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I.

JURISDICTION OF CALIFORNIA COURTS


A. Subject Matter Jurisdiction (OL I.B)
1. Classification of Cases
a. The basic rule in California is:
Most parties will get to stay in California in the state court syste
(1) Cases are sorte! into:
(a) sall clais
(b) liite!
(c) unliite!
b. Small Claims Division
(1) Jurisdiction Based on Amount of Demand
(a) In General
1) The sall clais court has "uris!iction o#er:
$ounts !ean!e! by the plaintiff that !oes not e%cee! &'(((
)) This liit is change! to:
&*'(( for natural persons
(b) Annual Limitation
1) +o person ay file ore than two sall class actions in which the aount !ean!e! e%cee!s &)'((
anywhere in the state in any calen!ar court
c. Limited and Unlimited Civil Cases
(1) $ consoli!ation of the trial courts in 1,,- cause! unicipal court "uris!iction to be replace! with liite! ci#il
cases in the superior courts. Liite! ci#il cases ay be brought in the sall clais !i#ision. !espite ha#ing a
higher !ean!. if the sall clais court has.
()) Limited Civil Cases
(a) Amount in Controversy
1) Clais liite! up to &)'(((
(/) Differences Beteen Limited and Unlimited Civil Cases
(a) In unliite! ci#il cases:
1) 0u!gent in e%cess of &)'(((
)) !isco#ery has few liits
/) Court can awar! !ifferent 1in!s of relief beyon! oney !aages
(b) In liite! ci#il cases:
1) Liite! reco#ery: +o power to enter an awar! abo#e &)'(((
)) 2isco#ery is liite! to one !eposition per party. /' total interrogations. !ean!s an! a!issions .
/) Liite! relief 3 no in"unctions. no faily or!er enforceent. no !eclaratory relief
(c) The a!#antages of a liite! ci#il case are:
1) Cheaper
)) 4aster
(5) !eclassification
(a) It is uch easier:
to go up fro liite! to unliite!
(b) $ atter ay be reclassifie! upwar! as an unliite! ci#il action when:
6 only has to pro#e reasonable possibility that aount ay e%cee! &)'(((
(c) $ atter ay be reclassifie! !ownwar! as a liite! ci#il action when:
1) The 2 ust pro#e that #er!ict will be necessarily below &)'(((. 7er!ict o#er &)'((( is #irtually
unobtainable.
CALIFORNIA
CIV PRO
(') A""re"ation of Claims
(a) If a single plaintiff sues a single !efen!ant on separate causes of action an! the causes of actions are
"oine! properly:
the aggregate #alue of all clais or !ean!s !eterines "uris!iction
(b) If there is ore than one plaintiff an! each plaintiff8s in!i#i!ual clai against a single !efen!ant is
&)'.((( or less. but the "oint clais are ore than &)'.(((:
the clais can be aggregate! to 9ualify as an unliite! ci#il case
(c) If a single plaintiff sues a single !efen!ant for ore than &)'.((( an! another !efen!ant for &)'.((( or
less:
the case 9ualifies as an unliite! ci#il case
). Motion to #ransfer
a. Lac$ of Subject Matter Jurisdiction
(1) If an action is coence! in a court that lac1s sub"ect atter "uris!iction:
they transfer the case instea! of !isissing it outright.
:;$M6L:%
A cor&oration brin"s a claim for '()*** in small claims court. #+e small claims ca& for cor&orations is
',)***. !at+er t+an dismissin" t+e action) t+e case ill be transferred to su&erior court.
B. -ersonal Jurisdiction (OL I.C)
1. 6ersonal "uris!iction refers to a court8s authority o#er a particular person (1nown as in personam jurisdiction) or piece
of property (1nown as in rem jurisdiction or quasi in rem jurisdiction. !epen!ing on the nature of the procee!ing).
a. In Personam Jurisdiction
(1) The tra!itional etho!s of e%ercising in personam "uris!iction in California are:
(a) 2oicile
1) 2efen!ants ay be autoatically sub"ect to in personam "uris!iction by reason of:
(b) 6ersonal <er#ice
1) <uons on a 2 while he is in C$ establishes personal "uris!iction
(c) Consent
1) The !efen!ant ay consent to "uris!iction by:
a) !eliberate appearance
b) ista1en appearance
c) contract
()) The 1ey thing to reeber regar!ing these tra!itional etho!s of "uris!iction is:
no iniu contacts re9uire!
(/) Lon".Arm Statutes
(a) Minimum Contacts
1) The 9uestion of how any contacts are re9uire! an! of what 1in! !epen!s:
on whether we are trying to establish general or specific "uris!iction
)) Miniu contacts are usually foun! when the !efen!ant:
a) !efen!ant tra#els into the state
b) sen!s pro!ucts into California
c) aintains a branch office in the state
/) General Jurisdiction
a) California courts ha#e general "uris!iction o#er a !efen!ant:
e%tensi#e. continuous an! systeatic acti#ities
b) The !efen!ant ay be sue!:
for any act in California. e#en one unrelate! to his contacts
5) S&ecific Jurisdiction
a) =here the !efen!ant8s contacts with the state are liite!. the court has only liite! "uris!iction:
o#er cases relate! to those contacts
b) The re9uireents to establish specific "uris!iction are:
i) purposely a#aile!
ii) substantial ne%us between acti#ity an! plaintiff8s cause of action
iii) tra!itional notions of fair play an! substantial "ustice

On a bar e%a 9uestion. !o not liit an analysis to only one 1in! of personal "uris!iction. 2escribe both a
general an! specific "uris!iction analysis. Co#er both the nuber of contacts an! the type of contacts the
!efen!ant has ha! with California. an! !iscuss the !ifference in establishing either general or specific
"uris!iction.
') Internet Cases
a) In general. for personal "uris!iction to e%ist o#er a !efen!ant that sells pro!ucts or !eli#ers
ser#ices #ia the Internet:
the !efen!ant ust ha#e intentionally con!ucte! business within California
b) 6assi#e websites. where a !efen!ant siply posts inforation on a website which is accessible
to users in ultiple "uris!ictions. generally !o not confer "uris!iction without ore !irect acti#ity in
California.
:;$M6L:%
$n!y hosts a website inforing rea!ers about upcoing concerts along the west coast. $
California tic1et bro1er woul! be unable to sue $n!y in a California court base! solely on the
inforation poste! on $n!y8s website.
b. In Rem Jurisdiction
(1) In rem "uris!iction affor!s a California court:
personal "uris!iction o#er property locate! in California. Trial can be hel! in the county where the
property is locate!
:;$M6L:%
#+e San /rancisco Su&erior Court ould +ave in rem jurisdiction over an action involvin" a dis&ute
re"ardin" t+e oners+i& of a manufacturin" facility located in San /rancisco) re"ardless of +ere t+e
oner of t+e &ro&erty resided.
()) In rem "uris!iction results in no personal liability or obligation upon any person. but rather affects the interests
of all persons in the property.
c. Quasi in Rem Jurisdiction
(1) $ttachent of real or personal property by the court
:;$M6L:%
At t+e commencement of a lasuit in su&erior court) a ban$ attac+es a lien to California &ro&erty
oned by a 0evada resident. #+e ban$ &lans to use t+e &ro&erty to satisfy t+e defendant1s debt if it
ins t+e lasuit.
()) Quasi in rem "uris!iction does not establis+ &ersonal jurisdiction o#er the owner of the property. 6ersonal
"uris!iction ust be obtaine! separately to procee!.
(a) If person coes to !efen! an interest in the property on the erits. the person woul! be sub"ect to
personal "uris!iction #ia consent.
C. Lac$ of Jurisdiction (OL I.2)
1. -rocedures for !aisin" Jurisdictional Defects
a. Challenges to "uris!iction ay be a!e by:
(1) a !eurrer to sub"ect>atter "uris!iction (e9ui#alent to ?ule 1)(b) otion to !isiss)
(a) +ote that a !efen!ant will be sub"ect to personal "uris!iction if he challenges personal "uris!iction #ia
!eurrer.
()) otions to 9uash for lac1 of personal "uris!iction
). A&&earances
a. $ !efen!ant wishing to contest "uris!iction ust ne#ertheless appear before the court to file a protest:
:;$M
TI6

special appearance to contest lac1 of personal "uris!iction
b. Con#ersely. a !efen!ant who files an answer contesting the plaintiff8s allegations:
general appearance confers "uris!iction
II. VENUE AND FORUM NON CONVENIENS
A. In General (OL II.$)
1. Im&ro&er Joinder
a. $ plaintiff ay not obtain #enue in a particular court:
by "oining a !efen!ant who is not a proper party to the action
). #y&es of Actions
a. Local actions are:
actions that in#ol#e real property or counity property. 7enue lies where property is locate!
b. #ransitory actions are:
actions that coul! occur in any location. 7enue is usually proper where !efen!ant is locate!
c. Mi2ed Actions
(1) Mi%e! actions in#ol#e:
both local an! transitory actions. Courts loo1 at the ain relief sought to !eterine #enue.
B. 3t+er Matters (OL II.B)
1. In certain instances. #enue !epen!s on the nature of the action.
). -ersonal Injury or 4ron"ful Deat+
a. If an action is for in"ury to person or personal property or for wrongful !eath fro wrongful act or negligence. #enue
is proper in the superior court in either:
(1) where the in"ury or !eath occurre!
()) where the !efen!ants. or soe of the. resi!e at coenceent of the action
/. 5nforcement of C+ild Su&&ort
a. 7enue is where the chil! resi!es
5. Actions on Contract
a. In General
(1) If a !efen!ant has contracte! to perfor an obligation in a particular county. an action brought on that contract
ay be file! in the county:
(a) where the obligation is to be perfore!
(b) where the contract in fact was entere! into
(c) where the !efen!ant or any !efen!ant resi!es at the coenceent of action
C. #ransfer of 6enue (OL II.C)
1. Motion to #ransfer
a. The court ay. on otion. change the place of trial in the following cases:
(1) +ot in the proper court
()) Cannot get proper trial
(/) Con#enience of witnesses an! en!s of "ustice woul! be et by a change of #enue
D. Forum Non Conveniens (OL II.2)
1. @n!er the !octrine. a court ay !isiss an action if:
the action shoul! be hear! in a foru outsi!e California
:;$M6L:%
$ Te%as corporation sues a California resi!ent for breach of contract. The contract was for the perforance of
construction ser#ices in Te%as. $ll potential witnesses li#e in Te%as. :#en though a California court has "uris!iction
o#er the California resi!ent. it coul! !isiss the case base! on an arguent of forum non conveniens.
). The test for forum non conveniens is:
con#enience an! fairness in litigating the case soewhere else
/. In granting this otion. California courts ay:
stay the action. but can !isiss it
5. $s a prere9uisite to !isissal. the court ust conclu!e that:
a. suitable alternati#e foru
:;$M6L:%
$ California court will not !isiss an action base! on forum non conveniens where the statute of liitations has
e%pire! in another foru.
b. public an! pri#ate factors ust fa#or putting off the case
(1) -ublic factors inclu!e court congestion. obligations on unrelate! "urors. aount of local interest. an! court
failiarity with the law.
()) -rivate factors inclu!e ease of access to proof. a#ailability of witnesses. an! !istance fro the property at
issue.
AB6OTA:TIC$L
$!a an! Betty were arrie! in <acraento county. They resi!e! in <an Bernar!ino county until their !i#orce. which was
also obtaine! in <an Bernar!ino county. If Betty now li#es in <anta Barbara county with the couple8s son. in which county
shoul! she file an action for chil! supportC
Chil! support action shoul! be file! where the chil! li#es. <he shoul! file the action where the chil! resi!es. which is <anta
Barbara.
5. C+oice of La and Conflict of La (OL II.:)
1. If a contract in#ol#es a choice of law pro#ision:
@sually the courts will enforce the choice of law or foru selection in a contract
). If it is a tort or soe other action in#ol#ing ore than one state:
Court ay apply place of wrong approach. ost significant relationship approach an! ipairent of go#ernent
interest approach
a. =hether the two states rules conflict
b. $ssuing a conflict e%ists. the court will apply the com&arative im&airment in9uiry. The court will not select the
ost worthy policy. but will instea! !eci!e:
whether a state8s interest woul! be ore greatly ipaire! if its laws were subor!inate! to the policy of the other
state
BAR EXAM APPLICATION
Duestion 1
$pplicants ay be as1e! to analyEe issues arising fro facts siilar to the following:
2anco. a anufacturer incorporate! an! hea!9uartere! in Oregon. eploye! 6at. a resi!ent of California. as its California
salesperson fro 1,,( to )(((. In 1,,,. To. an Oregon resi!ent. was hire! as 2anco8s sales anager at the 2anco
hea!9uarters in Oregon. In )(((. To increase! sales 9uotas an! pressure! 6at to re!uce lea! ties between initial contract
an! final sale. 6at proteste! that this woul! ruin long>stan!ing custoer relationships with custoers in the state. 2espite
se#eral warnings to increase sales. 6at faile! to eet the new 9uotas an! was fire! on his '(th birth!ay. $t the tie of 6at8s
terination. he ha! se#eral large !eals pen!ing in California for which To ha! proise! hi a stan!ar! coission upon
copletion. 2anco cease! !oing business in California an! the sales were ne#er coplete!. $fter attepts to fin! another "ob.
6at learne! that two prospecti#e California eployers ha! refuse! to hire hi because of negati#e references gi#en by To.
6at sue! both 2anco an! To in trial court for age !iscriination un!er California law. breach of contract (unpai!
coissions). an! !efaation. To an! 2anco each a!e a special appearance to 9uash ser#ice. an! the court !enie! the
otions.
$ssuing the !efen!ants were properly ser#e!. !i! California <tate Court properly assert "uris!iction o#er each !efen!antC
Applicants must consider whether general jurisdiction or specific jurisdiction exists with respect to Danco and Tom and whether
either of their appearances to quash service impacts this analysis.
Jurisdiction can e estalished y domicile! personal service and consent. It can also e estalished y minimum contacts!
which can e general or specific. Tom has een supervising a "alifornia employee ut nothing suggests he has een in
"alifornia so he may not have enough minimum contacts in "alifornia to estalish general or specific jurisdiction either. In
Tom#s case! it appears that assertion of personal jurisdiction was not proper.
The court may estalish specific jurisdiction over Danco! asent general jurisdiction. Danco does not appear to have
continuous and systematic contacts throughout "alifornia y just hiring an employee. $owever! Danco has purposefully
availed himself to "alifornia y hiring and firing a "alifornia employee! and there is a close nexus etween the wrongful
termination action and the defendant#s activity in "alifornia. %o we may have enough to estalish specific jurisdiction through
minimum contacts for Danco.
A defendant can challenge personal jurisdiction y special appearance. A special appearance for motion to quash will not
result in consent to estalish personal jurisdiction.
BAR EXAM APPLICATION
Duestion )
$pplicants ay be as1e! to analyEe issues arising fro facts siilar to the following:
6eter. a California citiEen. file! an action in Los $ngeles <uperior Court for frau! against a business incorporate! in California.
$roun! the tie of the filing of the coplaint. 2an. the presi!ent of the copany. ha! suffere! a se#ere heart attac1. which
confine! hi to a resi!ential facility in <tate ; near his faily. 2an file! a otion to reo#e the case fro Los $ngeles to <tate
;. The trial court grante! the otion after conclu!ing that copelling 2an to tra#el a !istance of /.((( iles to California in
or!er to !efen! against the action ight ha#e serious conse9uences on his life. as his !octor ha! warne! hi to a#oi! un!ue
strain an! tra#el. The <uperior Court note! that 2an8s testiony woul! be aterial an! iportant. The laws of <tate ; woul!
be applie!. It !oes not allow puniti#e !aages for frau!.
=as the transfer proper un!er California lawC
$pplicants ust consi!er the !octrine of forum non conveniens! whether a stay or !isissal of the case woul! ha#e been
appropriate. an! the rules regar!ing choice of law.
In "alifornia! a court may stay or dismiss a case under the doctrine of forum non conveniens if a party requests it and if there is
a suitale alternative forum! and the pulic&private interests prevail for shifting the forum. 'othing in the facts suggest that
%tate ( is not a suitale forum. $ere! Dan cannot travel )*** miles to "alifornia so the private interest is significant in moving
the forum to %tate (.
The rules in "alifornia are +inder and gentler with regards to foru non con#eniens so the court can either stay or !isiss the
case.
If a case is transferred and there is a conflict of laws! the court will apply the comparative impairment inquiry. The court will not
select the most worthy policy! ut will instead decide whether a state#s interest would e more greatly impaired if its laws were
suordinated to the policy of the other state. $ere! "alifornia and ( have widely varying laws on punitive damages for fraud.
"alifornia has an interest in full recovery for fraud victims! including punitive damages. %tate ( doesn#t have too much of an
interest relatively spea+ing. ,e have a "alifornia client! "A corporation and the original filing was in "alifornia. The "alifornia
plaintiff may even suffer prejudice for not eing ale to recover fully due to misdeeds of "alifornia corporation. The court
should apply law of "alifornia.
III. PLEADINGS AND SERVICE OF PROCESS
A. -leadin"s (OL III.$)
1. In General
a. The plea!ings allowe! in ci#il actions in California are:
(1) coplaintsF
()) !eurrersF
(/) answersF an!
(5) cross>coplaints.
). Liberal Construction
a. California has fact plea!ing
/. /act -leadin"
a. 4act (or co!e) plea!ing re9uires:
fact or facts supporting each eleent of the cause of action
B. Com&laints) Counterclaims) and Cross.Com&laints (OL III.B)
1. Com&laints
a. Contents
(1) $ coplaint or cross>coplaint ust contain:
(a) facts
(b) !ean! for "u!gent
b. Dama"es
(1) In General
(a) Coplaints that !ean! the reco#ery of oney !aages ust state the aount !ean!e!. e%cept:
actions to reco#er actual or puniti#e !aages for personal in"ury or wrongful !eath
()) -ersonal Injury or 4ron"ful Deat+
(a) Instea!. !aages are 9uantifie!:
in a separate stateent of !aages
). Counterclaims and Cross.Com&laints
a. In General
(1) The ters GcounterclaiH an! Gcross>claiH are no longer use! in California.
()) $ !efen!ant ay file:
a cross>coplaint
b. 4+en Com&ulsory
(1) 4ailure to allege a copulsory cross>coplaint will result:
in preclusion fro subse9uently asserting the relate! cause of action in another lawsuit
()) Ienerally. a !efen!ant ust allege in a cross>coplaint-
in any related cause of action he has against a plaintiff at the time of serving an answer
(/) This issue ost often arises:
$ plaintiff sues two !efen!ants for a car acci!ent. If 2efen!ants sue the plaintiff. that is a cross>
coplaint. If they fail to !o so. the clai is lost
c. 4+en -ermissible
(1) $ cross>coplaint is perissible when:
!efen!ant wants to bring a coplaint against soeone who is not alrea!y a party to the action
C. Service of -rocess (OL III.C)
1. #imin"
a. The suons ust be a!e within J( !ays
(1) 52ce&tion%
juvenile court) &robate court) small claims court) com&le2 liti"ation
). By 4+om Made
a. $ suons ay be ser#e! by any person:
o#er 1- who is not a party
/. Manner of Service
a. -ersonal Delivery
(1) 6ersonal !eli#ery is re9uire! of the suons an! coplaint
()) Substituted Service
(a) If a !efen!ant cannot be personally ser#e!. the plaintiff ay:
lea#e a copy of the suons an! coplaint at the !welling or place of business. an! ail a copy first>
class
(b) Liitations on this rule:
lea#e the copy with an a!ult who is infore! of the contents
b. Service on Cor&orations
(1) $ suons an! coplaint ay be ser#e! on a corporation by !eli#ering a copy:
(a) to the agent for ser#ice of process
(b) to the presi!ent. #ice>presi!ent. secretary or other corporate officer
()) Substituted Service
(a) In lieu of personal !eli#ery. a suons an! coplaint ay be ser#e! by lea#ing a copy at the copany8s
office:
!uring usual office hours or at the usual ailing a!!ress an! by thereafter ailing copy of the suons
an! coplaint by first class ail. postage prepai!
c. Service by Mail
(1) $ suons ay be ser#e! by ail. but such ser#ice is only effecti#e:
when the !efen!ant ac1nowle!ges receipt
!. Service 3utside State
(1) $ suons an! coplaint ay be ser#e! on a person outsi!e California:
by any anner pro#i!e! for in>state ser#ice or by sen!ing copy of the suons an! coplaint to
the persons ser#e! by first>class ail. with two copies of the notice. postage prepai!. re9uiring
return receipt
e. Service by -ublication
(1) $ suons ay be ser#e! by publication if it appears to the satisfaction of the court in which the action is
pen!ing:
upon affi!a#it of the ser#ing party. that the party to be ser#e! cannot with reasonable !iligence be
ser#e! in a better anner
()) <er#ice by publication is ost coonly seen where:
in re an! 9uasi in re actions where the owner of property ay not be 1nown or where personal
ser#ice is not re9uire!.
AB6OTA:TIC$L
Bilbo an! 4ro!o are the presi!ent an! #ice presi!ent of Aobbits. Inc.. a California corporation they fore! to sell special
rings in "ewelry stores throughout the state. Iollu8s store pays for )(( rings but ne#er recei#es the. Iollu woul! li1e to
sue Aobbits. Inc. to reco#er the oney he pai! for the rings. May he ser#e the suons an! coplaint on Bilbo or 4ro!oC If
neither Bilbo nor 4ro!o is in the factory on the !ay of ser#ice. ay Iollu ser#e a factory wor1erC
Bes. he can ser#e to the officers of the corporation if he !eli#ers the personally. In the e#ent that officers are not
a#ailable. Iollu cannot lea#e it with a factory wor1er who is not authoriEe! to recei#e the ail. 4or substitute ser#ice. he
nee!s to lea#e it at place of business !uring usual hours. an! ail a copy of the suons an! coplaint. postage
prepai!.
D. Met+ods of !es&ondin" to t+e -leadin"s% Ansers) General Denials) and Affirmative Defenses (OL III.:)
1. Ansers
a. The answer is a plea!ing that respon!s to the allegations in the coplaint (or cross>coplaint).
b. The answer to a coplaint or cross>coplaint ust contain:
(1) general or specific !enial of aterial allegations
()) affirati#e !efenses
c. Affirmative !elief
(1) $s oppose! to affirati#e !efenses. affirati#e relief ay not be claie! in the answer. but ust be sought by
eans of a separate cross>coplaint.
!. Denials
(1) The !enials of the allegations that are contro#erte! ay be state! by:
(a) ?eference to specific paragraphs or parts of the coplaint
(b) Ieneral !enial !enying e#ery allegation in the copliant with a single stateent
1) Ieneral !enial is iperissible. an! specific paragraph references are re9uire!. where:
if the coplaint is #erifie! by the plaintiff. signe! un!er oath
). Default
a. +o answer within /( !ays eans plaintiff can see1 a !efault "u!gent fro the court.
b. 4+en Granted
(1) The court cler1 ust first enter the !efault of the !efen!ant ser#e! in the action (by eans other than
publication).
()) Once the !efault is entere!:
the plaintiff ay see1 !efault "u!gent
(/) 6rior to entry of the !efault "u!gent. a separate pro#e>up hearing ust be hel! to establish the aount of
!aages on !efault using:
coplaint. stateent of !aages. or any other e#i!ence they ha#e
c. 5ffect
(1) :ntry of !efault terinates:
the !efen!ant8s opportunity to !efen!
!. Settin" Aside Default Jud"ment
(1) ?elief is usually a#ailable upon a showing of:
(a) ista1e
(b) ina!#ertence
(c) e%cusable neglect
(!) surprise 3 lac1 of actual notice
5. Met+ods of C+allen"in" -leadin"s% Demurrers) Ansers) and Motions to Stri$e (OL III.4)
1. 3bjection by Demurrer or by Anser
a. General Demurrers
(1) California practice perits a general !eurrer:
This ust be file! within /( !ays. instea! of an answer or with an answer. It is a otion for failure to
state a clai upon which relief can be grante!.
b. 3bjections to Com&laints
(1) The party against who a coplaint or cross>coplaint has been file! ay ob"ect to the plea!ing. by !eurrer
or by answer. on any one or ore of the following groun!s:
(a) lac1 of sub"ect atter "uris!iction
(b) lac1 of capacity to sue
(c) failure to state a clai
(!) !efect or is"oin!er of parties
(e) plea!ing is uncertain
c. Amendments
(1) The court will usually allow plaintiff to fi% the coplaint
). Motions to Stri$e
a. On a otion to stri1e. or at any tie in its !iscretion. the court ay:
(1) stri1e out irrele#ant. false or iproper atter
()) stri1e out all or any part of plea!ing not properly !rawn or file!
(a) The ost coon e%aple of this is:
puniti#e !aages
b. Anti.SLA-- Motions
(1) In General
(a) $nti><L$66 is !efine! as:
<trategic Lawsuit $gainst 6ublic 6articipation 3 cause of action against a person arising ro any act of
that person in furtherance of the person8s right of petition or free speech
(b) The 1in! of lawsuit ta1es ai at is:
en! fri#olous lawsuits when the !efen!ant is being slappe! for their speech
(c) The lawsuit will be !isisse! unless:
plaintiff pro#es they can succee! on the erits
:;$M6L:%
$ city councilperson says soe things about a local business owner. The city councilperson urges a #ote
that this business owner opposes. The coents are true. but are not entirely coplete. an! a1e the
local business owner loo1 really ba!. The business owner sues the councilperson for an en!less strea
of torts. 6articular things to note that a1e this i!entifiable as ripe for an anti><L$66 otion are: (1) there
is a political aspect to the facts. which raises first aen!ent concernsF ()) !efen!ant is e%ercising free
speech rightsF (/) plaintiff really "ust wants the speech to stopF an! (5) plaintiff is not really suing for tort
liability.
()) SLA-- Bac$
(a) cause of action for alicious prosecution or abuse of process arising fro filing or aintenance of a prior
cause of action that has been !isisse! pursuant to an anti><L$$6 otion
/. Amendment of -leadin"s (OL III.I)
1. As of !i"+t
a. $ny plea!ing ay be aen!e!:
Once. before the answer or !eurrer is file! (/( !ays)
b. $ plea!ing ay be aen!e! after this point:
at the !iscretion of the court
). /ictitious 0ames
a. =hen the plaintiff !oes not 1now the nae of a !efen!ant:
he ust state that fact in the coplaint
b. =hen the !efen!ant8s true nae is !isco#ere!:
the plea!ing or procee!ing ust be aen!e! accor!ingly
/. !elation Bac$
a. Li1e ost "uris!ictions. California has a!opte! a !octrine that perits an aen!e! coplaint to relate bac1 to the
!ate of the filing of the original coplaint. for purposes of a#oi!ing the bar of the statute of liitations if the tie
perio! has run in the interi. The relation>bac1 !octrine. as articulate! by the California courts. re9uires that the
aen!e! coplaint:
(1) sae general facts set forth in the original coplaint
()) in#ol#e the sae acci!ent an! sae in"uries i!entifie! in the original coplaint an!
(/) refer to the sae offen!ing instruentality !escribe! in original coplaint
G. Statutes of Limitations (OL III.A)
1. Accrual
a. Car Accident or Injury
(1) The cause of action accrues:
trigger is the e#ent
b. Delayed Discovery !ule
(1) @n!er California8s !elaye! !isco#ery rule. the statute of liitations begins to run:
when the plaintiff !isco#ers or has reason to !isco#er the cause of action.
(a) This occurs when the plaintiff at least suspects. or has reason to suspect. a factual basis for the cause of
action as to any !efen!ant.
AB6OTA:TIC$L
:!!ie sues Ti for breach of contract within the appropriate liitations perio!. $fter the liitations perio! has e%pire!.
:!!ie aen!s his coplaint to inclu!e a!!itional clais for !efaation. =ill the !efaation clai be barre! by the
statute of liitationsC
In fe!eral court. :!!ie only nee!s the a!!itional clai to arise out of the sae general set of facts as the original
coplaint. Aowe#er. un!er California ?ules of Ci#il 6roce!ure. :!!ie also nee!s to show that the new clais in#ol#e
the sae acci!ent or in"ury an! refer to the sae offen!ing instruentality in the original coplaint. Aere. the in"ury is
!ifferent 3 breach of contract an! !efaation. It is not e#en clear if the two clais not arise out of the sae
occurrence or set of general instruentalities. 4inally. the offen!ing instruentalities are !ifferent as well. :!!ie is in
trouble.
IV. JOINDER AND SUBSTITUTION OF PARTIES
A. Joinder of -arties (OL I7.$)
1. Mandatory Joinder of Indis&ensable or Conditionally 0ecessary -arties
a. $ person who is sub"ect to ser#ice of process an! whose "oin!er will not !epri#e the court of "uris!iction o#er the
sub"ect atter of the action ust be "oine! as a party in the action if:
In his absence. coplete relief cannot be accor!e! aong those who are alrea!y parties or he clais an interest
relating to the sub"ect of the action an! is so situate! that the !isposition of the action in his absence ay ipe!e
his ability to protect the interest or lea#e parties with substantial ris1 of incurring inconsistent obligations
b. If such a party has not been "oine! in the action:
(1) Court ust or!er that he be a!e a party
()) If he cannot be a!e a party. court ust !eterine whether in e9uity an! goo! conscience the action shoul!
procee! aong the parties before it
). -ermissive Joinder of -arties
(1) Multiple persons ay "oin or be "oine! in the sae action if:
They assert any right of relief "ointly. se#erally or in the alternati#e. in respect of or arising out of the
sae transaction. occurrence. or series of transaction. with coon 9uestions of fact or law O?
they ha#e a clai. right. or interest a!#erse to the !efen!ant
B. Joinder of Claims (OL I7.B)
1. 6laintiff ay unite any causes of action that he has either alone or with any other co>plaintiffs against any !efen!ant

C. Class Actions (OL I7.C)
1. 6ariance from /!C-
a. California !oes not ha#e a !etaile! class action statute or rule coparable to 4?C6 )/. 4or authority to certify class
actions. California courts rely on CC6 K /-). which perits certification where:
(1) coon interest O?
()) ipracticable to bring the clais before the court
D. S&ecial /orms of Joinder% Inter&leader) Intervention) and Im&leader (OL I7.2)
1. Inter&leader
a. !ule
(1) <iilar to 4?C6 )) 3 enables sta1ehol!er to a#oi! liability by "oining ultiple a!#erse parties to fight o#er the
interest in property or !ebt.
:;$M6L:%
#o &eo&le claim to be t+e &ro&er beneficiaries of an insurance &olicy deat+ &ayment. 3ne sues t+e
ot+er) claimin" t+e &roceeds are +ers. #+e insurance com&any inter&leads as a sta$e+older re7uestin"
t+at t+e court direct t+e &ayment to one liti"ant or t+e ot+er. #+e insurance com&any does not dis&ute
t+at it +as an obli"ation to &ay8 it only ants to $no +ic+ liti"ant s+ould receive t+e &ayment.
). Intervention
a. In General
(1) $n inter#ention ta1es place when a thir! person is peritte! to becoe a party to an action or procee!ing
between other persons who allege!ly !o not sufficiently protect the interests of the thir! party
:;$M6L:%
After sellin" t+e San /rancisco 9:ers) t+e former oner sues t+e ne oner +o is+es to move t+e
9:ers to 0evada. #+e 0/L files a motion to intervene see$in" to &rotect t+e lea"ue1s interests
re"ardin" oners+i& transfers.
b. As of !i"+t
(1) The California rule on inter#ention as of right. CC6 K /-*(b). is nearly i!entical to 4?C6 )5(a).
()) In California. if the person see1ing inter#ention:
clais an interest relating to a property or transaction that is sub"ect of the action an! !isposition
without the person woul! ipair his ability to clai that interest. the court ust perit hi to
inter#ene. unless his interest is a!e9uately represente! by the other parties.
c. -ermissive Intervention
(1) The California rule re9uires:
interest in the atter un!er litigation. which is narrower than ?ule )5(b). re9uiring only applicant8s
clai or !efense ha#e a 9uestion of law or fact in coon
5. Im&leader (OL I7.:)
a. In General
(1) :9ui#alent of ?ule 15.which allows !efen!ant to bring in a thir! party who ay be liable for the plaintiff8s clai.
California8s e9ui#alent of an iplea!er is thir!>party cross coplaint
:;$M6L:%
Im&leader is most often used +ere an insurance com&any +as a duty to indemnify t+e defendant for
t+e &laintiff1s dama"es.
/. /rivolous -leadin"s and 6e2atious Liti"ators (OL I7.4)
1. #rut+ in -leadin"
a. Cannot lie or a1e up things. 0u!ges ay ipose sanctions for tactics that are fri#olous or inten!e! to cause
!elay.
). 6e2atious Liti"ation
a. Courts ay enter an or!er re9uiring a #e%atious litigator to obtain lea#e of court before he is peritte! to file new
clais in any California court if the person has:
(1) brought ' uneritorious cases in se#en years
()) cannot sue the sae !efen!ant repeate!ly
BAR EXAM APPLICATION
Duestion /
$pplicants ay be as1e! to analyEe issues arising fro facts siilar to the following:
1) On her way to her thir! gra!e class. 6aela. age *. is struc1 by a car on the crosswal1 in front of her public school in <an
4rancisco. Aer parents !eci!e to sue the <an 4rancisco <chool 2istrict (<4<2) an! Crossing Iuar! Copany (CIC). a
pri#ate ser#ice that pro#i!es crossing guar!s to <4<2. 6aela8s parents file a coplaint in <an 4rancisco <uperior Court
on behalf of 6aela an! thesel#es. The coplaint naes <4<2. CIC. an! 2oes 1>1( an! is properly captione!.
signe!. !ate!. an! accopanie! by a for co#er sheet an! a for suons. 6aela8s other han! !eli#ers a copy of
the coplaint to the principal of 6aela8s school an! han!s a copy to the crossing guar! who is on !uty at the tie.
)) If <4<2 an! CIC each a1e a tiely attept to 9uash ser#ice. what groun! will they allege an! what is the li1ely
resultC
/) Aas 6aela acte! in goo! faith in inclu!ing 2oe !efen!antsC
$pplicants ust consi!er what !efects occurre! in ser#ice with respect to substitution of parties an! who ay or ay not ser#e
another party. $pplicants ust also consi!er California rules regar!ing the use of 2oe !efen!ants.
In order to properly serve an entity! plaintiff must properly hand deliver the summons and copy of complaint to defendant#s agent or
corporate officers. Another way to sustitute service is to deliver to place of usiness during usual usiness hours and send it
through first class mail! postage prepaid. $ere! service to %.%D and "/" are not proper. The principal of the school is not an officer
of the district. 'or is the guard an officer of "/". Additionally! the plaintiff cannot e the one serving the complaint and summons 0
the person needs to e over 12 and not e a party. %o "/" and %.%D can quash service and allege improper service.
3amela acted in good faith with regards to the Doe defendants. Doe here could e the missing driver of the car! and there is nothing
to suggest that 3amela is not acting in good faith.
BAR EXAM APPLICATION
Duestion 5
$pplicants ay be as1e! to analyEe issues arising fro the sae fact pattern as in Duestion / but with the a!!ition of the
following facts:
1) 6aela8s parents file a coplaint in the <an 4rancisco <uperior Court on behalf of 6aela an! thesel#es. The
coplaint pro#i!es in full the following causes of action an! !ean! for "u!gent:
)) 4I?<T C$@<: O4 $CTIO+: <4<2 an! CIC are responsible for 6aela8s physical in"uries an! se#ere eotional
!istress.
/) <:CO+2 C$@<: O4 $CTIO+: <4<2 an! CIC are responsible for the eotional !istress 6aela8s parents
e%perience! fro 6aela8s in"uries.
5) 2:M$+2 4O? 0@2IM:+T: =herefore. 6aela an! her parents pray for relief in the aount of &'((.((( in actual
!aages an! &'((.((( in puniti#e !aages.
') $ssue for purposes of this 9uestion that the court allows the coplaint to procee!. <4<C wishes to file a !eurrer
un!er California Co!e of Ci#il 6roce!ure K 5/(.1( an! possibly other statutes. It as1s for your a!#ice. =hich !efects
can you spot in the coplaintC
$pplicants ust consi!er the contents an! for of the coplaint an! i!entify what. if anything. is issing fro the coplaint
an! what. if anything. is isplace!.
In "alifornia! a complaint or cross4complaint must contain facts and a demand for judgment. "omplaints that demand the
recovery of money damages must state the amount demanded! except for actions to recover actual or punitive damages for
personal injury or wrongful death. In those cases! damages are quantified in a separate statement for damages.
$ere! the plaintiffs have failed to ma+e sufficient pleadings of fact. ,ith punitive damages! facts should e plead with
particularity. The damages are not in a separate statement.
Demurrers oject to defects in the complaint. Defendant can pursue a general demurrer to dismiss the action ased on failure to
state a claim. There is also grounds for a special demurrer here to ma+e an ojection that the pleading is uncertain or
amiguous. The defendant can also file an answer with the demurrer ma+ing affirmative defenses.
V. DISCOVERY
A. In General (OL 7.$)
1. Sco&e
a. @nless otherwise liite! by court or!er. any party in California ay obtain !isco#ery regar!ing any atter. not
pri#ilege!. that is:
?ele#ant to the sub"ect atter an! a!issible in e#i!ence or li1ely to lea! to !isco#ery of a!issible e#i!ence an!
not sub"ect to pri#ilege
b. 2isco#ery rules are to be liberally construe!.
). Met+ods of Discovery
a. $ny party ay obtain !isco#ery by one or ore of the following etho!s:
(1) oral an! written !epositions
()) interrogatories
(/) inspections of !ocuents. things an! places
(5) physical an! ental e%ainations
(') re9uest for a!issions
(J) e%changes of e%pert trial witness inforation
B. De&ositions (OL 7.C)
1. $ny party ay obtain !isco#ery by ta1ing (within California) the oral !eposition of any person. inclu!ing any party to the
action.
). De&ositions on 4ritten ;uestions
a. $ny party ay obtain !isco#ery by ta1ing a !eposition by written 9uestions instea! of by oral e%aination. The
9uestions to be propoun!e! to the !eponent by !irect e%aination ust accopany the notice of a written
!eposition.
/. Sub&oena
a. The atten!ance of a witness at the ta1ing of his !eposition is re9uire! by eans of a subpeona
C. Interro"atories (OL 7.2)
1. 2isco#ery by written stateents un!er oath
). 0umber
a. In California. a party ay propoun! to another party either or both of the following:
(1) /' O?
()) ore by lawyer !eclaration
/. Continuin" Interro"atories
a. +o continuing obligation to up!ate answers
D. !e7uests for -roduction) Ins&ection) and Co&yin" of Documents8 5ntry U&on Land8 -+ysical or Mental
52aminations (OL 7.:)
1. Ins&ection Demands Generally
a. $ party ay !ean! that any other pro!uce an! perit the party a1ing the !ean! to inspect !ocuents.
tangible things an! lan! or other property that is in possession. custo!y or control of any other party
b. <iilar to interrogatories:
Liite! to /' unless lawyer !eclarations
). Discovery by -+ysical or Mental 52amination
a. $ny party ay obtain !isco#ery by eans of a physical or ental e%aination where:
The ental or physical con!ition of any party. agent or natural person in custo!y of the party is at issue.
+o ental e%ainations in personal in"ury actions e%cept in e%ceptional circustances.
AB6OTA:TIC$L
Marsha files a lawsuit against a hospital alleging that she was in"ure! !uring a fall cause! by a faulty be!rail. <he re9uests
the pro!uction of certain !ocuents fro the hospital. inclu!ing inci!ent reports relating to patient falls cause! by slic1
floors. faulty threshol!s. an! other causes not relate! to !efecti#e be!rails. Must the hospital pro!uce these !ocuentsC
2isco#ery is allowe! of all rele#ant e#i!ence an! e#en e#i!ence that coul! lea! to a!issible e#i!ence at trial. Aere. the
!isco#ery re9uest is broa! but if the hospital is newer. it is not cubersoe or broa!. The e#i!ence re9ueste! ay show
faulty e9uipent. negligence on the part of eployees. ba! repair stan!ar!s. They ay also i!entify who is in charge of the
repairs at the hospital an! show pattern of !angers left unrepaire! at the hospital.
5. !e7uests for Admission (OL 7.4)
1. $ny party ay re9uest that another party:
for !ocuents or factual or legal a!ission. without ta1ing lea#e of court
:;$M6L:%
2uring a wrongful !eath lawsuit resulting fro a car crash. !efen!ant a!its that he was !ri#ing the Toyota in#ol#e! in
the crash.
). 0umber -ermitted
a. Liite! to /' of factual or legal a!ission. unless cople% litigation
b. The nuber of re9uests for a!ission of the genuineness of !ocuents is not otherwise liite!. e%cept:
unliite! on re9uests for authenticity of !ocuents
/. 52c+an"e of 52&ert #rial 4itness Information (OL 7.I)
1. $fter the setting of the initial trial !ate for the action. any party ay obtain !isco#ery by !ean!ing that all parties
siultaneously e%change inforation concerning each other8s e%pert trial witnesses.
). 52&ert 4itness Declaration
a. This !eclaration ust be a!e un!er penalty of per"ury an! ust contain:
(1) Brief narrati#e stateent of 9ualifications of ach e%pert
()) Brief narrati#e stateent of the general substance of the testiony that e%pert will gi#e
(/) ?epresentation that the e%pert has agree! to testify at the trial
(5) ?epresentation that the e%pert will be sufficiently failiar with the pen!ing action to subit to a eaningful oral
!eposition concerning the specific testiony
(') <tateent of e%pert8s hourly an! !aily fee for pro#i!ing !eposition testiony an! for consulting with the
retaining attorney
G. Discovery Sanctions (OL 7.A)
1. -rotective 3rder
a. The court. for goo! cause shown. ay a1e any or!er that "ustice re9uires to protect any party or other natural
person or organiEation fro unwarrante! annoyance. ebarrassent. or oppression. or un!ue bur!en an!
e%pense.
). #y&es of Sanctions
a. To the e%tent authoriEe! by the rules go#erning any particular !isco#ery etho!. the court. after notice to any
affecte! party. person. or attorney. an! after opportunity for hearing. ay ipose the following sanctions against
anyone engaging in a isuse of the !isco#ery process:
(1) Monetary sanctions
()) Issue sanctions 3 certain facts be ta1en as establishe! in fa#or of the wronge! party
(/) :#i!ence sanctions 3 prohibiting the wrongful party fro intro!ucing !esignate! atters into e#i!ence
(5) Terinating sanctions
(a) <tri1ing all or part of the plea!ing
(b) <taying further procee!ings until an or!er for !isco#ery obeye!
(c) 2isissing all or part of an action
(') Contept sanctions
<. -rivile"es (OL 7.0)
1. The three ain pri#ileges foun! within the California rules are:
a. $ttorney>client pri#ilege
b. =or1 pro!uct pri#ilege
c. 6ri#acy rights steing fro C$ constitution
AB6OTA:TIC$L
6laintiff 6orter file! a clai for personal in"ury against 2efen!ant 2ic1. 2uring the !isco#ery process. 6orter !ean!e! to
inspect #i!eotapes that the in#estigator hire! by 2ic18s lawyer ha! a!e of 6orter without his 1nowle!ge !uring the onth
after he was hurt. =hat is the ost effecti#e arguent 6orter can a1e in support of his !ean!C
2isco#ery is peritte! if it is rele#ant to the trial or can lea! to rele#ant a!issible e#i!ence. $ party ay !ean! to
inspect !ocuents. tangible things an! lan! or other property that is in possession. custo!y or control of any other party.
Aere. 6laintiff wants #i!eo tapes of her a!e by the !efen!ant. 2isco#ery is peritte! if it is rele#ant or can lea! to
rele#ant a!issible e#i!ence. 6orter can assert that the #i!eo tapes #iolate his pri#acy rights as part of his pri#ilege.
VI. DISPOSITION WITHOUT TRIAL
A. Summary Jud"ment (OL 7I.B)
1. $ny party ay o#e for suary "u!gent if it is conten!e! that the action has no erit or that there is no !efense to
the action or procee!ing.
:;$M6L:%
6laintiff o#es for suary "u!gent at the close of !isco#ery. using e#i!ence obtaine! !uring !isco#ery as a basis for
the otion.
). #imin"
a. *' !ays notice re9uire! before the hearing
/. Standard
a. $ cause of action has no erit if one or ore of the eleents of the cause of action cannot be separately
establishe!. e#en if that eleent is separately plea!e!. or if a !efen!ant establishes an affirati#e !efense to that
cause of action
b. In California. the party o#ing for suary "u!gent ust prepare a eoran!u of points an! authorities with a
stateent of un!ispute! facts with citations to supporting e#i!ence an! an analysis of the rele#ant law.
B. Jud"ment on t+e -leadin"s (OL 7I.B)
1. In General
a. $ party ay o#e for "u!gent on the plea!ings. or the court ay on its own otion grant "u!gent on the
plea!ings.
b. The otion ay be a!e e#en though:
(1) a !eurrer a!e by the o#ing party on the sae groun!s has alrea!y been o#errule!. pro#i!e! that there
has been a aterial change in applicable case law or statute since the ruling on the !eurrerF or
()) the o#ing party !i! not !eur to the coplaint or answer on the sae groun!s as the basis for the otion.
c. $ otion to !isiss a!e after an answer has been file!:
is a otion for "u!gent on the plea!ings
C. Dismissal (OL 7I.C)
1. In General
a. it ight not en! !ay in court fore#er as it can be with our without pre"u!ice
(1) Dismissal it+out &rejudice:
Correctable error
()) Dismissal it+ &rejudice:
May not refile another action
). 6oluntary Dismissal
a. By -laintiff
(1) This is often part of the settleent offer in e%change for !isissal
/. Involuntary Dismissal
a. In General
(1) Court has inherent power to !isiss a case. but ust consi!er less !rastic alternati#es
b. Discretionary
(1) /ailure to -rosecute
:;$M6L:%
#+e court may dismiss an action in +ic+ t+e defendant +as not been served it+ &rocess to years
after t+e filin" of t+e com&laint.
c. Mandatory
(1) Lac$ of Service
(a) The court ust !isiss an action in which:
the !efen!ant has not been ser#e! with process for thee years
()) /ailure to Come to #rial
(a) $n action ust be brought to trial within fi#e years after it has been coence! against the !efen!ant or
it will be !isisse!
VII. PRE-TRIAL
A. -re.#rial Conferences (OL 7II.$)
1. -ur&ose
a. 6re>trial conferences are generally hel! to:
(1) !eterine proce!ures at trial
()) ensure !isco#ery is coplete
(/) enable parties to settle the atter or agree upon certain issues
B. 3rders (OL 7II.B)
1. Typing the stipulations in the conference
VIII. TRIAL
A. Severin" or Consolidatin" Issues for #rial (OL 7III.$)
1. Severance
a. <eparate trial if "ustice re9uires it
). Joint #rials or Consolidation
a. 0oint trial if coon 9uestion of fact or law
/. 3rder of #rial
a. California applies the e7uity.first rule. which states that:
:9uitable issues are first trie! by the bench an! legal issues are then trie! by "ury
b. Aowe#er. California also follows the e7uitable clean.u& doctrine. which states that:
Bench can hear legal issues that are inci!ental to e9uitable issues
:;$M6L:%
6 re9uests an in"unction pre#enting 2 fro !uping cheicals fro his factory onto her lan!. <he also re9uests &'(( for
the cost of reo#al of the cheicals. The court woul! hear the e9uitable clai for in"unction. an! woul! probably apply
the e9uitable clean>up !octrine an! !eterine the aount of !aages she is entitle! to for the reo#al. Aowe#er. if 6
ha! as1e! for &)'(.((( in !aages for the !iinution in #alue of her lan!. the court woul! ha#e se#ere! the legal issue
an! sent it to the "ury.
B. #rial by Jury (OL 7III.B)
1. Jury 6erdict
a. Three 9uarters nee! to be #ote in fa#orF ,L1) is a win
). 4aiver
a. Must !ean! right to "ury trial or else it is wai#e!
/. Jurors
a. Selection
(1) 0u!ge an! opposing attorneys ay 9uestion the "ury panel at #oir !ire. In ci#il cases. each party gets si%
pereptory challenges.
()) C+allen"es for Cause
(a) If "ury !oes not fairly represent counity at large.
:;$M6L:%
Iplie! or actual bias woul! be groun!s to !isiss a "uror for cause.
b. 57ual -rotection !e7uirements
(1) selection ust coply with the Constitution8s :6C an! "urors ust not be e%clu!e! on the basis of race.
gen!er or national origin or other !iscriinatory reasons
5. 6erdicts
a. $ "eneral verdict is:
fin!ing for the pre#ailing party
b. $ s&ecial verdict is:
only conclusions of fact fro which the court will !raw the conclusions of law on which "u!gent will be entere!

C. Motions in Jury #rials (OL 7III.C)
1. 0onsuit
a. 2efen!ant ay o#e for nonsuit after plaintiff has presente! all e#i!ence to the "ury.
). Directed 6erdict
a. In General
(1) $fter all the e#i!ence has been presente!. either si!e can o#e for a !irecte! #er!ict. :9ui#alent of a
"u!gent of non suit. but the tiing is !ifferent
()) $gain. the court will consi!er:
only the sufficiency of the e#i!ence in support of the clais for relief or affirati#e !efense

/. Jud"ment 0otit+standin" t+e 6erdict =J036>
a. In General
(1) 0+O7 is a post>trial otion that ust be a!e within the sae tie frae as that for a otion for a new trial

()) Motion challenges the "ury8s #er!ict 3 e#i!ence is so clear that the #er!ict is wrong
D. Motion for 0e #rial (OL 7III.2)
1. Grounds
a. In California. the groun!s for granting a new trial are purely statutory:
the court has no !iscretion to grant
. $ new trial ay be grante! on all or part of the issues. on application of the aggrie#e! party. for any of the following
reasons:
(1) newly !isco#ere! e#i!ence
()) "uror iscon!ict
AB6OTA:TIC$L
$fter colli!ing with a truc1 while ri!ing his bicycle. a 1)>year>ol! boy sue! Truc1>Co. the copany owning the truc1. for !aages
for e%tensi#e personal in"uries. The father "oine! in the sae coplaint. see1ing reco#ery for e%penses he incurre! for the
treatent an! care of the in"ure! son. The case was trie! before a "ury. The plaintiffs8 tol! contra!ictory stories. but the "ury
ne#ertheless !eci!e! in their fa#or. If counsel for Truc1>Co a1es a tiely otion for a new trial. can the court grant the otionC
+o. otion for new trial ust be supporte! by reasons in the statute such as newly !isco#ere! e#i!ence or "uror iscon!uct.
Contra!ictory e#i!ence is not in the statute so the court has no !iscretion to grant a new trial.
5. Motions in 0on.Jury #rials (OL 7III.4)
1. Correction or Amendment of Jud"ment
a. Court can only correct clerical error such as wrong aount. an! not "u!icial errors which can only be correcte! by
new trial. otion to #acate "u!gent. appeal.
). !elief from Jud"ment
a. /or Mista$e) Inadvertence) Sur&rise) or 52cusable 0e"lect
(1) $pplication for this relief ust be a!e:
within a reasonable tie. up to si% onths. after the "u!gent is ta1en
b. Additur and !emittitur
(1) $ otion for additur is:
re9uest to increase aount of !aages awar!e!
()) $ otion for remittitur is:
re9uest to the "u!ge to re!uce the aount of !aages
AB6OTA:TIC$L
6aul recei#es a notice that he is being ser#e! with a paternity suit an! a !ean! for chil! support. Ae was out of the country
at the tie the chil! was concei#e! an! !oes not 1now the other. Ae tal1s to an a!inistrator at <ocial <er#ices who tells
hi that she will ta1e care of it an! he can ignore the notice. Ae !oes so. an! a !efault "u!gent is entere! against hi.
=hat groun!s for relief can he assertC
6laintiff can challenge !efault "u!gent by showing surprise. neglect. ista1e or ina!#ertence. 6aul can assert e%cusable
neglect as he recei#e! false inforation fro << a!inistrator. which is why he ignore! the "u!gent. It is reasonable to
rely on official a!#ice fro go#ernent. Courts fa#or "u!gent on erits so if it is a close call. "u!gent shoul! be set
asi!e.

IX. FINALITY OF JUDGMENT AND APPEAL
A. -rimary !i"+t Doctrine (OL I;.$)
1. California follows the priary right !octrine in !eterining whether a litigant is allowe! to bring a new cause of action in
a subse9uent lawsuit.
). The priary right !octrine states that:
plaintiff is entitle! to clai for each #iolation of a priary right to be free fro specific har
:;$M6L:%
If 2 crashes his car into 68s car. an! 6 files a clai only for property !aage for har to her #ehicle. 6 is not
preclu!e! fro filing a later clai for personal in"ury. which is a !ifferent priary right.
/. This !octrine is in contrast to the occurrence or transaction doctrine in ost "uris!ictions. where all causes of action
relate! to a single inci!ent ust be inclu!e! in the sae suit.
B. Res Judicata and Collateral 5sto&&el as -rotections A"ainst !eliti"ation of t+e Same Claims and Issues (OL I;.B)
1. 5es judicata is the ubrella ter for pre#enting relitigation of atters !eci!e! in prior a!"u!ications. It is !i#i!e! into
two a"or categories:
a. 5es judicata refers to clai preclusion.
b. Collateral estoppel refers to issue preclusion.
). #est for Res Judicata =Claim -reclusion>
a. Claim &reclusion applies where:
(1) sae parties
()) final "u!gent on the erits
(/) sae clai or cause of action
(5) secon! cause of action was or coul! ha#e been litigate! in the first case
/. #est for Collateral 5sto&&el =Issue -reclusion>
a. It applies when:
(1) issue sub"ect of secon! action i!entical to issue in first action
()) issue actually litigate! in first action an! was necessary to "u!gent in first action
(/) final !eterination on the erits
(5) party against who preclusion is sought was a party or in pri#ity with party in first suit
C. /inality of Jud"ment (OL I;.C)
1. -arties Bound by Jud"ment
a. Tra!itionally. res judicata applie! only where:
there was a utuality of parties
(1) To!ay. howe#er. utuality of estoppel is no longer re9uire!. an! a "u!gent will be effecti#e:
against the foral parties to the subse9uent lawsuit an! all persons in pri#ity with those parties

b. California has an e%pan!e! !efinition of &rivity. which inclu!es situations in which the relationship between the
parties is Gsufficiently closeH to "ustify estoppel.
). Use of Collateral 5sto&&el
a. Mo!ernly. collateral estoppel can be use!:
offensi#ely or !efensi#ely by the original parties an! by parties not in#ol#e! in prior litigation
:;$M6L:%
Two passengers are in"ure! in an airplane crash. 6assenger $ sues the airline. an! the court !eterines that its
operation of the aircraft fell short of the re9uisite of care. If 6assenger B later sues the airline in a separate suit.
6assenger B can argue that the airline is collaterally estoppe! fro arguing that its con!uct satisfie! the !uty of
care. Con#ersely. if the first court !eterines that the airline satisfie! the applicable !uty of care in operating the
aircraft. the airline can argue that 6assenger B is collaterally estoppe! fro arguing that it !i! not satisfy the
applicable !uty of care.
/. Securin" and 5nforcin" Jud"ments
a. The courts an! legislature ha#e pro#i!e! eans by which to enforce a "u!gent an! secure a "u!gent in
a!#ance.
D. A&&eal (OL I;.2)
1. In General
a. $n appeal ay be ta1en:
only fro the final "u!gent in an action
b. $ party ay not appeal:
an interlocutory or!er. "u!gents of contept. or!er granting or !enying petition for issuance of writ of an!aus
in liite! ci#il case.
). A&&ealable 3rders
a. :%aples of appealable or!ers inclu!e:
(1) or!ers !enying or granting suary "u!gent
()) or!ers for final "u!gent
(/) or!ers granting a new trial or !enial a otion for 0+O7
(5) or!ers granting or !issol#ing an in"unction
(') or!ers granting a otion to 9uash ser#ice or a suons or stay an action base! on foru non con#eniens

AB6OTA:TIC$L
6hyllis sues 2an an! 2ina. "oint tortfeasors. for negligence. battery. assault. an! false iprisonent. $t the plea!ings stage.
the court !isisses the negligence count against 2ina but not 2an. Can 6hyllis appeal the ruling at this point. or ust she
wait until the final "u!gent on all countsC
Court has !isisse! one cause of action against one !efen!ant but not another. $llowing appeal at this point ay lea! to
pieceeal appeals. an! #arying "u!gents with respect to !ifferent parties to the lawsuit. This sees ore li1e an
interlocutory or!er. rather than a final "u!gent. so it is not appealable until after the trial is o#er.

X. ALTERNATIVE DISPUTE RESOLUTION
A. Arbitration (OL ;.$)
1. Contractual Arbitration
a. Court will copel the parties to arbitrate their contract !ispute. It is usual bin!ing. enforceable an! sub"ect to #ery
little court re#iew
b. Court !evie of Arbitral -roceedin"s
(1) +ot re#iew the arbitrators ista1e unless there is a huge frau!. 0u!gent is final
). Judicial Arbitration
a. +ot bin!ing on the parties
b. The court ay or!er "u!icial arbitration:
The court ay or!er arbitration in cases in#ol#ing less than &'((((.
c. +o "ury. an! each si!e presents it case to a neutral person or arbitrator. :ach party can re"ect the !ecision an! ta1e
the case to trial
B. Mediation (OL ;.2)
1. 2iffers fro arbitration in that the parties negotiate an agreeent that is less rule>boun! than arbitration. There is no
!ecision>a1er in e!iation. It is a facilitate! settleent
C. 0e"otiation (OL ;.:)
1. ,,- offer is a statutory offer to settle in California.
). The benefit of these offers is:
offering to settle by paying oney
/. If the offer is refuse!:
penalties to be ipose!
a. 6enalties inclu!e:
(1) not entitle! to reco#er court costs !espite being pre#ailing party. an! if plaintiff refuses the ,,-. he ust pay
offering !efen!ant8s court costs fro tie of offer
()) ight ha#e to pay the e%pert of the other si!e
AB6OTA:TIC$L
2efen!ant files a ,,- offer with the court stating. GI a willing to gi#e you &1((.((( to settle this case.H 6laintiff re"ects the offer.
thin1ing it is ri!iculously low. 6laintiff obtains a "u!gent of &J(.((( at trial. $lthough 6laintiff is the pre#ailing party. can she
reco#er her post>offer court costsC =hat. if anything. ust she pay 2efen!antC
=ithout ,,- offer to settle. 6laintiff can reco#er &J(.((( plus all costs. Aowe#er. a plaintiff who re"ects !efen!ant8s ,,-
offer has to pay !efen!ant court costs after the ,,- offer an! for any e%pert witnesses use! in trial. Aere. 6 gets only
&J(.((( an! cannot get court to gi#e any fees post the offer. 6 ay also ha#e to pay !efen!ant8s e%pert an! court costs.
BAR EXAM APPLICATION
Duestion '
$pplicants ay be as1e! to analyEe issues arising fro facts siilar to the following:
2anco. a anufacturer incorporate! an! hea!9uartere! in Oregon. eploye! 6at. a resi!ent of California. as its California
salesperson fro 1,,( to )(((. In 1,,,. To. an Oregon resi!ent. was hire! as 2anco8s sales anager at the 2anco
hea!9uarters in Oregon. In )(((. To increase! sales 9uotas an! pressure! 6at to re!uce lea! ties between initial contract
an! final sale. 2espite se#eral warnings to increase sales. 6at faile! to eet the new 9uotas an! was fire! on his '(th birth!ay.
2anco cease! !oing business in California. an! the sales were ne#er coplete!. $fter fruitless attepts to fin! another "ob. 6at
sue! 2anco in a @.<. 2istrict Court locate! in California for breach of a fe!eral age !iscriination statute an! breach of contract
base! on failure to pay &/(.((( of anticipate! coissions. The @.<. 2istrict Court grante! 2anco8s otion for suary
"u!gent on the age !iscriination clai. an! !isisse! the breach of contract clai on the groun!s of lac1 of sub"ect atter
"uris!iction. 6at later learne! that two prospecti#e California eployers ha! refuse! to hire hi because of negati#e references
gi#en by To. 6at sue! both 2anco an! To in trial court for age !iscriination un!er California law. breach of contract (unpai!
coissions). an! !efaation. 2anco an! To file! otions for suary "u!gent. claiing that the fe!eral "u!gent was a
bar to 6at8s clai. The court !enie! these otions.
Is the fe!eral court "u!gent a bar to any of 6at8s clais against either !efen!antC
$pplicants ust consi!er the !octrines or res judicata an! collateral estoppel an! !iscuss whether these !efenses are
a#ailable to either 2anco or To.
5es judicata or claim preclusion applies when the parties in oth actions are the same or have privity with one another! where
there has een a final judgment on the merits! and the second cause of action was or could have een litigated in the first
case. In the first action! 3at sued Danco for reach of federal age discrimination statute and reach of contract. %ummary
judgment was granted for the age discrimination claim in favor of Danco! and the reach of contract claim as dismissed for lac+
of suject matter jurisdiction.
The parties are the same and there was a final judgment on merits. 6ut the claims appear to e different. 3at is now suing for
defamation and a state cause of action reach of contract for unpaid commissions in "alifornia court. This is amiguous! ut
not identical. Additionally! the reach of contract claim for anticipated commission was not litigated as there was no jurisdiction
There is also no final judgment on the merits as the contract claim was dismissed for lac+ of jurisdiction. 6oth claims should
survive under claim preclusion as the claims are not identical in the second case.
"ollateral estoppel or issue preclusion is a more relaxed rule than res judicata. .or an issue to e arred under collateral
estoppel! it must have een an issue in the first action! which was necessary to the judgment in the first case! and the party
against whom preclusion is sought was party in the first suit or has privity with the party in the first suit. "ollateral estoppel can
e used offensively or defensively.
'ot sure if there is privity with Tom here ut Danco is the same party. $ere! the issue may not e the same etween the
federal and state claim of action. The contract action appears to e similar ut the issue was not litigated in the first case.
There is also no final judgment on the merits as the contract claim was dismissed for lac+ of jurisdiction. The defamation issue
could not have een an issue in the first action! so that claim cannot e estopped. It appears that the Defendants cannot use
collateral estoppel here for either issues as the issues were not litigated previously.
BAR EXAM APPLICATION
Duestion J
$pplicants were as1e! to analyEe issues arising fro facts siilar to the following:
6aul was in"ure! two years ago by a !efecti#ely constructe! achine while wor1ing in an in!ustrial plant in California. The
achine ha! been anufacture! by Manco. 2oc treate! 6aul for his in"uries in a California hospital. 2uring the course of the
treatent. 2oc prescribe! e!ication to which 6aul was allergic. 6aul8s con!ition worsene! gra!ually after that. but it is
unclear whether his !ecline was !ue to the !rug or to the progression of his in"uries. 6aul sue! the hospital for negligence in
the California <uperior Court. The hospital8s !efense was that: (1) it was not responsible for the acts of 2oc because he was an
in!epen!ent contractorF ()) 2oc ha! not been negligentF an! (/) the worsening of 6aul8s con!ition was a result of the in"ury. not
the e!ication. $fter a bench trial. the court rule! in fa#or of the hospital. hol!ing that 2oc ha! not acte! negligently an! was
not an agent of the hospital. The court rule! that it nee! not reach the causation issue with respect to the reason for the
worsening of 6aul8s con!ition. +o appeal was ta1en. 6aul later !ie! fro his con!ition. an! =an!a. his wi!ow an! e%ecutor of
his estate. tiely sue! Manco an! 2oc for 6aul8s in"uries an! !eath in California state court. 2oc tiely o#e! to !isiss on
the groun!s that the suit was barre! by res judicata an! collateral estoppel. $ certifie! copy of the "u!gent in 6aul8s suit
against the hospital was attache! to the otion. The otion was !enie!.
2i! the court rule correctly on 2oc8s otion to !isiss on groun!s of res judicata an! collateral estoppelC
$pplicants ust consi!er the eleents of clai preclusion against 2oc.
5es judicata or claim preclusion applies when the parties in oth actions are the same or have privity with one another! where
there has een a final judgment on the merits! and the second cause of action was or could have een litigated in the first
case.
$ere we do not have the same parties. 6ut we do have privity since wife is suing on ehalf of husand#s estate. 'o appeal was
filed so final judgment is present. There is also same cause of action as the claim is over who is responsile for the injuries.
7verything ut causation was litigated in the first trial ut it could have een litigated. It appears that the court decided
incorrectly on the motion to dismiss on grounds of res judicata for the doctor.
$owever! 8anco can still e sued in the second case.
"ollateral estoppel or issue preclusion is a more relaxed rule than res judicata. .or an issue to e arred under collateral
estoppel! it must have een a litigated issue in the first action! which was necessary to the judgment in the first case! and the
party against whom preclusion is sought was party in the first suit or has privity with the party in the first suit. "ollateral
estoppel can e used offensively or defensively.
The issue is the same as we are loo+ing for responsiility for injuries. The issue was litigated in the first case! at least!
everything except causation. There is also privity etween the parties in the case. "ollateral estoppel can also wor+ for the
doctor ut perhaps not for 8anco who was not party and not in privity to the first suit.