal the identity of a single defendant—if you know of a single defendant, like Jolly did, then you need to bring action against them and file Doe claims against any others.

So, you can use estoppel tolling where all the defendants (whether one or several) have concealed their identity so that reasonable diligence on the part of the plaintiff would not reveal the defendants (the whole idea of running the SOL even when you don’t know the identity of the defendant is the idea that you could find the defendant out if you tried hard enough). Remember—if you know one defendant then you have to file against them and use Doe against the others even if the others are hiding.

Remember—you need to allege this estoppel tolling in your complaint; this will get you past a demurrer, but estoppel is ultimately a question of fact, and the defendant can still challenge it as the case moves forward.

Jolly v. Eli Lilly: The plaintiff claims that her individual claim was tolled until Sindell was either decided or the class was certified. However, the class in Sindell was seeking relief in the form of warnings, etc. This kind of action doesn’t put the defendant on notice that each individual class member has an injury claim.

Under American Pipe, the SOL for an individual claim will be tolled while a class action is awaiting certification—the idea is that you don’t to congest the courts with claims, and the defendant is on notice of the claims against them anyway.

It is SO RARE for personal injuries to get certified as class actions that plaintiffs should NEVER rely on their certification for tolling purposes.


Relation back is when the SOL has accrued and expired—you filed a complaint within the SOL, and now you want to add something to your complaint that would otherwise be barred by the SOL if you were to file it in a new complaint. Relation back principles create criteria that your amendments have to meet before they will be allowed to be added in under the old SOL.

In CA the relation back doctrine is much more constrained than in federal court (in federal court, anything that is part of the same transaction/occurrence can relate back). In CA there will only be relation back if the amendment rests on the sameset of facts, same accident, and same injury as the original complaint. If the original complaint is for personal injury, and the amendment is for property then it will not relate back (different injury). Likewise, if the original complaint is for negligence and the amendment is for products liability that will relate back.

Hony: The plaintiff files action in 1998 while he is still working for the defendant. In April of 1988 he was fired. In October of 1990 he amended his complaint to include a wrongful discharge claim. Does it relate back for purposes of the SOL? The court held that the amendment related to the samefacts and the sameinjuries.

BUT Lee: This case was almost the exact same facts, but the court didn’t let the amendment relate back. The court said that it was two different injuries—wrongful demotion v. wrongful termination.

SO, on this issue there is a split in the CA courts of appeal!!

Sydney v. Superior Court: The accident was in November 1985. The plaintiff’s complaint was filed February of 1986, for personal injury and property damage. In April of 1986, the defendant filed a cross complaint (in federal terms a “counterclaim”) for property damage. In April of 1987, the defendant wants to amend and add personal injury claims. There is a one year SOL for personal injury, and a two year SOL for property damage. Does it relate back?

When the plaintiff files a complaint, this tolls the SOL on ALL of the defendant’s causes of action so long as they weren’t barred at the time that the plaintiff filed the complaint. The defendant can amend his original cross claim as much as he wants, because the plaintiff’s action tolls his CoAs.

In the original CC, the defendant impleaded a third party for property damage. Is this alright? This is okay only because the SOL for property damage hadn’t run. The plaintiff’s complaint will never toll the defendant’s SOL for causes of action against third parties. Impleader is like a new lawsuit/complaint, and it must follow regular SOL/relation back rules.

So, for original complaints—either by a plaintiff against a defendant, or a defendant impleading a third party, amendments must pertain to the same facts, same accident, and same injury in order to relate back. However, the defendant can always amend his CC.



Doe practice is essentially a way of having an amendment relate back to the date of an original complaint in order to meet the SOL. With Doe, the CoA has accrued, the SOL has run, and an original complaint was filed. The difference here is that normally you’re amending to add other theories of liability, etc; with Doe, you’re amending to add completely new defendants! Normal relation back deals with things, Doe relation back deals with people—it’s possible to have to deal with both from just one amendment.

Under the FRCP, this is Rule 15(c)—relation back where new parties have been added; it requires that it relate to the same transaction/occurrence, that the new defendant had notice of the action, and that the new defendant know that but for a mistake of the party they would have been named in the original complaint.

CA practice for new defendants is different. Here are the logistics:

  1. The plaintiff must file an action against at least one named defendant before the SOL runs,

  2. The plaintiff must be ignorant “of the name” of the fictitious Doe defendants,

  3. The plaintiff must plead this ignorance in the complaint,

  4. The plaintiff must allege a CoA against the Does,

  5. The amended complaint (with a Doe filled in) should be based on the same facts as the original,

  6. The plaintiff must serve the amended complaint within three years of filing the original; this is the limit because that is the mandatory time limit on service of process.

Ignorant of the Name:

Streicher v. Tammy Electric: Here, the plaintiff files a Doe complaint in 1982. The plaintiff files an amended complaint that now has a products liability CoA against a manufacture that has replaced a Doe. For purposes of the SOL, the amendment had to relate back to not be barred.

The plaintiff needs to be “ignorant” at the time of the original complaint is filed. After this there is no duty of diligence or a duty to investigate for the Does. If the plaintiff becomes unignorant after the original complaint it doesn’t matter—there is no clear requirement of diligent amendment after you become unignorant.

A plaintiff need only be “ignorant of the name” of the defendant at the time that the original complaint is filed—after this they are at their leisure to become unignorant, and at their leisure to amend the complaint to reflect their unignorance.

Some courts have even held that if the plaintiff once knew the name and identity of the defendant, and then forgot before the complaint was filed, that still satisfies “ignorant of the name.”

Note that it’s not unusual to allege negligence and then relate back with products liability (you could argue that they are different facts, but as of now they are thought to be compatible for relation back). Remember with Does that your theory of liability against your new found defendant still must fit within the original complaint—either because you expressly named it, or because it relates back.

GM v. Superior Court: The plaintiff’s complaint was for negligence and she later amended it to add products liability against GM. Was she not “ignorant of the name” of GM, since she told her doctor that her seatbelt had failed?

“Ignorant of the name” means 1) ignorance of the facts pertaining to liability, or 2) ignorant of the identity of the actual defendant. Here, the plaintiff was aware of the identity of GM, however she was ignorant of the facts (i.e. seatbelt defect) pertaining to GM’s liability (i.e. “seatbelt failed” did not mean that she understood that there was an actual seatbelt defect). If the plaintiff had known the seatbelt was defective—i.e. she had experience with vehicles, or she had friends that had told her that there was a recall on those seatbelts, then she would not have been “ignorant of the name” of GM and would have had to include them in the original complaint.

SO, if plaintiff only had a claim against GM, it would be timebarred, because under the delayed discovery rule all the elements came together (injury, knowing cause, and suspicion of wrongdoing) for the CoA to accrue.

However, since the plaintiff had a claim against multiple parties and filed against one of them, Doe works in her favor for GM; it is possible to have a CoA that accrues under the discovery rule, and still be “ignorant of the name” of the SAME DEFENDANTfor Doe purposes.

Note that being unaware of the actual identity of the defendant works against you for accrual, but works for you in terms of Doe.

Know pages 655-660

Ignorance of the name” does not include ignorance of the law; i.e. knowing the identity of GM and knowing that the seatbelt was defective, but not knowing that there was a CoA for defective seatbelts will not satisfy the “ignorance of the name” requirement at the time that you file the complaint. The only possible exception is if there is a change in the law (either statutory or through common law, like the change of the guest driver statutes)—then you can use Doe.



Your action has commenced when you file your complaint with the clerk. Remember—the SOL is a time limit on commencement—so long as you file your action with the court within the specified time period then you’re fine.

Know that if CA is borrowing an SOL from another state, then the court may adopt that state’s notion of commencement along with it.

In some situations there are CERTAIN CRITERIA YOU WILL HAVE TO MEET BEFORE YOU ARE ALLOWED TO COMMENCE YOUR ACTION. Remember that if you have a case that requires one of these special actions, you must do all of this within the SOL.

Statutory Prerequisites to Commencement:

MedMal CCP § 364: 90 days before commencing (filing the complaint) in a medmal action, you have to send the defendant a notice saying they’re about to be sued. If you don’t…no big deal, you don’t lose your claim, but the atty can be disciplined.

§ 364 Tolling: This notice provision has a tolling incentive! If you file a § 364 notice within 90 days of expiration of the SOL, the SOL is then tolled for another 90 days. If you have 90 days or less in your medmal SOL, then once you file your § 364 you get an additional 90 days added on to whatever you had left. The idea is to encourage settlement.

Remember—this prerequisite will apply anytime you’re filing a medical malpractice action in California.

CA Tort Claims Act: You must first file a claim with the agency before commencing an action, and you must file this claim within six months of your CoA accruing (i.e. your SOL for filing a CA Tort Claims Act notice is six months). AND if the agency denies your claim then you have to commence you judicial action within six months after that. If the agency never responds to your claim, then you have two years to file judicial action. [i.e. assuming the agency responds to your claim, there are two “SOLs”—six months to file claim, then six months to file judicial action.]

If you file a claim with the agency over six months after your CoA accrued, then the agency must notify you it’s late—then the plaintiff can still petition for permission to file a late claim. If the agency doesn’t notify you that the claim was late then they have waived their right to raise the defense of a late claim when you bring your action to court.

The same goes with the content of the claim—if the content is defective in some respect, then the agency has to notify you, or else they waive their objection to deficiency of content.

Remember—this prerequisite will apply anytime you’re bringing an action against the state of California.

If you file a claim and it’s denied, then you can choose to bring judicial action—the plaintiff must allege compliance with the CA Tort Claims Act in the complaint; also, your judicial claim can only include claims that were in your notice.

Defective Notices:

Phillips v. Desert Hospital: The plaintiff had complications in the hospital. The plaintiff doesn’t file a notice because she doesn’t know that the hospital is a public agency within the meaning of the Tort Claims Act. BUT the atty does file a medmal § 364 notice in April of 1984. The plaintiff later files a judicial action in July of 1984.

So, can a § 364 notice be treated as a defective tort clams notice? YES. It was lacking in content, but it rose to the level of a defective claim to which the agency had to respond. The § 364 notice was also late for purposes of the Tort Claims Act, and the agency had to respond to this as well.

What is a defective tort claim? At the minimum, whatever you send must state the existence of a claim that, if not resolved, will result in litigation. This is the minimum!

Green v. State Center: Do not be this person. You have not filed even a defective CA Torts Claim when you notify the agency of the issue, but do not make any reference to the issue resulting in litigation if not resolved.

Tolling on Tort Claims: The tolling provisions within the CA Tort Claims Act are exclusive except for 1) equitable estoppel, and 2) Addison-Equitable tolling, and 3) § 364 tolling.

Wurts v. County of Fresno: The plaintiff files a CA Torts Claim notice; it’s denied. He then files a § 364 notice within 90 days of his SOL expiring to extend the SOL by an additional ninety days, and thus give them more time to file the judicial action.

Notice that there will be situations—i.e. when you are bringing a medmal claim against a public entity, like a hospital—that you will be subject to both § 364 and CA Tort Claim requirements before commencing the action. However, the court here essentially determines that in these situations the plaintiff may choose. The plaintiff can file both notices—including file a CA Torts Claim notice, and then a § 364 for the benefit of the extra 90 days—or they can file one notice that has the elements of both in it.

CA Torts Claim notices and § 364 notices are two potential prerequisites to commencing an action. Another is exhaustion of administrative remedies. If the plaintiff is dealing with a situation where there is an administrative remedy, or an internal procedure (like at a hospital) then they must go through that before commencing a judicial action.

DPA v. Superior Court: The DPA does reductions in state pay. The plaintiffs don’t go to the administrative agency (the PERB) and instead they go to court for a writ of mandate.

The principles behind exhaustion don’t really apply here—in this case the facts are undisputed so there’s no need for a record, and there is no separation of powers issue because the PERB said that they didn’t have jurisdiction to hear the dispute. The underlying issues (statutory construction, constitutional issues) were all the judiciary’s prerogative.

Remember: There are two exceptions that can qualify you for getting out of the exhaustion of remedies rule:

  1. Irreparable injury—this exception was met in this case because the claim had to be resolved within a year.

  2. Futility—this exception was met in this case because the PERB declined to exercise jurisdiction.

You want to be able to establish the policies behind the prerequisite of exhaustion of administrative remedies don’t apply.



Conflicts of law deals in determining which state’s law will be applied to a particular case. The vast majority of states follow the second Restatement (apply the law of the state with the most significant interest in the case at hand, and you go on an issue by issue basis); some still follow the first Restatement (the vested rights theory—you look at where the violating right was vested, and then applied the law of that state to all issues in the case). California has its own policy that is based on different categories of conflicts.

The CA Conflict of Laws: California follows the government interest analysis developed by Professor Currie. You determine the policy behind the laws of each state and then determine whether each state has an interest in applying the policy to this case. There are four kinds of cases that Conflicts deals with:

  1. False Conflict—after doing the analysis you determine that only one state really has an interest in applying its law.

  2. Apparent Conflict—after doing the analysis you conclude that each state has an interest in applying its law. If this is the case then do a refined analysis.

  3. True Conflict—after a refined analysis you still conclude that there’s a conflict. (In this situation Currie applied the law of the forum state, however that’s not what CA does.)—apply the law of the state whose policy would be more impaired.

  4. Unprovided for Conflict—after doing the analysis you determine that neither state has an interest in having its law applied. In this situation the default is to apply CA law—unless another state has an interest in having its own law applied in the conflict, then go with the forum law (CA law.) This tentative result to the unprovided for case is from Hurtado.

Remember that CA does conflicts of law on an issue by issue basis—i.e. if you have a conflict on damages, you will do the interest analysis for damages. If you have another conflict for substantive law, then you will do a separate analysis on the substantive law.


Hurtado v. Superior Court: There is a multicar accident in CA (therefore the CA Conflict applies.) The plaintiffs were from Mexico and the defendants were from California.

Remember that Conflict analysis won’t apply across the entire class—it will only apply to a specific issue. In this case, the specific issue was the limitation of damages. CA said that damages were unlimited, and Mexico law says that they were limited. Look at the policies behind the laws:

CA Law: No limitation of damages.

CA Policy: To fully compensate victims (i.e. CA residents)…anddeterrence.

Apply Here?: Yes.

Mex Law: Cap on damages.

Mex Policy: To protect defendants from financial ruin (i.e. Mexican defendants).

Apply Here?: Yes.

Therefore, this is an unprovided for case where neither state has a true interest in applying its law in the situation. However, the court finds that this is a false conflict because CA has a deterrence interest in its policy—not just protecting injured CA plaintiffs, but deterring the conflict altogether. [Consider that if the accident were in Mex, then CA no longer as a deterrence policy; if Mex had a deterrence policy, then this would become a false conflict against CA.]

Try a liability issue: Mex requires intentional tort for wrongful death and CA requires negligence or an intentional tort for wrongful death. Mexico policy is to provide some protection for defendant to make recovery harder. The CA policy favors plaintiffs and deterrence. So there’s a false conflict again in this type of situation.



In true conflicts two or more states have an interest in having their law applied. In this situation, CA follows the comparative impairment approach—apply the law of the state whose interest would be more impaired if it didn’t get its way. This is not a value judgment/better law judgment—you are trying to allocate spheres of lawmaking influence.

Look at the heart of the policy behind the particular law, and ask whether that policy is directly at issue in the case at hand.

Bernhard v. Harrah’s Club: Driver drinks at Harrah’s in NV, then drives to CA and hits a resident.

CA Law: The tavern owner is liable for any injury caused on third parties.

CA Policy: Protect individuals from drunk drivers.

Apply Here?: Yes.

NV Law: No liability on tavern owner that served alcohol to someone that injured a third party.

NV Policy: To protect bar owners.

Apply Here?: Yes.

Thus, there is a true conflict in this case.

So you use a comparative impairment approach. The heart of the CA policy is to protect the individual from drunk driving, and this is what’s at issue in this. The NV law is to protect tavern owners, but that policy would not be so impaired by an adverse holding in this case, because the holding here would affect NV only when people from CA were involved. AND there was already an NV criminal law in place for the same conduct.

There is no value judgment here—it’s just an analysis of which law would be more impaired.

Cable v. Sahara Tahoe: This is the same situation, but the accident occurs in NV. Now, NV’s interest would be more impaired.

Offshore Rental v. Continental: The CA plaintiff brings suit against LA defendant for negligently inuring their employee.

CA: Liability for injuring someone’s employee.

CA Policy: Protect employers from financial loss.

Apply Here?: Yes.

LA: No liability in this situations

LA Policy: Protect potential tortfeaser

Apply Here?: Yes.

This is a true conflict—you’re supposed to consider the core of the policies and if that core is at the center of the case at hand. It is not supposed to be a better law approach, however the court here considers things like how frequently the law is used, and whether the law is archaic as opposed to progressive. They come out with a LA decision.

This approach hasn’t been overturned and is still fairgame! You can argue a better-law type analysis!

The presence of insurance is also considered a factor—i.e. if someone has insurance that will cover loss.

Kearney v. Solomon: The CA plaintiffs were customers and the GA defendant was a business who recorded their clients’ conversations.

CA Law: Can’t record.

CA Policy: Maintain Privacy.

Apply Here?: Yes.

GA Law: Can Record.

GA Policy: Allow business to keep records.

Apply Here?: Yes.

Thus, there is a true conflict. Consider that GA companies could still record conversations, they just need consent. It would only interfere when CA residents are involved. So, CA law does apply.

The court applies CA law for injunction, but then won’t give damages retroactively—this is a good solution in a true conflict situation where conflicts results in one state’s law being applied, but the other party has been reasonably depending on their own state’s law being applied.

CHOICE OF LAW CLAUSES: Remember that you can avoid the conflicts of law problem in contract situations by designating a certain forum’s law up front.

Nedland v. Superior Court: Most commercial Ks have a choice of law clause. These are enforceable so long as:

  1. There is a substantial relationship between the law chosen and the parties to the transaction—or a reasonable basis for choosing that law, and

  2. It doesn’t interfere substantially with an interested state.

In this case the plaintiff was incorporated in Hong Kong. The defendant was from the Netherlands—the clause says that Hong Kong law applies. Under the test, there is a substantial relationship to the law chosen because the plaintiff was incorporated in Hong Kong; there was no state policy being violated by application of that law.


And, while a conflicts of law analysis will go on an issue by issue basis, a clause like this will apply to all causes of action, contract or not, unless the clause otherwise states.

If you have unclear language in your clause (i.e. as to what CoAs the choice of law clause applies to) then the law of the forum, (i.e. CA) will be used to determine the scope of the clause. However, the law of the state specified in the clause will be used to determine whether or not the clause is initially valid (i.e. if you challenge the clause on unconscionability, the selected state’s laws regarding unconscionability will govern the determination of that initial claim.)

Remember: A choice of law clause will not be valid in CA where enforcement would violate a fundamental CA policy.

Guardian Savings v. MC: The parties were all from TX and had a contract to buy land in CA. There was a choice of law clause for TX. Looking at the factors, there was a substantial relationship between the parties to TX. However, does it violate the policy of an interested state? CA had a specific anti-deficiency law. This law had an anti-waiver provision in it that did not allow parties to contract around it. This is the clearest example of a fundamental policy.

BUT you are not done as soon as you determine that policy would be violated—after this you need to do interest analysis. CA must establish that it has an interest that is materially greater than the “chosen” state in having its law applied to this particular case.

Here, the policy is primarily for homeowners and not commercial transactions. Therefore, based on the facts of this particular case, the TX law is okay and not really offensive to CA policy.

Look on Pgs. 312-313 for examples of when a choice of law clause was turned down because it violated a fundamental CA policy.

K’S WITHOUT CHOICE OF LAW CLAUSES: CA uses a hybrid approach—the second Restatement, combined with an interest analysis.

Stonewall Insurance v. Johnson: Defendant is from CA and the plaintiff is an insurance company that is seeking declaratory relief from CA to indemnify them for punitive damages. [Why wouldn’t this K have a choice of law clause?—but there isn’t one state’s law that would be beneficial to the insurance company in every situation. It’s to their advantage to just bring declaratory actions in their desired state on a case by case basis.]

WI Law: Pay punitive damages.

WI Policy: Freedom to K, expectations, etc.

Apply Here?: Yes.

CA Law: Doesn’t pay punitive damages.

CA Policy: Punish tortfeaser.

Apply Here?: Yes.

Thus, there is a true conflict. In this contract situation, CA follows the second Restatement—the appropriate law is where the risk occurred; this would be CA. Then you also do an interest analysis—the court concludes that the party lived in CA, the injury was in CA, and therefore CA has an interest in applying their policy.

Dixon v. Mobile Homes: The plaintiff was an NV home dealer, and the defendant was a CA consumer; the defendant defaults on his payments (i.e. defaults on K.) The defendant CCs says that the K violates CA consumer protection statutes. Defendant wins and now there is an issue of atty fees.

CA Law: Allow atty fee recovery.

CA Policy: Encourage attys to take on consumer protection suits.

Apply Here?: Yes

NV Law: No atty fees.

NV Policy: Protect businesses.

Apply Here?: Yes.

[Know that the court actually found a false conflict, but it would appear that this is actually a true conflict.] Under a true conflict approach, do a Bernhard approach and determine which state’s policy would be more impaired (i.e. was business soliciting business from CA, etc.)]

Ashland Medical v. Provence: The plaintiff is in KY and the defendant is in CA. The plaintiff wants to collect on a note. CA has a four year SOL and KY has fifteen years SOL. A questionable analysis is involved in this case, but the court ends up using the CA SOL.

Remember that the SOL is not considered just a procedural issue—if you have a conflicting SOL, then you will need to do a conflicts analysis.

And remember that the legislature can always weigh in on choice of law. Sometimes the legislature will set conflicts of law guidelines for specific issues in law—if this is the case then ignore the Restatement, and ignore a government interest analysis; follow the legislature.


California claims start in superior court. If the claim is for under $25k then it’s a limited civil case and you can appeal to the appellate division of the superior court. If the claim is for more than $25k then you can appeal to the court of appeals. Remember—CA municipal courts are a thing of the past.

Personal Jurisdiction: Remember that in CA you don’t have to make a special appearance to object to personal jurisdiction anymore (unlike the FRCP). You can raise the issue of personal jurisdiction in your answer—remember that you still have to raise the issue of jurisdiction at your first appearance. If you are denied, then you can file an extraordinary writ of mandate in the court of appeals; you cannot wait until the final judgment is entered to appeal this ruling (also unlike the FRCP).

Venue is a question of which county the suit should be filed in. The default is the county where the defendant resides, but there are many statutes that could require otherwise. This is found generally in CCP § 395—remember that the default is that venue is where the defendant resides. Even though this is the default, there are many other statutes that have different guidelines for venue depending on the CoA.

Under CCP § 395.5, the default venue for a corporate defendant is the place where liability arose.

Brown v. Superior Court: The plaintiff brings an action for employment discrimination. He brought an action in Alameda county; the defendant wants it moved to where they reside in Sacramento county. Remember that the default venue is where the defendant resides.

BUT, there is a FEHA statute says that for a discrimination case the claim can be brought where the discrimination occurred; i.e. Alameda. There were several claims in this complaint, and not all of them were governed by FEHA. Generally, if the defendant can get a change of venue on one issue, then all the issues follow. BUT the court here says that the policy behind FEHA outweighs the policy of the mixed action.

So remember that the default venue is where the defendant resides, and if defendant can establish a change of venue for one of the causes of action, then all the others should follow. The only time this is different is if you have a specific statute for a CoA, and the policy behind that statute trumps the general rules that favor defendants.

Land follows the main relief rule—if the main relief sought in the complaint is for land, then the case is local. If the main relief is transitory (i.e. to recover money) then it is not local.

Gallin v. Superior Court: There was an action in SD; the defendant wants it moved to LA where he lives. Another special statute is in play here—CLPA applies to some of the claim and it would allow the case in SD. But remember to consider the policy behind the special venue statute—here, the court says that the policy behind CLPA wasn’t strong enough to outweigh the mixed action default rule (that if defendant can move one CoA, all the other CoAs follow.)



Bein v. Brechtel-Jochim: There are multiple defendants—Brechtal the corporate entity, Brechtal the president of the corporation, and the Jochims as shareholders. The plaintiff serves the Brechtels (corporation and individual) by serving the gate guard at the person’s house, because the server couldn’t get into the community. Jochim is served at their house to someone who appears to be in charge.

CA favors personal, in hand service—always start by trying to serve process on the individual defendant personally. [In the FRCP you can do personal or substitute service.] You must try to serve the defendant in person at least two to three times (this is considered reasonably diligence) before you can move to substituted service.

If you are dealing with a corporate defendant, then personal, in hand service consists of personally serving a registered agent, or an officer of the corporation.

After this, you can move to substituted service. Is service on a gateguard appropriate substitute service? Yes—the guard controls access to the community.

How does personal, in hand service work for a corporation? In serving a corporation you can serve: 1) a registered agent of the corporation, or 2) an officer of the corporation.

Again, substitute process on a gate guard is fine (here because the defendant was an individual defendant and a corporate officer.)

The defendant loses out on defending the merits of the action because they were properly served, and they didn’t bother to appear. If you want to challenge service then you need to appear and file a motion to quash, and answer the complaint.

Olvera v. Olvera: The plaintiff can’t find the exact location of the defendant, who is their daughter in law. They know that she is in the Pismo Beach area. The trial court grants an order of publication, and they publish the notice in Riverside, where the property at issue was. She doesn’t appear and a default judgment is then entered on the case.

For service by publication to be valid at all:

  1. Publish in a location most likely to come to the attention of the defendant,

  2. Reasonable diligence in both personal service and substitute servicebefore resorting to publication. Publication is considered constructive service. You MUST follow this order: personal service (at least two or three times), substitute service, and then—if NEITHER OF THOSE ARE SUCCESSFUL—constructive service.

“Reasonable diligence” is a stricter standard for getting to constructive service than is for substituted service. For substitute service you have to try to personally serve the defendant a few times. For constructive service you must do everything possible to locate the defendant—check voter logs, check with old employers, check with family, check phone books, check tax rolls, etc. See Pg. 398 for a complete list.

  1. You must demonstrate on your application for constructive service that you exercised reasonable diligence—i.e. you have to actually elaborate on the application everything you did to find the defendant.

Here, the plaintiff knew that the defendant was in Pismo Beach, so right off they were wrong to publish in Riverside. And they didn’t come close to meeting the second two criteria.

MAIL—IS a valid method of “personal, in hand service” in CA:

CCP § 415.30—You can serve a defendant living in California via the mail. They must sign the forms and return them—i.e. the defendant has to actually accept service by mail; but if they’re difficult and don’t accept mail service then he could be liable for extra costs at trial.

CCP § 415.40—You can serve a defendant living outside of California by mail, so long as there is indication that the defendant has received the summons. Always consider CCP § 417.20 in conjunction with this (see below.)

In Re Marriage Tusinger: The plaintiff wife is in CA; the defendant husband is in AR. The plaintiff mails the complaint and summons to AR with a return receipt. The defendant mother receives them and signs for it—a default judgment is later entered.

Service by mail is not proper where the person who accepts the service for the defendant is not the defendant, and is not the defendant’s appointed agent.

BUT you can consider § 417.20 (remember that you can only consider this when you’re dealing with a § 415.40 issue)—you can look at other evidence to establish that service by mail was effective. Here, the defendant atty had indicated that he had received the divorce petition, so that was satisfied.

Miscellaneous Service Fun Facts:

Corporation: A corporation doing business in CA has to designate an agent that is in the state to accept service of process. If they don’t, then substituted service can go to the CA secretary of state.

Driving: If an out of state driver is in an accident here, then the Director of the DMV is the agent for service of process concerns. The director will receive process and then give it to the defendant.

Generally, the time limit for service of process is three years. In some cases it may be two years. Fast track rules generally say that the time limit is sixty days!



CA essentially follows the FRCP and other federal common law.

Stangvik v. Shiley: This case features an international plaintiff against a CA defendant. The defendant argues for forum non saying that Swedan/Norway would be a more appropriate forum.

What makes a forum unsuitable?

  1. If there was no remedy for the plaintiffs at all—either because the forum didn’t recognize a CoA or because the legal system there is corrupt. Remember: The fact that the adverse forum has unfavorable law is not given any consideration at all! You must establish that there is no remedy at all in the alternate forum to defeat this part of the forum non motion.

  2. If the alternative forum does not have jurisdiction over the defendant.

  3. If the SOL of the alternate forum bars the plaintiff.

The last two factors don’t really matter because a defendant will always waive jurisdiction and SOL defenses in order to get their forum non motion granted. Defendants generally alwayswant to get tort cases out of the United States (forum non has nothing to do with convenience—it’s about picking the most advantageous law, even if getting there is inconvenient.)

Looking at these factors, Swedan and Norway are not an unsuitable forum.

Remember, once you determine that the alternate forum is suitable (because it meets the three factors above) you still have to balance the interests of the parties involved. It’s not enough for the defendant to just establish that there is a suitable alternative forum.

In balancing these interests, you can look at bothpublic and private interests. Here, there is a public interest against court congestion that goes against a CA forum. There is also a public interest in deterrence and regulating CA business; this goes for a CA forum, however this policy is satisfied by the fact that there were other similar cases already pending against the same defendant in CA that weren’t subject to forum non motions.


In California you can have a forum non motion to dismiss which will clear the case completely out of the CA court, or you can have a forum non motion to stay; in which case the CA court will retain jurisdiction over the case just in case they need to reassert jurisdiction. If the plaintiff is a CA resident, then they’ll probably be a forum non stay instead of a forum non dismissal.


You can designate a forum in a K—these clauses are permissible unless they were the result of unequal bargaining power (i.e. fraud), or are so inconvenient that it would deny the party their day in court (i.e. where the only reason the forum was chosen was to dissuade litigation.)

Case: NJ wrote a K and designated NY as the litigation forum. Remember that there should be 1) a rational basis for choosing the selected forum, and 2) use of that forum should not violate any CA policy. There is a rational basis for this decision because NY is close to NJ and it has a well developed law on commercial matters. The court doesn’t have to accept the clause if it would violate a policy of CA; although it doesn’t in this case.

Look at America Online—in this case the forum selection clause was not enforced because enforcement would have resulted in a violation of CA policy laid out in the Consumer Act.

Cal State: If you want to enforce a forum selection clause then you file a forum non motion in whatever state the plaintiff brought the lawsuit in.

What law do you use to determine whether the forum selection clause is valid? You use the law of the designated forum. This can get interesting because some states don’t even accept forum selection clauses—so if you picked that state you’d be SOL because under that state’s interpretation the clause has no weight.

Remember—for choice of law you use the law of the chosen state to determine if the clause is valid. Same for forum selection—you use the law of the chosen forum to determine whether the clause is valid; consider that some states do not recognize forum selection clauses! It would be pointless to select one of these states because you won’t get past the initial hurdle of enforcing the clause. REMEMBER—use the designated state’s law to determine whether BOTH choice of law and forum selection clauses are valid.


CA follows the PRIMARY RIGHTS theory with respect to res judicata. Remember that res judicata = claim preclusion; and collateral estoppel = issue preclusion.


Violation of a primary right gives rise to a cause of action—primary rights and CoAs go hand in hand. Violation of one right means one CoA; two rights means two CoAs, etc. You can never split a CoA into two separate lawsuits. The violation of a primary right must be dealt with completely in a single suit. If you have two primary rights, then you have two CoAs and can bring those in separate suits.

Holmes v. Bricker: This was a car accident case where the plaintiff has both personal and property damage. They split it into two lawsuits—in the first lawsuit the grounds was breach of warranty and in the second lawsuit the ground was breach of K.

Normally personal injury and property damage are two different CoAs in CA. However, the plaintiff here pleaded incorrectly—he pleaded breach of K, which the court held to be a single primary right that resulted in personal and property damage. If he had pleaded personal injury and property damage from negligence or fraud, then it would be two CoAs that he could split. It was the pleading of K breach that messed him up.

Slater v. Black: In this case, the plaintiff was limited by the automobile guest statute—the defendant won the case on the guest statute issue. Later, the CA SC overturned the statue. The plaintiff then brings a second suit.

A CoA can be comprised of several different theories of liability—different theories don’t mean that you have multiple CoAs that can be split. The plaintiff had a violation of a single primary right—i.e. personal injury; this gives rise to a single CoA. The plaintiff now has a different theory of liability for how to recover on that CoA, but it doesn’t matter—the CoA was brought in the first suit, and can’t be brought up again.


Sawyer v. First City: In the first case the plaintiff went after the defendant for unpaid balance of a purchase price. The claim was based on contract. In the second case the plaintiff went after the defendant for the same damages, but now alleging fraud and other tort theories of liability.

Even though the harm suffered by the plaintiff is the same in both suits, the court believes that there was a violation of two primary rights. The court says that it’s significant that there are different facts involved in the cases. For this case, a significantly different factual structure between K and tort liability makes it two different primary rights that could be brought in separate suits.

NOTE: Slater and Sawyer are not consistent with each other—they are two different approaches. Slater says that different factual structures do not make theories of liability different CoAs. Sawyer says that significantly different factual structures means two primary rights even where ultimate damages are exactly the same.

Remember that if you’re dealing with a tort claim that features multiple personal injuries, all of those injuries come from the violation of a single primary right.


Takahashi v. Board: In this case the plaintiff was fired.

-First, she goes through an administrative process—it was not possible to attain money damages in this action, she could just get reinstated. Her claim is denied.

-She then appeals to superior court, where the decision of the administrative court is affirmed. The judgment is now final.

-After this she brings a different superior court action, now alleging new things like race, sex, age discrimination, etc.

What is the primary right at issue? The court says that the primary right is the right to be employed and not wrongfully discharged—this right is the basis of both suits, and therefore the second suit is barred by res judicata. The plaintiff argues that there are two primary rights—the first suit based on the right to be employed, and the second suit based on the right to not be discriminated against.

The plaintiff also argues that it didn’t make any sense to raise the discrimination issue in the first case, because the first case was an administrative hearing where no damages could be awarded—thus, there was no point in bringing up discrimination. The court doesn’t accept this—it doesn’t matter that the plaintiff couldn’t get damages in the administrative hearing—the plaintiff had to raise all defenses at the hearing. If she was reinstated, then she could file a separate suit for damages (but this is bad advice because the defendant would have a res judicata defense in the second suit). Even though the first process can’t give you all the relief you want, you can’t split your CoA.


Craig: This is a similar case. Here, the plaintiff filed with the Civil Service Commission for being turned own for employment. Then the plaintiff filed action in state court seeking money damages. The court finds two primary rights—the first violation of the right to be employed, and the second the violation of the right to not be discriminated against.

This was also reflected in People v. Damon—The state filed with an administrative-like court for revoking of a business license; then the state filed in judicial court for damages. Here, the court didn’t even look at primary rights—the court said that because the first proceeding didn’t have jurisdiction to order damages, the second action would not be barred.

So, note that Craig and Damon come to the exact opposite conclusion from Takahashi. Craig takes a similar situation and finds two primary rights, and Damon says that even without looking at primary rights, two suits are okay where the first suit couldn’t get you damages. To be on the safe side, just bring everything in the first suit.

Important Statutory Exception:

There is a statutory exception to res judicata—When you only file for declaratory relief, then that judgment doesn’t preclude you from a second suit for specific performance, damages, etc. This is the Mycogen holding. But remember—if you file for declaratory relief and anything else (like an injunction) then you are outside of the statute and are precluded by res judicata.

Remember—just because the defendant violated state and federal law doesn’t mean that there are two CoAs! Look only at the primary rights involved.

Mattson: The plaintiff alleged discrimination and violation of both federal and state civil rights laws—he files in federal court and requests supplemental jurisdiction, which the court denies but ends up winning his federal claim. The plaintiff cannot later refile his state law claim in state court because he is alleging only one primary right, and primary rights cannot be split into different suits.

As soon as the court declined supplemental jurisdiction, the plaintiff should have pulled the federal suit and refiled the entire thing (with both the state and federal theories of liability) in state court. [Know that the second Restatement would have allowed the federal court to hear one part of the claim and the state court to hear the other; it allows for this kind of splitting.]

Koch v. Hankins: This is similar, except that the federal claim was an SEC claim that could only be heard in federal court! There was an exception to the splitting of the primary right because there wasn’t a single court that could hear the entire claim.


In the FRCP these are referred to as counterclaims. Just like the FRCP, there are permissive and compulsory cross claims. The standard for compulsory cross claims comes straight out of the FRCP—i.e. potential claims that come out of the same transaction or occurrence of the original complaint are compulsory CCs.

Note that there is a difference between res judicata and CCs.

Case 1: P v. D for personal injury.

Case 2: D v. P for personal injury and property damage.

Case 2 is not barred by res judicata—case 1 dealt with violation of P’s primary right, and case 2 dealt with violation of D’s primary right. Therefore, this isn’t res judicata. However, case 2 is barred because D’s CoA’s came out of the same transaction/occurrence as P’s original complaint, therefore it had to be brought up as a CC.

Case 1: P v. D for personal injury.

D CC’s for personal injury.

Case 2: P v. D for property damage.

D CC’s for property damage.

The second suit is not barred by res judicata—there are two different primary rights. P has two legitimate CoAs and can bring them in two separate suits. BUT, D had to bring up everything relating to the same transaction/occurrence in his CC—this means that he had to bring up personal injury and property damage. AND, when D CC’d, even incompletely, P became the defendant for that “suit”—as soon as D CC’d, P was obligated to CC back on any and all CoAs related to the transaction/occurrence, which would have included property damage. Therefore, the rules of compulsory cross complaints bar the second suit.


You cannot relitigate an issue of law or fact that was determined in a previous proceeding. For issue preclusion to work, the issue had to have beenessential to the first judgment.

Case 1: P v. D for negligence, personal injury. D is found negligent.

Case 2: P v. D for negligence, and property damage. Now, the defendant is collaterally estopped (i.e. issue preclusion) from relitigating the issue of negligence. The only issue in Case 2 is damages for property.

Sutphin v. Speik:

Case 1: The question was whether the plaintiff was owed 5% royalties from 1927-1934. If yes, then the interest attaches to the wells drilled on the specific piece of land.

Case 2: The plaintiff wants 5% royalties for a different period of time. The defendant raises the defense that one of the wells was drilled horizontally and it was tapping oil that was under other land.

This isn’t a problem of claim preclusion because you’re not dealing with the same primary right (a different time period means a different primary right.) BUT there is issue preclusion. Pg. 538, “If the matter was within the scope of the action, related to the subject matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged.”

Issue preclusion doesn’t apply to the new issues, but the court says this is a new theory, not a new issue. It applies to things that could have been raised, not necessarily things that were raised.

Case 1: A v. B for property damage. It is alleged that B was negligent because he was reading a paper. Ruled for B.

Case 2: A. v. B for personal injury. It is alleged that B was negligent because he was talking to his kids. Battery is also alleged.

There is no claim preclusion because the cases deal with two different primary rights—personal injury v. property damage. However, there is issue preclusion for negligence—negligence was raised in the first suit, so you can’t raise it in the second suit under a different theory. Notice that whether battery is the same or different issue depends on how you define issue. If you say that the issue is tortious behavior, then battery is one theory. IF you say that issue was negligence, then battery is not precluded.

Read pg. 548.

Marriage of Mason: The wife’s business was divided as community property. H then sought to raise the issue of the good will associated with the business. Even though the actual question wasn’t determined in the first suit the prior judgment was issue preclusion on matters that were raised or could have been raised.

Hen v. Hen: Here, the asset not disposed of was H’s retirement pension, The court said that the issue wasn’t raised in the first suit and therefore wasn’t actually litigated and determined.

So, Mason and Hen have different results!

Non Mutual Defensive Collateral Estoppel: When the plaintiff goes after the first defendant and loses, and then goes after the second defendant on the same issue, the second defendant can use defensive collateral estoppel.

Offensive Collateral Estoppel: When the first plaintiff goes attain the defendant on something like negligence in an accident that injured many people. The second plaintiffs and others may bring suit against the defendant and stop him from relitigating the issue of negligence.

Collateral estoppel can apply in administrative hearings and arbitration—but arbitration won’t have a non-mutual collateral estoppel effect.

These are situations where a party to the original action will be barred in subsequent actions.


This applies in both collateral estoppel and res judicata; in these situations, a party that was not at all involved with the original action is still affected by that action in subsequent litigation because of their relationship to one of the original parties. Privity means that you will be treated as though you were a party to the first suit.

A v. B and A wins. A v. C and now—can A use preclusion tactics against C? Only if C is in privity with B.

Look at Pg. 585 for information on parties who are considered to be in privity.

Dyson v. State Personnel:

Case 1: State v. Dyson for theft—a motion to suppress the evidence of property is granted.

Case 2: Employer v. Dyson for theft. Is the employer bound by the decision in the first case that the evidence wasn’t allowed? You must determine whether the parties have a sufficiently close relationship. There must be an identity/community of interest between the parties.


Plaintiff sues the state for officer negligence in not fully investigating the situation. A demurrer is granted, but then reversed. The case goes to superior court where the plaintiff gets a judgment. The defendant then appeals to the SC.

Meanwhile, there was a change in the law under Williams, which created stricter standards for officer liability. The defendant says that Williams should apply.

When an appellate court makes a ruling on an issue of law, that ruling will bind the superior court on remand and will not be reconsidered on any subsequent appeals—it’s the law of the case. BUT if there is an intervening, contemporary change in the law then there’s an exception. Williams called out the present case by name, so it’s a good candidate for the exception. This would requirement that there be a new trial with the new law.

However, this court decided that no substantial injustice had been done, and at the time of trial Williams had not been decided.

Remember that the law of the case applies to the SAME case, where as preclusion deals with two distinct cases.


CA is a code pleading state.

Semole: The plaintiff must plead central facts that are sufficient to apprise the defendant of the basis of the claim against them.

Pleading Restrictions on Personal Injury—

In a personal injury/wrongful death action for compensatory/punitive damages, you cannot put the amount sought in the complaint. You must give the defendant a separate statement of damages.

Debbie v. Ray: Here, the defendant doesn’t show up to trial—a default is entered against him for $1mill, but overturned because the plaintiff had never served the defendant with a formal statement of damages. Know that a less formal means of notice—i.e. telling the defendant—will not satisfy the requirement of a statement of damages. The amount stated in the statement of damages doesn’t have to be exact—it can be more than the plaintiff thinks they’re going to get; the idea is to put the defendant on notice as to what their potential liability is.

Remember that a plaintiff must serve a statement of damages before seeking a default judgment.

Pleading Restrictions on MedMal—

CA Hospital v. Superior Court: CCP § 425.13—in a claim of negligence against a health care provider, you cannot allege punitive damages in the complaint. The plaintiff must establish a substantial probability that they will prevail, and then they can amend the complaint with punitive damages. There must be a showing of competent evidence that supports a claim for punitive damages.


CCP § 430.10—all the reasons you can use a demurrer.

General Demurrer—means that the complaint doesn’t state a cause of action.

Remember that you can waive most grounds for a demurrer by not raising them in a timely manner. The only ones that you can’t waive are 1) subject matter jurisdiction, and 2) failure to state a cause of action.

Dryden v. TriValley Growers: In looking at a demurrer, the court takes as true the allegation of the complaint. AND the court may take judicial notice of additional facts that determine whether one of the allegations is defective.

Carean v. Security Specific: If there is a reasonable possibility that the plaintiff can amend the complaint to cure its defects, then leave to amend should be granted for the demurrer.


Currie Medical v. Newell:

Case 1 was Federal Bowen v. Currie for unfair competition. The case was dismissed.

Case 2 was the state and Currie v. Bowen for unfair competition and others.

The court will look to see if there is a logical relationship between the claim—if so, then they will determine that it is part of the same transaction/occurrence. The court decided that there was a logical relationship here—when in doubt always raise the issue in a cross claim.

Here the parties argued that the first case was federal and the second claim had state law claims in it—if the claims (i.e. state and federal) come from the same common nucleus of operative facts (i.e. if there is a logical relationship) then you’ve satisfied the test for supplemental jurisdiction.

In other words, if it satisfies the test to be a compulsory cross claim, then it will also satisfy the test for supplemental jurisdiction. So, if you can bring a CC based on the subject, it doesn’t matter if it is based in state law and you’re in federal court.

Crocker National Bank v. Emerald: The cross complaint must be filed timely, or else it is waived. If it is not timely, then the court can grant the defendant leave to file the cross claim if the defendant had a good reason for not doing so sooner.

For this to work, the defendant must not file a cross complaint, though. This method will not work if the defendant filed a cross complaint and was turned down. For the good reason excuse to work, the defendant must have not filed one at all.

Another aspect of the compulsory claim is that the CoA be available at the time that the original answer was filed. If the CoA isn’t available at the time that the defendant files their original answer, then the cross complaint is permissive and the court has the discretion to let the defendant bring it in later.

Pg. 707—affirmative defenses v. CCs.

Pg. 710—the SOL and CCs.


Concurrent tortfeaser means that there will be joint and several liability—whatever P wins, he can choose to collect from any defendant. The defendants are then liable to each other in the amount of their respective comparative faults.

If a defendant makes a good faith settlement before trial, then that settlement will be offset from the total verdict that the plaintiff can recover from the remaining defendants. A good faith settling defendant is immune from comparative indemnity—the non settling defendants cannot come after him.

When you’re calculating comparative fault amounts between non-settling defendants, you take the settling defendant completely out of the equation—i.e. the denominator is 100% liability, minus whatever the settling defendant’s percentage of liability was. You multiply this ratio by the offset judgment.

American Motorcycle v. Superior Court: Here the plaintiff went against AMA and another party for negligence (in allowing their child to enter a bike competition.) The defendant filed a new party cross complaint (i.e. impleader) to bring in another party—i.e. the parents.

At the end of this case, each concurrent tortfeaser is liable to the other in the amount of their comparative fault. After this case, the liability is no longer pro rata. Even though there is comparative fault, the principles of joint and several liability still apply—in other words, if AMA is found 80% at fault, Viking is found 10% and the parents are found 10%, then the plaintiff can recover the entire amount of damages from any one defendant.

Good Faith Settlement: Suppose that Viking settles for $100k. The plaintiff goes to trial against the other defendant and gets $900k. A good faith settlement is offset—the plaintiff can recover only $800k total from the other defendant.

The defendant who settled is discharged from any further liability from claims against him by concurrent tortfeaser—comparative indemnity will not work against settling defendant.

Bracket v. State: Here the plaintiff goes against G and B. G settles for $350k before trial, the court rules that the settlement is in good faith. At trial G is found to be 5% at fault, and B is found to be 85% at fault, and G is found 10% at fault. The total judgment is for $2.5mill.

Here, you take $2.5mill – $350k—this means that the plaintiff can get a total of $2.15mill from B.

B then brings another claim against the state based on comparative indemnity.

You calculate the comparative indemnity between the no settling tortfeaser as if the good faith settlement didn’t exist! Look only at the defendants subject to comparative indemnity. B is 85% liable and the state is 10% liable, which means that you’re only considering 95% total. B is liable for 85/95 and the state is liable for 10/95 from the offset judgment, i.e. $2.15mill.

Therefore, B is liable for $1,923,684.22 and S is liable for $226,315.78. B can recover this from the state in his second suit.

In this situation, G who was the good faith settler, settled for more than his share of liability. G can bring a claim against the other no settling tortfeaser to apportion the overage that he’s paid. The only way the other defendants are protected from this is if they settled before trial. So, if a defendant settles for a lot less then it’s fine because he’s immune (so long as the settlement is declared to be in good faith) and if they settled for a lot more than it’s fine because they can get it back.


Suppose that the plaintiff goes against D1, D2, and D3. D1 settles for $200k and D2 settles for $955k. There is a trial against D3 and a verdict is rendered for $1.24mill. How much does D2 owe the plaintiff?—NOTHING. Because the settlements offsetting the judgment means that the plaintiff has already been paid in full.

At trial it was found that D1 was 15%, D2 was 15% and D3 was 10%. What can D1 get from D3? He can get 15/25 x $1,249,136—D1’s liability is $749,481; therefore, he under settled and cannot get anything from D3.

What about D2? 15/25 x $1,249,136—D2’s liability is $749,481. This means that D2 over settled by $205,519. D2 can bring a comparative indemnity claim against D3 for this amount.

So, D3 doesn’t owe the plaintiff anything, but he still has to pay out to the settling defendants.

Fair Responsibility Act: Economic damages are those that you would have an actual receipt for—i.e. bills, medical expenses, etc. Non-economic damages are those like pain and suffering, embarrassment, etc. Under the Fair Responsibility Act there is no longer joint liability for no economic damages!

Suppose that the plaintiff goes against A, B, and C. A settles for $300k. The jury returns a verdict for $1mill economic damages, $1mill non-economic damages. A is 60% at fault, B is 30% at fault, and C is 10% at fault. B is insolvent!

How much can the plaintiff recover from C? For non-economic damages, the settlement will not be offset! AND, the plaintiff can only recover C’s amount of the liability. 10% of $1mill means that the plaintiff can recover $100k from C.

With economic damages, though, it’s tricky because you can’t just offset the damages. Here, total damages are $2mill. The economic damages are $1mill, and that accounts for 50% of the damages. Therefore, take 50% of the settlement and that’s the amount that will be offset. 50% of A’s $350k settlement is $150k. $1mill in economic damages – $150k is $850k economic damages that is still subject to joint liability.

The plaintiff can get $850k economic damages and $100k non economic damages from C.

Remember that non-economic damages are not subject to joint and several liability—each defendant is responsible for their own economic damages based on comparative fault.

Espinoza: The plaintiff sues D1 and D2. D1 settles for $5k. At trial the economic damages are $5,242.94. The no economic damages are $15k. The plaintiff is 10% at fault, D1 is 45% at fault, and D2 is 45% at fault.

Remember that you can offset only from the economic damages. $6,242.94 economic damages/$21,242.94 total damages times the $5k settlement means that $1,467.77 will be offset.

But don’t forget a key part of this case—that the plaintiff is 10% at fault! That’s huge! This means that you take $6,242.94 economic damages – $642 (because the plaintiff is 10% at fault) and then subtract the offset, which is $1, 467.77. This leaves $4,150.88 in economic damages.

For noneconomic damages, you take 45% (at fault) multiplied by $15k—this is $6,750. $6,750 + $1,467.77 is $10,900.88 total for D2.

Sliding Scale Settlements:

Abbott Ford v. Superior Court: Remember that sliding scale settlements are fine so long as they’re in good faith. Here, D1 guarantees to the plaintiff in their settlement that the plaintiff will receive $3mill. At trial, if the verdict is over $3mill then D1 owes nothing! And, if the jury verdict is less than $3mill they only have to make up the difference.

So, it becomes important to determine whether the settlement is in good faith. If the settlement is in the ballpark of the settling defendant’s likely liability, then it is in good faith. If it’s disproportionately low, then you can still do it, but the court has to declare that he settlement is in good faith in order for you to be immunized from other non-settling defendants.

With a sliding scale settlement, the parties arrive at a figure that is the value of the settlement. The value of the settlement is the offset. Suppose that this settlement is valued at $1mill. The verdict comes back for $3mill—offset this by $1mill, and this means that there is $2mill that the unsettling defendant has to pay. The settler will pay $1mill.

Suppose at trial the verdict is $4mill. You offset this by $1mill—this results in the unsettling defendants paying $3mill and the settling defendant paying nothing because they guaranteed the plaintiff that they would receive $3mill.

Although note that if the verdict came back for less—i.e. $1mill, then the settling defendant would have to end up paying more than its ballpark share.



California hasn’t adopted a comprehensive class action statute, so we borrow from various other sources. CCP § 382 is the California statute that allows for class actions. The CA courts follow the rules for consumer class actions and FRCP Rule 23, which pertains to class actions. Although remember that the CA courts are not bound by the FRCP.

Antagonistic Class Members:

Richmond v. Dart: If the court fully denies class action certification, you can appeal that decision. For certification, the plaintiff must show an ascertainable class and a “well defined community of interest” among class members.

There are three factors of a “well defined community of interest”: 1) Predominant questions of law and fact, 2) class representative with claim that are typical of the class, and 3) class representatives that can adequately represent the class.

Antagonistic class member will not automatically defeat the class—you can deal with them by allowing them to opt out, or intervene, or by creating subclasses. Having one big suit creates judicial economy and it allows one court to hear the entire issue.

Even if the court certifies the class, the certification isn’t a done deal—the court can change its mind, or create subclasses later.

Multiple Class Actions:

Bell v. American: In a normal class action certified under Rule 23(b)(3), the parties must give class members the best notice practicable and give them the opportunity to opt out. But if it’s certified under Rule 23(b)(1) or Rule 23(b)(2) then no notice is required, and no right to opt out is necessary.

Rule 23(b)(3) is a lot broader—if a case can be certified under Rule 23(b)(1) or (b)(2) then that’s preferable. Rule 23(b)(2) is appropriate where the final relief sought is either exclusively or predominantly injunctive, not money damages. The trial court has the discretion to determine this.

There is an SC case that says as a due process matter, you must be able to opt out where the claim is primarily for money damages.

CA has a rule that when notice to a class is required, the trial court can allocate the cost of notice between the plaintiff and defendant. It can shift some or all of the cost to the defendant (unlike in federal court cases.) And, also unlike federal court, notice doesn’t necessarily entail individual notice; even where the plaintiff seeks money damages and the location of the member is known, and notice is required, INDIVIDUAL NOTICEis not always required! In this situation you could have notice by publication.

Fluid Class Recovery: This compensates people in the same category as class member; i.e. if a company overcharged people in the past, they may now must give refunds to customers in the future. This isn’t allowed in federal court, but it is okay in California.

Allowing notice by publication, shifting the cost of notice, and fluid class recoveries make it easier to have a small claimant class in CA than in federal court.


Discovery is barred by absolute and conditional privileges. Conditional privileges can be overridden by the court with a showing of necessity; however, absolute privileges can only be overridden by statute.

Privacy Privileges—are qualified.

Valley Bank v. Superior Court: The right to privacy is a qualified right in discovery.

Here, the bank went against the defendant, and the defendant wanted to get financial information of the bank’s other customers, i.e. third party customers. The nonparties here have a constitutional right to have their financial information held confidential by the bank. It’s a qualified right, so the court does a balancing test—balance the interests between the parties seeking discovery and the non-parties whose information is sought.

In addition to the balancing test, the court has procedural protections that should be considered when deciding whether or not to compel disclosure. The court can do an in-camera review, or issue a protective order to deal with this issue.

Babcock v. Superior Court: Here, the allegation was that the community property was used on one the party’s mistresses. The records sought here can be produced—the atty can be used to sift through the documents and determine what is relevant (a sworn declaration is submitted to the court.) Also, the court uses procedural protections—a protective order can be used so that the plaintiff herself will not be able to see the documents.

Work Product Privileges—are both qualified and absolute.

There is both an absolute and a qualified work product privilege The absolute privilege applies to any document that reflects an atty’s opinions, conclusions, and theories. No showing of need will pierce this—the only thing that can pierce this privilege is statute.

For the qualified work privilege, the court can consider if denial of discovery will unfairly prejudice the party seeking the documents. The line between the absolute and the qualified privilege isn’t clear.

Nacht v. Superior Court: The plaintiff serves the defendant form interrogatories that request a list of individuals that the defendant had interviewed about the incident, and information about individuals from whom written or recorded statements were obtained.

Individuals that have been interviewed by the defendant is covered by the absolute work product privilege—it is strategy and reveals who the atty thought had the most valuable information. However, written and recorded statements are not work product if they were issued only by the witnesses—however, they are work product if the statements were drawn up by the attys after the interviews. Remember, anything that reflects that atty’s strategy will be covered by the absolute privilege.

This case establishes that even if you use the court’s own form rogs, you’re not guaranteed that you’ll get all the information. Forms don’t prevent the assertion of privilege!

BP Alaska v. Superior Court: If a client is consulting with an atty for the purpose of furthering a crime or fraud, then the atty-client privilege will not apply. However, crime fraud is an exception to the atty client privilege, but not the absolute work product privilege!!

See Pg. 866 for exceptions to the absolute work product privilege—including disciplinary actions against an atty, or actions of a former client against an atty.

In Re Jeanette H: Qualified work product means that the document can be discovered if the requesting party can show that injustice will result or they will be unfairly prejudiced. Qualified applies to material that is derivative in nature, and not ultimate facts, that has been prepared by the atty for the case.

The qualified privilege applies only during discovery, and not in the pre-trial stages, where it will be disclosed anyway.


The defendant must establish that the plaintiff does not possess evidence to support essential elements of their claim, and that the plaintiff cannot reasonably attain the needed evidence either! This is the major difference between the CA rules and the FRCP.

Gaggero g. Yura: The plaintiff here didn’t produce evidence that they could pay for the property; at deposition, they were asked about paying and didn’t respond. But this is not enough—the burden is on the defendant to show that plaintiff is financially unable to purchase the property.

The defendant could file a motion to compel the financial documents.

The courts want to limit the use of summary judgment to motions to situations where the defendant knows that he is going to win the motion.


Juge v. Sacramento: The defendant here needs to tell the court the legal theories they’re basing the motion on. The trial court does not have any duty to search the record for facts to support the motion. However, the court can always raise a legal basis for summary judgment that is not raised in the motion sua sponte. The court must give notice to the parties that it is considering granting summary judgment on that basis—here, the plaintiff admitted to the causation element at the hearing, and the case was thereafter disposed of.


Entry of default occurs when the defendant hasn’t answered the complaint This terminates the defendant’s right to answer—they have to set aside the entry of default if they want to be able to proceed. Default judgment occurs at a prove-up hearing, where the plaintiff produces evidence showing that they are entitled to judgment—i.e. a prima facie case with facts to support each element of the CoA.

Remember that in a personal injury action a defendant’s default will not be effective unless they were served a statement of damages.

Schwab v. Rondel Holmes: The plaintiff here filed an action for discrimination—they sought actual damages no less that $50k and punitive damages for $500k. At trial, the plaintiff received much more than this.

The defendant had a notice of damages from the complaint, but they challenged the outcome because they didn’t receive a statement of damages under CCP § 425.11 (remember that this is required for personal injury actions.) The court here determined that the jurisdictional limit of the court isn’t enough to give the defendant adequate notice of the damages being sought.

Now, CCP § 425.11 requires only that you state the nature and amount of damages sought—i.e. it’s no longer strict on stating actual versus punitive damages. In this case, the nature and amount of damages was named in the complaint, even though it wasn’t supposed to be, and this would be enough to have given the defendants notice.

Also, with respect to CCP § 425.11, if you’re serving a defendant that hasn’t answered the complaint, you must serve this notice in the same manner as you would the complaint. If the defendant has already appeared—i.e. filed an answer—then you can serve the notice by mail to their atty.

If the defendant responds, and then you later amend the complaint with a material, substantive amendment, then the defendant will have a new opportunity to respond in the answer, and the same rules for §425.11 notice will apply.


1) CCP § 473.5—this applies if the defendant didn’t get actual notice of the action. See Olvera v. Olvera (under Service of Process). CCP § 473.5—you can vacate a default judgment if the defendant didn’t have actual noticeeven if the service of process was proper! The defendant here knew of the lawsuit—however, “actual notice” here means notice of the CoAs—i.e. the kind of notice that you get from actually looking at the complaint.

This kind of exception to default judgment will mostly apply when service was through publication, but it can apply in any situation where there is proper or improper service and as a result the defendant was not given actual notice of lawsuit.

2) CCP § 473—

Beeman v. Burling: Here, the atty didn’t file an answer because his girlfriend was in the hospital.

The court says that the prove-up hearing didn’t amend the complaint—even though the plaintiff offered evidence at the hearing that went beyond the actual complaint, it didn’t constitute a material change that gave the defendant a new opportunity to respond. § 473 used to say that you can set aside judgment for excusable neglect or mistake. Excusable means something that a reasonable person could also do—you had to file this motion within six months.

Under the amendments to § 473, the atty can file an affidavit saying that the default was a result of his neglect—excusable or not—and the court must set aside the default. AND it’s is no longer discretionary! Remember that this is the active rule.

You have six months in which to set aside a default judgment under these provisions—however, if it’s been longer than six months you still may be able to set it aside:

Rappleyea v. Campbell: The trial court can set aside default for extrinsic fraud or mistake. To set aside a default based on extrinsic mistake, the defaulting party must show:

  1. They had a meritorious case—the defendant needs to make an answer to the complaint under oath.

  2. A good excuse for not presenting a defense in the original action—in this situation the good excuse was that the parties were misinformed of the filing fee. Being told incorrect law by the plaintiff is not a good excuse, even where you are proceeding pro se.

  3. Diligence in setting aside the default once they discovered it—in this requirement you are looking for potential prejudice to the plaintiff. There is no prejudice here because the plaintiff delayed a year in getting the default judgment after the entry of default.


Your case will be dismissed if you have not served process within three years of filing a complaint, if you have not gone to trial within five years of filing the action, and if you have not brought a new case to trial within three years of getting an appeal.

Pg. 1006—these are discretionary grounds for dismissal.

Fastrack rules have amended some of these grounds, but not for Doe defendant practice—you have up until the start of trial (i.e. you are allowed full discovery time) to identify potential Does.


Arbitration saves time and money, it is binding and final and doesn’t get the court involved. Arbitration only involves a court when:

  1. A party refuses to arbitrate—then the court can force them.

  2. When the arbitrator renders an award, a party can go to court to get the award confirmed at which point it’s a court order. The other party may want the court to vacate the award at this time.

Remember—a court won’t raise the arbitration clause on its own; it is something that the parties need to raise. i.e. just because there is an arbitration agreement doesn’t mean that you have to go to arbitration if neither party wants to.

Moncharsh v. Heily: The court cannot review an arbitrator’s decisions for errors of fact or law, even if the errors are apparent on the face of the award. These are acceptable risks to the benefits of arbitration. There are exceptions:

  1. A statutory right in arbitration—i.e. employment discrimination. The court can review this kind of ruling for errors.

  2. Where the parties agree that the arbitration is not final.

  3. There are also statutory grounds—i.e. where the arbitrator has exceeded his or her powers (their powers come from the arbitration agreement itself); remember that an error of law is not enough!

If you challenge the validity of an arbitration clause, you have to raise this before the court before you go to arbitration!! Pg. 1056—if you claim fraud in inducement of the contract, however, then this claim can be arbitrated. If you claim fraud in the execution of the contract then you have to raise this issue before the court. If you are arguing that a certain provision other than the arbitration clause was invalid, then this goes to the arbitrator.

If you raise execution (i.e. you didn’t know you were under K), or invalidity of the arbitration clause, that goes to the court. If you raise inducement or invalidity of another provision of the K, that goes to the arbitrator.


Advanced Micro Devices: When does an arbitrator exceed his powers? The arbitrator’s powers come from the K—if the K doesn’t explicitly lay them out, then the arbitrator’s award must bear a rational relationship to the contract and to the breach—the catch being they must relate to the contract and the breach, as the arbitrator interprets them. An award is rationally related to the breach if it’s aimed at compensating and alienating the effects of the breach. So long as this is satisfied the arbitrator has not exceeded his powers.

The arbitrator is not limited to the kind of relief that a court could award for breach of a contract—they can use notions of equity also.

If the arbitrator didn’t use the contract, but look at extrinsic considerations to fashion the remedy, then you could argue that under the above standard the award doesn’t bear a rational relationship to the K, and thus the arbitrator exceeded his powers (i.e. if he awarded football tickets for a breach of K.)

The arbitrator’s powers come from the K itself. What if the clause says, “arbitrator is limited to relief a court could give”? Watch out! If the arbitrator did this anyway, it would be an error of law/fact that can’t be reviewed! And you can’t argue that it’s not rationally related to the breech!

If you really want to limit them, then you should name the types of awards they can’t give explicitly (then if they did it would be acting beyond their power.)


With cause, you can challenge a judge on the basis of bias. If you do this, then the judge must look at the situation and determine what the average person on the street would think about whether the judge lacked impartiality.

However, you don’t always have to have cause to bring a challenge to the judge. Each side gets on preemptory challenge to a judge that can be used for any reason.


Under the CA Constitution you have a right to a jury trial for a case at law, but not equity. You look at the gist of the action to determine if it’s one on law or equity.

In a non jury trial, when the court makes a decision in a non-jury trial they don’t automatically enter a statement of decision. The parties have to request it. If you do have a jury trial, the judge can still take the case away from the jury using a nonsuit, a directed verdict, or judgment nov.

Motion for a New Trial: Statutes have the exclusive grounds for new trial—there is no common law doctrine on which to get a new trial. The court cannot raise it sua sponte—it has to be raised by one of the parties.

However, on appeal the appellate court can affirm a new trial order on different grounds than the trial court (however, the appellate court can only use grounds that were raised in the motions of the party.) HOWEVER, if the parties have raised insufficiency of evidence or inadequate damages in the motion for a new trial, this can only be considered by the appellate court if it was the basis of the trial court’s order (i.e. insufficiency of evidence and inadequate damages are two things that can really only be properly assessed at the trial court level.)

Sanchez-Corea v. Bank of America: Here, the defendant filed a motion for a new trial on six grounds, including insufficiency of evidence and inadequate damages. A trial court must issue an order for a new trial within sixty days of the notice of entry of judgment. That order must contain the grounds on which a new trial is granted.

Here, sixty days after the notice of entry of judgment, the trial court granted the motion, but didn’t specify any grounds. A week later, a new order was issued that said that insufficiency of evidence was the only ground that the new trial motion was granted on; but remember, the grounds for a new trial must be released within the sixty days.

On appeal, the trial court could not find any other grounds on which to affirm the order, and COULD NOT use insufficiency of evidence because the only way they could do this was if the trial court had relied on it.

The only way this would be an exception is in a case like LaMann, where insufficiency of evidence was the only ground raised in the party’s motion—in this case it’s obvious that the trial court has relied on insufficiency of the evidence. But not here, where the trial court had many grounds to choose from, and didn’t timely choose from any of them.

Remember, only the trial court can prepare the order for a new trial—and it must be done in sixty days, or else it’s denied.

Dominguez c. Pantalone: On insufficiency of evidence, the court should be deferential to the jury’s determination of credibility and evidence. i.e. the judge should not grant a new trial based on insufficiency of evidence just because he himself would have reached a different conclusion as to credibility and evidence.


The default is that each party pays for their own atty. However—there are over 300 fee shifting statutes, there are common law exceptions, and you can contract around this; so there are any number of ways to get around the default.

Statutory Fee Shifting:

CCP § 1717—If you have made a K with fee shifting on K claims, that provision must be reciprocal. This only applies to K claims—not all claims arising out of the K.

Moallem v. Coldwell Banker: Here the plaintiff won on the tort claim, and the defendant won on the contract claim. Both of the parties moved for atty fees.

The contract here had a provision that was broad enough to include both contract and tort claims arising out of the contract, but it was only one sided—it only applied to Coldwell Banker.

Here, the plaintiff can’t recover—§ 1717 reciprocity only applies to K claim, the plaintiff won on tort, not the K claim; the tort provision was one sided, and there is no statute that makes it reciprocal.

If the defendant (Coldwell) had appealed on fees for being the prevailing party on the K claim, then you would apportion the time that was spent defending the claim between the contract claim, which they won, and the tort claim, which they lost.

Whenever there is fee shifting, the court uses the lodestar method—it is the hours the atty worked on the case multiplied by a reasonable hourly fee. So, whenever one party is trying to recover atty fees from another, if they are successful then the court will look at the hours they’ve spent, and decide was a reasonable hourly rate is.

Common Law Fee Shifting:

There are fee shifting provisions at common law, including the Common Fund Theory, which applies to a case that creates a fund of money from which others derive benefits (i.e. others that aren’t involved in the litigation.) In these class actions the atty fees come from the fund itself.

CCP § 1021.5—This is the codification of the Equitable Private Atty General Theory. For this, there must be an important right at stake—it must confer a significant benefit on the public, and the financial burden of it must exceed the private benefit. It’s easy to establish the equitable private atty general theory when you are getting relief like an injunction, however it’s harder when you’re seeking relief like money damages. Note that here—unlike common fund—the burden of bringing this litigation outweighs the monetary benefit.

§ 1021.5 is preferable to the common fund theory for recovering atty fees.

Beasley v. Wells Fargo: If you want § 1021.5 to apply then the financial burden of the litigation must have outweighed the monetary benefit—how do you determine this?

You take the estimated value of the case, which is the actual recovery subtracted by the probability of success of winning the case at the time that critical decisions were made. Therefore, you take $5.2mill multiplied by 50% (or 30%, whatever the probability was—it just happens to be 50% here), and this equals $2.6mill. You take this number and compare it to actual litigation costs, which here was $1.4mill. The value in this case is twice as much as the cost. It is a very close call, but the court still decides that this case falls under §1021.5.

If this approach doesn’t work, then you have a common fund instead, and you just draw out of that.



You are entitled to post judgment interest that is measured from the time of entry of judgment up until when the judgment is satisfied. The statutory rate is currently 10%

You can also have prejudgment interest, which comes from these statutes:

CC § 3287(a)—mandatory where damages are certain.

CC § 3288—discretionary in any non contract actions anytime the court thinks it would be appropriate. Under this you can get prejudgment interest from a time before you would be able to get under § 3287(a).

CC §3291—personally injury/tort. This applies only with respect to offers of judgment.

Stein v. Social Edison: In this case there was a fire. The plaintiffs say that the fire resulted from a faulty meter. The case goes to trial and the jury finds for the plaintiff and awards over $43k in prejudgment interest.

Under § 3297(a), you award prejudgment interest from the time that the damages were certain. Whether the defendant knows that amount owed and whether they would be able to compute damages—focus on what the defendant knew, and when the defendant knew it.

The amount of damages was never in dispute in this case. From the first time than that the plaintiff gave notice, through the proceedings, and into the verdict, the damages claimed were always the same. The defendant contested liability but they never contested the amount that was owed. When did the defendants therefore first have absolute notice?—when the plaintiff filed the complaint.

Because this is not a contract claim, the court also has discretion under § 3288 to fix prejudgment interests even earlier. The court doesn’t consider this here because the plaintiff had to request § 3288 in the pleadings/complaint before the verdict for the court to consider it.

Levy-Zenther v. Southern Pacific: This was another fire case. Before the complaint was even filed, the plaintiff provided the defendant with two expert estimates about the amount of the loss. The amount was consistent up until the verdict. The plaintiff can now get prejudgment interest from before the complaint! Demand letters with damage details in them are a good way to do this.

Unliquidated Cross Claims: Sometimes the defendant may file a cross complaint with damages to be fixed by the finder of fact. The plaintiff’s damages are still considered certain, even though the defendant’s cross claim raises questions about his ultimate recovery.

Wisper Corp. v. CA: Here, the plaintiff’s total loss was undisputed, but there were questions regarding the plaintiff’s comparative negligence. In this case, the damages aren’t considered certain. You can argue that this situation is very comparable to an unliquidated cross complaint, but right now there is still a distinction drawn between a plaintiff’s comparative negligence, and a defendant’s separate cross claim.


The recovery of costs in California is statutory—see pg. 1239 for a complete list.

§ 1033.9(d)—things that you cannot recover for, i.e. expert witness testimony.

§ 1033.5(c)—things that are not explicitly allowed or unallowed are given at the court’s discretion.

After trial, the prevailing party can recover their costs. What is the prevailing party? A prevailing party has net monetary recovery, or it can be the defendant where a dismissal was entered.

McLarand v. Downey: The plaintiff files a complaint, and loses. The defendant had filed a CC, and they also lost. Who is the prevailing party in this situation?—the defendant is, even though the plaintiff successfully defended against their CC.

Pirking v. Dennis: The plaintiff has an action against multiple defendants. The plaintiff settles with some of them, and then goes to trial against the others. The verdict comes back for the plaintiff but, after you offset the amount of the plaintiff’s settlements, the plaintiff doesn’t recover anything from the defendants that were at trial. The plaintiff is still considered the prevailing party, even though they didn’t get money from the trial. This means that they can still recover costs from the nonsettling defendants at the trial.

Offers of Judgment: Under § 998, an offer of judgment is a formal settlement proposal. There is a penalty if you reject and offer and then don’t do better at trial.

Defendant Offer: If the plaintiff rejects the offer and then fails to get a more favorable judgment, then the plaintiff does not recover his post offer costs AND shall pay the defendant’s costs from the time of the offer. Read this over carefully for information on what “favorable” is.

Plaintiff Offer: If the defendant rejects the offer and doesn’t get a more favorable judgment, then the plaintiff already recovers costs as the prevailing party. Then can also get a reasonable sum for expert witnesses.

Under § 3291 (see above under atty fees), judgment interest is at 10% from the date of the plaintiff’s first § 998 offer. This is not discretionary. If there is another statute that allows even earlier interest, then you can use that instead (i.e. it’s also not preemptive.)

Stallman v. Bell: The plaintiff makes a § 998 offer for $225k where each side will bear its own costs. This is rejected. The jury then comes back with a verdict of $224,500. The plaintiff seeks costs and prejudgment interest under § 3291.

The defendant argues that the § 998 offer was invalid because it was joint and you can’t determine which party did better at trial. However, the court here says that the plaintiffs were really one party anyway—the offer was unitary, and the verdict was unitary.

Therefore, did the plaintiff get a more favorable judgment?

If you are looking at a defendant’s offer to a plaintiff, then you only add the pre-offer costs to the final verdict to determine if the plaintiff got a more favorable judgment—i.e. not all the costs that are ultimately awarded by the jury.

If you are looking at a plaintiff’s offer to a defendant, then you add both pre and post offer costs to the final judgment to determine if the defendant got a better verdict.

However, in this case because of the language of the offer, the plaintiff gave up the costs before the offer! They still have a more favorable judgment, just looking at post offer costs, but all the same don’t construct an offer like this! Here, the plaintiff gets 10% from the date of the § 998 offer under § 3291.

Poster v. SoCal: When is a § 998 offer operative? If the plaintiff/defendant serves a § 998 offer and the other side counteroffers, then this doesn’t reject the first § 998 offer.



CCP § 904.1 deals with appeals from unlimited superior court cases.

UAP-Columbus v. Nesbitt: If something is not a final judgment, then it’s an interlocutory judgment that—by default—can’t be appealed right away unless there’s a specific statute allowing it.

In this case, the judge issued a statement of decision in March of 1990—it divided the fund in an interpleader action. The court didn’t address the atty fees and costs issue. In July of 1990, the court awarded atty fees and costs. Nesbitt then appealed, 1) the apportionment of the fund, and 2) the award of fess. The timeliness of the appeal depends on when the final judgment was.

The court says that a judgment is final when no further judicial action by the court is essential to the final determination of the rights of the parties. However, the best way to look at it is that a judgment is final when there has been a final decision on the merits, so that there is nothing left to be done on the merits of the case. Look at the substance of the decision—it doesn’t matter whether the court says that a decision is final or not.

Here, the appeal on the merits was not timely. But it was okay for the fees—under CCP § 904(a)(2) when you have an order after a final judgment that order itself can be appealed. The atty fees are a classic example of this.

Laraway v. Pasadena School District: If the court issues an “order” that disposes of the merits then that is a final judgment, not matter how the lower court characterized it. Always look at the SUBSTANCE of the decision.

Griset v. Fair Political Practices: The plaintiff had several causes of action; the court only rules on some, but rejected the first amendment argument. Because that argument was essential to the remaining CoAs, this should be treated as a final judgment. Not appealing will mean losing the ability to appeal.

You can no longer immediately appeal “independent” issues—

Morehart v. County of SB: When you are dealing with the same parties, you have a final judgment only when there is nothing left to be determined on the merits. It used to be that if you had resolved one issue that was independent from the others, that issue was appeasable immediately. Not anymore—now, you have to wait until all the merits of the action have been resolved in order to appeal.

Contract this to federal rules—under FRCP 54(b), the lower court can designate a partial resolution of the claim as a final judgment that can be appealed immediately.

There are two situations that authorize immediate appellate review when only some of the issues have been decided:

  1. Collateral Matter Doctrine—when the court issues an interlocutory order on a collateral matter that is dispositive of the right of the parties on that order, then you can appeal. The issue must be independent of the merits of the action—i.e. order for monetary sanctions, reducing spousal support, etc. If you’re not sure it’s a collateral matter, then appeal to be safe. See Pg. 1331.

  2. Multiple Parties—when a decision is final as to one or more, but not all of the parties; i.e. D1-D3, the case of D2 and D3 are decided then they can appeal now, and don’t have to wait for D1. This most often comes up when the court denies class action certification.

Once your time to appeal has expired, the appellate court no longer has jurisdiction to hear your claim. If you file too early, the court will hold the notice until it’s timely, or treat it as a writ petition.

Sullivan v. Delta Airlines: When you file a notice of appeal too soon, you can still get appellate jurisdiction by asking the superior court to dismiss the unresolved CoAs, or waive the other CoAs on appeal.

Pg. 1337 Notes for CCP § 904.1(a)(3)!

In Re Marriage Ananeh-Firempong: There is a dissolution of marriage. At trial, the plaintiff asks for a statement of decision about the valuation of his medical practice. The court doesn’t issue it because it was requested orally, however the court of appeals here says that this was reversible error.

There was also an issue about the car, but no statement of decision was requested or issued. Without a statement of decision, the appellate court assumed that the superior court made the proper factual findings—i.e. believing W over H.

If you are going to appeal based on an argument that the factual findings are not supported by evidence then you need a statement of decision.



Writs get immediate appellate review of a superior court decision. Many are filed, and few are granted. Writ review is discretionary—in the standard situation the court has no obligation to actually consider the petition. You can also use the extraordinary writ in situations where the statute regarding appeal doesn’t give you the right to appeal

You file a petition when you want the writ, and the higher court issues the actual writ, which is the document telling the lower court what to do. The petitioner is the one filing the petition, the respondent is the court, and the real party in interest is the opposite party. An alternative writ means that the lower court must show cause for its decision—granting this means that the procedural prerequisites to the writ of been satisfied, and the real party in interest should get ready to defend on the merits. A preemptory writis an actual ruling on the merits.

Statutory writs are extraordinary writs that have been authorized by statute—these are usually the only means of appellate review for these issues. Pg. 1391—i.e. if the court denies a motion to quash (jurisdiction) then you need to file an extraordinary writ. You cannot appeal at the end of the case. Statutory writs are not discretionary! The court mustaddress these writs on the merits.

There are different types of writs, when you file a petition for a writ, you should request a “writ of X, or other appropriate writ.”

Prerequisites to Filing a Writ:

  1. An inadequate remedy at law—i.e. there is no other way to have the issue heard.

  2. Irreparable Injury—i.e. if you have to appeal at the end of the case it won’t undo the harm that will be done.

  3. OR—a statutory writ (for an issue that requires a writ for appellate review.)

Omaha Indemnity v. Superior Court: The insurance company here wants a trial separate from the one for liability. The trial court denied the motion with prejudice­—if it hadn’t been with prejudice, then insurance company could have just renewed the motion later.

SavOn v. Superior Court: Irreparable injury includes a writ appealing a discovery order where you claim the atty client privilege.

Brandt v. Superior Court: Irreparable injury is not an idea set in stone—here, and in Omaha, the potential need of a new trial is enough for a finding of irreparable injury.

Palma v. US Industrial: This is a statutory writ situation. The court of appeals entered a preemptory writ without first doing an alternative writ.

If the court wants to forego the alternative writ then they need to give notice to the real party in interest that they are considering issuing a preemptory writ. This is called Palma Notice.

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