Term
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Definition
Can P sue D in THIS STATE?
Whether there is personal jdx is a 2-step analysis:
(1) Satisfy a statute (e.g., long arm statute) AND
(2) Satisfy the Constitution (Due Process) |
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Term
| Is the personal jurisdiction analysis different depending on whether the case will be filed in federal court or in state court? |
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Definition
| NO- it is the same 2-step analysis for both (satisfy a statute, and satisfy the Constitution*) |
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Term
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Definition
| P wants to impose a personal obligation on D. Jurisdiction is OVER THE PERSON, not her property, b/c of some contract between D and the forum state. |
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Term
Rule: Most states have a series of statutes that allow personal jurisdiction in different situations, such as personal jdx over Ds who:
(1) _________ OR
(2) _________ OR
(3) _________. |
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Definition
(1) are served with process in the state or
(2) are domiciled in the state or
(3) do certain things (e.g., commit a tortious act, or conduct business) in the state. |
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Term
| In CALIFORNIA, though, the statutory IN PERSONAM JDX is easier. Why? |
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Definition
Because the statute reaches the constitutional limit.
Write:
"Cali can exercise power to the Constitutional limit." |
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Term
CONSTITUTIONAL ANALYSIS. International Shoe.
What is the Constitutional Analysis TEST that Cali and federal courts follow? |
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Definition
Constitutional Analysis Test =
does the D have "such minimum contacts with the forum so that exercise of jdx does not offend traditional notions of fair play and substantial justice?"
Examples of Traditional Bases that meet the Constitutional Test:
If D is DOMICILED in the forum, or
If D CONSENTS to be sued in the forum, or
if D is present in the forum when served with process (at least if not forced or tricked into the forum). |
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Term
| Factors in the Constitutional Analysis |
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Definition
(1) CONTACT- there must be a relevant tie between D and the forum state. There are two sub-factors relevant here:
(a) the contact must result from PURPOSEFUL AVAILMENT (D's voluntary act) (i.e., D must reach out to the forum).
Examples of purposeful availment = trying to
make $ in the forum state, using the state's
roads, causing some effect to occur in the state.
(b) Foreseeability- it must be foreseeable the D could get sued in this forum.
(2) FAIRNESS (fair play and substantial justice)- If there is a relevant contact, then assess fairness. Factors include:
(a) Relatedness between the contact and P's claim (Ask: does the P's claim arise from the D's contact with the forum?) If YES --> specific jdx; if NO --> it is okay if the court has general personal jurisdiction (meaning the D must have continuous & Systematic ties with the forum).
(b) Convenience- D may complain that the forum makes it tough to litigate b/c its far from D's home and maybe it's hard to get D's witnesses and evidence to the forum.
Standard = the forum is OKAY unless it puts D at a severe disadvantage in the litigation.
(c) State's interest (e.g., provide forum for its citizens) |
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Term
| PNEUMONIC OF CONSTITUTIONAL TEST: |
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Definition
My Parents Frequently Forgot to Read Child's Stories.
Minimum Contacts
- purposeful availment
- foreseeability
Fair play & substantial justice
- relatedness of contact and claim
- convenience
- state's interest |
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Term
| Note: an interactive website can be purposeful availment. |
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Definition
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Term
| IN REM & QUASI IN REM JDX |
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Definition
| Here, jdx is not over the D herself, but over her property in the forum. The statutory basis is an attachment statute (e.g., allowing court to attach property claimed by non-resident). Constitutionally, SCOTUS held that in all cases, even in rem and quasi in rem, D must satisfy the International Shoe test. SO the constitutional analysis is the same as in personam. |
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Term
| The next set of cards considers SUBJECT MATTER JURISDICTION |
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Definition
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Term
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Definition
| The Superior Court has general subject matter jurisdiction. Meaning, generally, the court can hear ANY civil case. |
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Term
| What kinds of cases can the Superior Court NOT hear? |
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Definition
Some federal questions, including:
- bankruptcy
- federal securities and antitrust
- patent infringement
Otherwise, the Superior Court can hear any case, including cases that would invoke federal question or diversity of citizenship jurisdiction. |
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Term
| Within the Superior Court, there are different classifications of cases. List all 3. |
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Definition
(1) Limited Civil Cases
(2) Unlimited Civil Cases
(3) Small Claims Cases |
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Term
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Definition
Limited Civil cases are civil cases in which the amount in controversy does not exceed $25,000.
In a limited civil case, generally the court cannot grant a permanent injunction or declaratory judgment or determine title to land. Also, there is a limited discovery and you cannot file a "special demurrer."
Key Limitation = no claimant can recover MORE THAN $25,000. |
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Term
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Definition
Unlimited civil cases include civil cases in which the P seeks general equitable relief (like a permanent injunction or declaratory judgment). In a case seeking damages, it is unlimited if the amount in controversy exceeds $25,000.
Claimant can recover any amount. |
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Term
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Definition
Small claims cases are heard in a small claims division of the Superior Court. Procedures are simple.
The AMOUNT IN CONTROVERSY requirements are:
- for INDIVIDUALS $7,500 or less.
- for ENTITIES $5,000 or less. |
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Term
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Definition
P initially determines what kind of case it is.
In doing so, P should consider the "amount of the demand, or the recovery sought, or the value of the property, or the amount of the lien" in controversy. This does NOT include attorney's fees, interest on the claim, or costs. It is the claim alone.
If the P files a limited civil case, she must note the classification in the caption of the complaint. If the caption says nothing, it is an unlimited case. |
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Term
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Definition
| If a case is misclassified or if subsequent events make it clear that the original classification should be changed, the court does NOT lose subject matter jdx, instead the case is RECLASSIFIED. |
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Term
| AUTOMATIC RECLASSIFICATION |
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Definition
| IF P amends her complaint in a way that changes the classification (raises or decreases the amount in controversy from limited to unlimited or unlimited to limited, THEN the clerk of the court reclassifies the case automatically. |
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Term
| RECLASSIFICATION ON MOTION |
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Definition
A party may move to reclassify. Or the court can reclassify on its own motion.
What is required = the court must give notice to all parties and hold a hearing (DP). |
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Term
| In determining whether to reclassify an the court consider the merits of the underlying claim? |
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Definition
| NO- we will not try the case to determine classification. |
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Term
| Can the court consider materials beyond the pleadings, such as a judicial arbitration award and settlement conference statement to determine whether to reclassify? |
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Definition
| YES- the court can look beyond the pleadings & in fact, it must look at a judicial arbitration award. |
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Term
If there is a motion to reclassify, the court may reclassify from UNLIMITED to LIMITED when the judge is convinced that the matter
(1) _______________ OR
(2) _______________. |
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Definition
(1) will necessarily result in a verdict of $25,000 or less OR
(2) more than $25,000 is virtually unobtainable. |
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Term
| If there is a motion to reclassify, the court may reclassify from LIMITED to UNLIMITED when the judge is convinced that ________________________. |
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Definition
| there is a possibility the verdict will exceed $25,000. |
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Term
| EFFECT OF MULTIPLE CLAIMS RULE |
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Definition
Effect of multiple claims rule = the entire case is either limited or unlimited. SO no case is mixed, with some limited and some unlimited.
Ex: P asserts 3 unrelated claims against D. One for 12K, one for 8K, and one for 6K. Can this be filed as an unlimited civil case? YES- we aggregate P's claims if it is one P v. one D. |
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Term
Assess the following:
P1 asserts a claim of $26,000 against D and P2 asserts a claim of $14,000 against D in the same case. Can this be filed as an unlimited civil case? |
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Definition
| P's claim is unlimited, so the whole case is unlimited. |
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Term
| The next set of cards consider VENUE. |
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Definition
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Term
| In federal court, we lay venue in an appropriate federal district. What is the relevant place for laying venue in state court? |
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Definition
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Term
| What are the 3 LOCAL ACTIONS? |
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Definition
(1) cases for recovery of land OR
(2) cases for determination of an interest in land OR
(3) cases for injury to land |
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Term
| In a local action, we lay venue in ___________________. |
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Definition
| The county where the land lies. |
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Term
| If it is not a local action, it is a TRANSITORY ACTION. What are the 3 venue choices for transitory cases? |
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Definition
(1) General rule: venue is okay in a county where D resides when the case is filed.
(2) Additional venue in K case: venue is also OK in the county where the K was entered or to be performed.
(3) Additional venue in personal injury or wrongful death: venue is also OK in the country where the injury occurred. |
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Term
| If D is a corporation, where is venue okay? List all 3. |
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Definition
Venue is OK in the county where:
(1) it has its principle place of business, OR
(2) where it entered or is to perform a K, OR
(3) where the breach occurred or liability arises. |
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Term
| If D is an unincorporated business, where is venue OK? |
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Definition
| Venue is OK in a county of principle place of business if that is on file with the secretary of state. Otherwise, where any member or partner resides. |
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Term
| What if all Ds are non-residents of CALI, then where is venue OK? |
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Definition
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Term
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Definition
| moving a case from Superior Court in one county in California to the Superior Court in another county in California. |
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Term
| When does the D move to transfer venue? |
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Definition
| If the original venue is improper, D can move to transfer to a proper county. This motion should be made before the D's answer, demurrer, or motion to strike. |
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Term
If the original venue is proper, a court may, on motion transfer if:
(1) _________________; or
(2) _________________; or
(3) _________________. |
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Definition
(1) There is reason to believe impartial trial cannot be had in the original venue; OR
(2) Convenience of witnesses and ends of justice would be promoted; OR
(3) No judge is qualified to act. |
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Term
| If the court grants the motion for transfer of venue, it transfers to a county on which the parties agree. What if they do not agree? |
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Definition
| then the court chooses the county. |
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Term
| INCONVENIENT FORUM (forum non conveniens) |
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Definition
| This is where a court dismisses (or stays) b/c the far more convenient and appropriate court is in a different judicial system (e.g., state court in Missouri or a court in a foreign country). |
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Term
| By statute in Cali, state courts may dismiss or stay on motion (by a party or by the court itself). It must find that __________________. |
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Definition
"In the interest of substantial justice an action should be heard in a forum outside of California."
The court looks at the same public and private factors as does a federal court:
-Public: things like what law applies, what community should be burdened with jury service, keeping local controversy in the local court.
Private: convenience -- where are the witnesses and evidence? |
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Term
| Note: if the court grants the motion for forum non conveniens, it may do so on condition (e.g., that D waive a personal jurisdiction or statute of limitations objection in the other forum). |
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Definition
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Term
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Definition
D must be served with process (summons and a copy of the complaint).
Any non-party at least the age of 18 may serve process. |
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Term
| Methods of serving process |
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Definition
Personal Service
Substituted Service (DISTINCTION from federal): Substituted service can only be used to serve an individual if personal service "cannot with reasonable diligence" be had. So you must try personal service first and only if not possible can you use substituted. |
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Term
| List the 4 Requirements for SUBSTITUTED SERVICE of Process. |
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Definition
(1) Must be made at D's usual abode or mailing address (no PO BOX)
(2) Must be left with a competent member of the household who is at least age 18
(3) That person must be informed of the contents; AND
(4) Process must also be mailed by first-class mail, postage prepaid to D.
Note: Substituted service is deemed effective 10 days AFTER MAILING. |
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Term
| How do you service Corporations and Other businesses? |
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Definition
Deliver process to agent for service of process or to an officer, or general manager. These people may be served personally or process left with someone apparently in charge at her office during usual office hours.
"The Registered Agent" (// federal rules). |
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Term
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Definition
(DISTINCTION)
Copy of summons and complaint and 2 copies of acknowledgement (waiver form) are mailed to D, with self-addressed stamped envelope addressed to P. Works like waiver in federal court, except this is considered "service" and not "waiver of service." 2 points:
(1) D has 20 days (instead of 30 in fed ct) to return the form &
(2) Service is deemed complete when D executes the waiver. |
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Term
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Definition
| Only on affidavit from P's attorney that D cannot be served, after demonstrating reasonable diligence to serve D in another way. |
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Term
| SERVICE OUTSIDE OF CALIFORNIA |
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Definition
| can be made out of state in any manner allowed by CALI law or by mail, postage prepaid, return receipt requested. If by mail, deemed complete 10th day after the mailing. |
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Term
| IMMUNITY? Assess the following: D, a non-resident, is served with process in Bakersfield while in California to be a witness or party in a civil case. Is D immune from being served with process for a California state court case? |
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Definition
(DISTINCTION)
NO- California has abolished this immunity. |
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Term
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Definition
| As in federal court, subsequent documents can be delivered or mailed. If mailed, add 5 days to time required for response (10 days if out of state). In federal court, we add 3 days) |
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Term
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Definition
Timing and some terminology are different from federal court.
In state practice, we have:
- COMPLAINT
- ANSWER
- DEMURRER
- VARIOUS MOTIONS and
- CROSS-COMPLAINT. |
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Term
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Definition
| California uses "fact pleading" instead of "notice pleading." That means state court requires more detail in pleadings than in federal court. |
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Term
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Definition
There are two general statutes in state practice.
(1) CA has a statute that mirrors Federal Rule 11. It works just like federal rule 11, w/ 1 exception:
Different from fed ct: the 21 day safe harbor applies not only in motions brought by a party, but also when the court raises the issue on its own.
(2) Another CA statute allows the court to order a party or his attorney or both to pay expenses and attorney's fees incurred by another party b/c of bad faith or frivolous tactics IN LITIGATION. |
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Term
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Definition
| Frivolous means something completely without merit or for the sole purpose of harassing an opposing party. There is no safe harbor, and the motion can be filed IMMEDIATELY. There must be a motion (by party or the court) and opportunity to be heard. |
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Term
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Definition
| A complaint is a pleading by the P. As in federal court, filing commences the action. |
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Term
| What are the contents of the COMPLAINT? |
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Definition
(1) Statement of facts constituting the cause of action
(2) demand for judgment for the relief to which the pleader claims to be entitled.
- Except: in personal injury or wrongful death cases, the P is forbidden from stating a damages amount in the complaint.
- Except: whenever P claims punitive damages, she is forbidden from stating the amount in the complaint. |
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Term
| In a personal injury or wrongful death case, how can D find out about the amount of actual damages? And anytime there's a claim for punitive damages, how does D find out about the amount? |
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Definition
1. The D requests a Statement of Damages.
2. P must provide SOD within 15 days.
IF P fails to provide the SOD, D can move for a court order requiring P to do so. |
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Term
| Also, in a personal injury or wrongful death case, any anytime P seeks punitive damages, what must P do before taking D's default? |
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Definition
| P must serve the the statement of damages on the D, even if D didn't request it. |
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Term
| What does the requirement of "fact pleading" mean for the P? |
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Definition
(DISTINCTION)
She must allege the ultimate facts on each element on each cause of action. |
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Term
| HEIGHTENED PLEADING REQUIREMENTS |
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Definition
| Circumstances constituting fraud must be pleaded with particularity. So must these: civil conspiracy, tortious breach of contract, unfair business practices, and product liability claims among multiple Ds resulting from exposure to toxins. |
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Term
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Definition
| If a P is genuinely unaware of the identity of a D, she may name the D as a "Doe" defendant. She must also allege that she is unaware of the D's true identity and must state the cause of action against the Doe defendant (that's a "charging allegation"). |
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Term
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Definition
| These are signed under oath by the party. They are rare, but are required, for example, in shareholder derivative suits and for suits against gov't entities. Remember, verified pleadings can be treated as affidavits. |
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Term
| When does the Defendant have to respond to the Complaint? |
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Definition
| D must respond in an appropriate way within 30 days after service of process is deemed complete (21 days in federal). |
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Term
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Definition
(DISTINCTION)
A general demurrer can be used to assert some defenses, the most important of which is:
Failure to state facts sufficient to constitute a cause of action.
// Motion to dismiss for failure to state a claim. So the court takes factual allegations as true and limits its assessment to the complaint (and matters of which it takes judicial notice). If sustained, usually the court will let P try again. Can be aimed at the entire complaint or individual causes of action.
*watch for this to test substantive elements of a cause of action. |
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Term
| What else (other than failure to state facts sufficient to constitute a cause of action) can be raised by general demurrer? |
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Definition
| Lack of subject matter jdx |
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Term
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Definition
A special demurrer can be used to assert many (pretty minor) defenses.
Examples:
(1) the complaint is "uncertain, ambiguous or unintelligible." (// fed motion for more definite statement)
(2) the complaint is unclear about which legal theories of liability are asserted against each of the Ds.
(3) Lack of legal capacity
(4) Existence of another case between the same parties on the same cause of action.
(5) Defect or misjoinder of parties.
(6) Failure to plead whether a contract is oral or written.
(7) Failure to file a "certificate of merit."
Note: these defenses can be raised in the answer instead (except failure to file certificate of merit), and if they are not raised by demurrer or answer, generally they are waived.
Note: Special demurrers not available in LIMITED CIVIL CASES. |
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Term
| When is a CERTIFICATE OF MERIT required? |
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Definition
To sue architects, engineers, land surveyors for professional negligence. In such cases, P's attorney must file a certificate certifying that she consulted with a professional and there is reasonable cause to file the case.
Lack of certificate may be raised by motion to strike. |
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Term
| Rule: demurrers are sustained or overruled, unlike motions which are granted or denied. |
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Definition
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Term
| MOTION TO QUASH SERVICE OF SUMMONS |
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Definition
Motion to Quash is used to assert the following defenses:
(1) Lack of Personal Jdx
(2) Improper Process
(3) Improper Service of Process
(special appearance)
*This motion must be made BEFORE or WITH a demurrer, answer, or a motion to strike, or else D waives these defenses. |
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Term
| If the court denies the motion to quash, D must plead within _____ ( # ) of days. |
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Definition
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Term
| If the court denies the motion, the only way to get appellate review is to seek a _________ from the Court of Appeal within 10 days of service of the written notice of entry of the order denying her motion. |
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Definition
WRIT OF MANDATE
Thus, you cannot wait until final judgment to raise the issue in the Court of Appeal. |
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