Civil Procedure Personal Jurisdiction Subject Matter Jurisdiction Joinder Venue Choice of Law Pleadings Discovery Pre-Trial Motions

Motions Trial Issues Post Trial Motions Final Judgment Rule Collateral Estoppel and Res Judicata California Specific Issues Personal Jurisdiction Personal Property Notice/Service Subject Matter Jurisdiction Exclusive Concurrent Supplemental Removal Joinder Claims Parties Class Action Venue Rules Challenging Improper Venue Change of Venue Choice of Law Erie Outcome Determinative CA Tort or Contract Pleadings Complaint Challenges to Complaint

Amendments Disclosure/Discovery Scope Automatic Devices Protective Order Sanctions Pre-Trial Conference Pre-Trial Motions 12(b)(6) Failure to State a Claim Judgment on the Pleadings Summary Judgment Default Judgment Dismissal Trial Issues Right to Jury Trial Law/Equity Distinctions Motion for Judgment as a Matter of Law Post Trial Motions Renewed Motion for Judgment as Matter of Law New Trial Final Judgment Rule Res Judicata Parties Claim Valid Final Judgment On Merits Collateral Estoppel Party in Prior Lawsuit Identical Issues Actually Litigated Necessarily Determined Full and Fair Opportunity to Litigate California Specific Arbitration Other Issues SLAPP

Personal Jurisdiction Power of the court to bind the person of the defendant. ~Personal Traditional: Personal Service (in state), Domicile (even if out of state, as long as personally served) o Court has the power over anything within its borders Citizens, visitors, land o General Appearance: Subjects D to Personal jurisdiction. Defendant appears when answers, demurs, files a notice of motion to strike, files a notice of motion to transfer, moves of reclassification, or gives the plaintiff written notice of appearance. o Consent: (1) Waiver by failure to raise objection in answer or motion/make motion to quash summons (Defendant can raise objection by either filing answer + motion to quash simultaneously or specially appear by filing motion to quash service of summons). (2) Express consent to a forum clause. o Motion to Quash CA: Court does not have jurisdiction over me, shifts the burden back to the Plaintiff. Non-Resident Defendant: For the court to have the power to bind Defendants not physically present in the forum (and over whom the court has no traditional basis). Due process requires the state trying to exercise jurisdiction over the person to have (1) A long arm statute (rule that gives the court jurisdiction) and (2) Meet the test in International Shoe. In CA court, raise if the fact pattern contains a motion to quash (where the Defendant challenges court authority to assert personal jurisdiction). o Long Arm Statute: This is the statute that authorizes the state forum to assert PJ with any basis consistent with the US constitution. Specific: State must follow its own rules and not exceed the limits of due process. Non Specific: To the extent of due process International Shoe test to show that statute does not violate due process. o Due Process International Shoe: Does Defendant have such minimum contacts with the forum that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice? Minimum Contacts: Does Defendant have minimum contacts with the forum, and were they continuous and systematic, or only sporadic? Purposeful Availment: o Quality and Nature of Defendants acts o Voluntary acts directed toward forum o Includes goods intentionally placed in the stream of commerce o If actual harm results, jurisdiction is established Foreseeability of a Lawsuit: Did Defendant anticipate his activities might lead to a lawsuit? Fair Play and Substantial Justice: Relatedness between claim and contact Plaintiffs interest in obtaining relief Burden on Defendant versus benefit Defendant obtained from state State Interest General Jurisdiction: Continuous activity in the forum may subject Defendant to jurisdiction even if the claim is unrelated to the activity Specific Jurisdiction: Even sporadic activity may subject Defendant to jurisdiction if the claim arose out of that activity. ~Property In Rem: Power of court to render a judgment that binds property based on the presence of the property in the state. This includes stocks, real property and personal property. Adjudicates right of all persons with respect to property. The power of the court will be limited to value of the property. (Its mine and no one elses)

o Applies: (1) Where Defendant not subject to PJ and (2) Where ownership of property is at
issue. Examples: to quiet title, to clear cloud on title, or adjudicates right of Plaintiff versus all others. o Elements: Notice, Opportunity to be heard, Proof by Plaintiff, Plaintiff posts bond, and judicial order Quasi In Rem: o Versus Specific Defendant: The underlying issue/dispute is involving the property. (Quiet title, foreclosure, set aside fraudulent conveyance, specific performance) o Jurisdiction over Property: Plaintiff gets jurisdiction over property as substitute for PJ over Defendant, the property is attached. Claims unrelated to property Remedy limited to value of property Adjudicates rights of specific persons minimum contacts ~Notice/Service Reasonably Calculated to Appraise: To have PJ, due process requires that the Defendant be given notice + opportunity to be heard. Notice must be given in such a manner that it is reasonably calculated to appraise interested parties of the pendency of the action and afford them the opportunity to present their objections. o Summons (formal notice of suit) + Complaint (process of complaint) o 120 Days to serve process after filing complaint, or case dismissed with prejudice. CA within 3 years after filing, unless fast track, then as little as 60 days after filing each jurisdiction decides time May Serve By: o Personal Service (hand deliver) o Abode Service to suitable person (age, discretion) and to Defendants usual abode o Substituted Service Defendants authorized agent o Personal Service if not personal called substituted o Substituted Service Must show reasonable diligence for personal service Summons and complaint to Defendants usual abode, to a suitable person or person apparently in charge at office during normal hours; and Mail copies to address at which docs were served o Service by Publication for in rem Waiver by Mail: Waiver of service must be requested by Plaintiff Defendant then gets 60 days from date of mailing instead of 20, as long as Defendant acknowledged in writing. Defendant must acknowledge waiver of service within 30 days by 1st class postage. If no waiver, Defendant must pay cost of service. Defendant has 20 days from date of mailing or is liable for service costs. Subject Matter Jurisdiction Power to hear the kind of claim being brought must either be a federal claim or diversity case. Lack of SMJ it cannot be waived and the issue can be raised at any time during course of claim, even at Supreme Court level. CA As in federal, its the power of court over a cause of action or to act in a certain way. Superior courts have jurisdiction over all cases not assigned to other trial courts by statute. Cases are either limited (>5k <25k) or unlimited (>25K) Exclusive: Admiralty, Bankruptcy, Patent, Copyright, Anti-Trust. Can only be held in Federal Court. Concurrent: o Federal Question: Arises under Constitution, laws or treaties of US. CA no federal question issue: CA courts can hear federal question cases unless exclusive federal jurisdiction. o Diversity: Amount in Controversy and Complete Diversity. o California: Three kinds of trial jurisdiction limited, unlimited and small claims.

Unlimited: More than 25k or claim for equitable relief.

Limited: Less than 25k Supplemental: Each claim must have its own basis for jurisdiction. Where the court has original jurisdiction, it has supplemental jurisdiction over all other claims that are so related that they form part of the same case or controversy (includes claims that involve joinder or intervention). o If Federal claim, federal claim must be substantial. Supplemental claim must form part of same controversy same transaction or occurrence and common nucleus of operative facts. o Discretionary: Court may decline where claim raises novel or complex issue of state law, claim substantially predominates over main claim, court has dismissed original claim, or for compelling reasons (rare). Removal: A Defendant may remove a case to the federal court in the state where the claim was filed provided that the case could have initially been filed in federal court and the claim for removal is brought by all Defendants within 30 days of filing of the complaint or pleading which trigger the right of removal. o Diversity Cases: No removal if any Defendant is a citizen from forum. o CA Reclassification:

Unlimited to Limited: Must be done prior to time to respond to complaint standard the court will follow is that the verdict will necessarily fall short of 25k. Limited to Unlimited: Must be done prior to time complaint may be amended, or any time by judge, or any time by judge standard the court will follow is that there is a reasonably possibility of more than 25k. Factors: Amount demanded, statement of damages, rejection arbitration award, and settlement negotiation

Joinder Multiple Plaintiffs: All Plaintiffs may join against a Defendant or Defendants if they assert a right to relief jointly, severally, or in the alternative or claim arises out of the same transaction/occurrence and they have at least one common question of law or fact. One Plaintiff Multiple Defendants: Plaintiff may join new Defendants if they assert a right to relief jointly, severally, or in the alternative or claim arises out of the same transaction/occurrence and they have at least one common question of law or fact. Counter Claims: Defendant asserts claim against opposing party. o Compulsory: A party must assert or waive their right to bring a compulsory counter claim. This is a claim that arises out of same transaction or occurrence. If it is not brought in the original action it may not be brought latter. o Permissive: It does not need to be asserted to be cognizable, usually because it does not arise out of the same transaction or occurrence. To bring the claim it still must satisfy SMJ and there is no supplemental jurisdiction. o CA Cross Complaint: If it arises out of same transaction or occurrence and must assert or it is waived. Cross Complaint: Claim against a co-party --- D1 v. D2. Must arise out of same transaction or occurrence. Court will assert supplemental jurisdiction. Permissive Party: A party can join an action if the claim arises out of same transaction or occurrence or it concerns one common issue of law or fact. Compulsory Party: o Necessary: A party is necessary where the court cannot afford complete relief without the party or there is a danger that the absentee will be harmed, there may be an inconsistent judgment or there may be a possibility of double liability. Ought to be joined if possible. o Indispensable: A party whose joinder will destroy diversity. The court may dismiss the case or proceed without the party. Courts will weight factors in determining whether to proceed without a necessary party, such as; alternate forum, likelihood of prejudice, chance of inconsistent judgment.

Impleader: A procedure by which a third party is brought into a lawsuit, especially by a defendant who seeks to shift liability to someone not sued by the plaintiff, also termed third party practice. Citizenship of the new party does not affect the courts jurisdiction over the main claim, complete diversity is necessary only for the original parties. The court will assert supplemental jurisdiction. Intervention: The entry into a lawsuit by a third party who, despite not being named a party to the action, has a personal stake in the outcome. Of right must be allowed because party will be harmed; federal court will assert supplemental jurisdiction unless it destroys diversity. Permissive must have independent source of SMJ and there must be a common question of law or fact. Interpleader: A suit to determine a right to property held by usually disinterested third party (i.e. stakeholder) who is in doubt about ownership and who therefore deposits the property with the court to permit interested parties to litigate ownership. Allowed where party might be exposed to double liability. Consolidation: The court ordered unification of two or more actions, involving the same parties and issues, into a single action resulting in a single judgment or sometimes in separate judgments. This a permissive (discretionary) device used when there is a common question of law or fact pending before the same court. Contribution: Right of contribution among tortfeasors or contract obligors. Triggered when one tortfeasor/obligor pays the entire judgment rendered against all of them. Where each Defendant is liable for the entire amount of the judgment, a Defendant who pays it thus has the right to sue the other Defendant(s) for contribution. Class Action: Numerosity, Common Question of Law or Fact, Typicality, Adequate Representation. o Prejudice: Needed to avoid harm to party or class o Injunctive: Relief sought injunction or declaratory relief o Damage: Common questions predominate questions of law or fact common to the members of the class predominates over any question affecting any individual member. Must give notice to potential members --- tell them they can opt out, be bound if they dont opt out, and may enter separate appearance. o CA: Plaintiffs can aggregate individual claims against a Defendant. Trial judge must determine the choice of law issues as part of the certification process when granting class action status. California Complaint Cross Complaint Cross Complaint Cross Complaint Federal Complaint Counterclaim Third Party Complaint Impleader Cross Claim

PD P D PD&DC PD, DC, PC

Venue The proper or possible place for the trial of a lawsuit, usually because the place has some connection with the events that have given rise to the lawsuit. Can bring where (1) All Defendants reside or (2) Where the Claim Arose. If neither 1 or 2 will provide venue then --- Diversity: any district where any Defendant subject to PJ or Federal Question: Any district where any Defendant can be found. o Corporation: Residence any district where subject to PJ at time action commenced.

CA: Trial shall be in some Defendants county of residence, unless excepted. o Local versus Transitory: Classification made at outset of lawsuit, based on allegations in complaint. Local: Necessarily arisen in one place, venue is in that county (i.e. recovery of real property, injury to real property, foreclosures etc.) Transitory: Could have arisen anywhere, county of any Defendants residence at commencement of action.

Mixed: Two or more claims or Defendants governed by difference venue provisions: (1) Defendants county of residence, unless suing under a statute provides Plaintiff with broad choice of venue for specific cause of action (i.e. employment, discrimination acts) (2) Special venue provision normally trumps the general Challenging Improper Venue: To challenge improper venue must do so in a pre-answer motion or answer to complaint if neither is done then it is considered waived. Venue for removal is the federal court of district where state action was pending. Change of Venue: o Inconvenient Forum: Common Law discretion to dismiss even if forum proper, because very inconvenient and there is a burden on Defendant. Factors in determining whether the forum is in fact inconvenient are --- (1) Convenience of the parties, (2) Location of Witnesses, (3) Location of Evidence, (4) State Interest, (5) Foreign Interest. o CA: Venue allocates the county where action will be heard, there is a strong presumption in favor of Plaintiffs choice. Forum non conveniens governs state or county. Equitable discretionary doctrine with factors: suitable alternate forum (must have), private interests of litigants, and public interest in keeping suit in CA. The proponent of the change has the burden of proof to show another state or country is preferable. o Transfer: Court may transfer a suit to any other district where the suit originally might have been brought, for the convenience of the parties and interests of justice. It is not a dismissal it is a transfer. CA No requirement the transfer be to a court in which it originally could have been brought. Fed can transfer across state lines, state cannot. Factors: Ends of Justice requires and there is an alternate forum or all parties consent. Also, residence of parties, location of witnesses, costs, access to evidence, enforceability of judgment.

Choice of Law In a diversity case, Federal Court must apply the state substantive law and the federal procedural law. Twin policies of discouraging forum shopping and inequitable administration of laws. Erie: State substantive + Federal Procedural (discourage forum shopping and inequitable administration of justice). If unsure, apply outcome determinative test. Outcome Determinative: Would applying the Federal rule or State rule affect the outcome? Yes apply state law it is substantive. No- apply federal law it is procedural. Choice of Law California California law will be applied unless challenged (proponent must show foreign law will further interest of foreign state), and then judge must chose between substantive law of CA and another state. Tort: CA law will be applied unless foreign law conflicts and both states have significant interests in having their respective laws apply. If so, then apply law of state whose policies would suffer the most. o Test: (1) Foreign law must conflict with CA law, (2) Both jurisdictions must have significant interests in having their law apply (a true conflict), and (3) Comparative impairment which has stronger interest? Contract: o No Choice of Law Clause: Use CA law, if challenged analyze like tort. o Choice of Law Clause: The general rule is the state law that is chosen by the parties will govern, unless exception applies. o Exception: Ask --- (1) Does chosen state law have any substantial relationship to the parties or their transactions? And (2) Is there any reasonable basis for parties choice of

law?

If NO to both, use CA Law If YES to either, then use CA if foreign law contrary to fundamental CA policy or use choice provision if no policy is threatened.

Pleadings Notice Pleading: Complaint must contain (1) Short plain statement of grounds for jurisdiction, (2) Short plain statement of claim showing pleader is entitled to relief (statement of facts), and (3) A demand for judgment. Under Federal pleadings must plead enough facts to make claim plausible. There is no need to state actual legal claim; may use ordinary (nonlegal) language. Must have enough info to allow Defendant a meaningful response. No dismissal under 12(b)(6) unless no relief could be granted under any set of facts that could be proven consistent with the allegation. CA Fact (Code) Pleading: Complaint must contain (1) Statement of fact constituting cause of action in ordinary and concise language (even more particularity required for fraud); and (2) Demand for judgment, need damage statement to give actual notice before Plaintiff gets default. No demand allowed in wrongful death/personal injury, an amount shall not be stated. Must plead a fact that goes to each element of the claim! Challenges to Complaint: Defendant has 20 days to respond in one of 2 ways --- a 12(b) motion or answer. CA 30 days to respond by demurrer or answer. Rule 12 Motions: o Form: More definite statement, Motion to strike (to remove irrelevant or improper pleadings CA-special demurrer) o Waived if not Raised: PJ, Improper Venue, Insufficiency of Process, and Insufficient Service o Merits: 12(b)(6) Failure to state a claim on which relief can be granted (raise any time before or at trial). 12(c) Judgment on the pleadings (Plaintiff can file if no timely answer or answer insufficient). CA- Demurrer: Distinctly specify grounds or it may be disregarded, tests sufficiency of complaint; must include points and authorities in support. If general demurrer is successful, then the other party can normally amend. If an amendment is not allowed, an appeal is allowed. On appeal, there will be a reversal of the demurrer if the facts state a claim on any legal theory (not just the ones already claimed). Answer: 20 days, or 60 days if waiver of service. CA 30 days. o Response: Short plain statement of defense, no technical terms required. Can just admit, deny, or claim not enough info. Failure to deny is an admission. o Affirmative Defenses: Must be plead with particularity or waived --- SL, RJ, S of F, Accord & Satisfaction, AP, Fraud, and Estoppel. o CA Answer: Shall contain general or specific denial of material allegations. Specific denial states factual basis for disagreeing with any individual pleading required for verified complaint SLAPP * A strategic lawsuit against public participation. A suit that is brought by a developer, corporate executive, or elected official to stifle those who protest against some high dollar initiative or who take an adverse position on a public interest issue.