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Civil Procedure I
San Joaquin College of Law
Cartier, Richard M.

CIV PRO Outline

Why Litigate?
3 judicial remedies – award money (Damages)
– coercive order (Equitable)
– declaratory relief
Legal vs. equitable
Substitutionary vs. specific
Plenary (final) vs. provisional (temporary)

I. Methods of Legal remedies: Damages – actual
medical bills – real costs

Compensatory – to compensate – nominal
when no damages – often $1

Punitive – to punish – liquidated
Constitutional restrictions BMW guideposts preagreed damages – in
Campbell $145:1 violates due process contract
(1)° of reprehensibility
(2) balance of harm – economic/noneconomic
(3) pun. damages in similar cases eco- joint/several non- % of
– no “bright line” fault
– 9:1 ratio
– appellate review – general specific

gen- (3-4x specific)hard to quantify pain and suffering

spec- things I have receipts for

Ejectment (eviction)

Replevin (Repo)

Mandamus (to force an action)

Habeas Corpus (bring person to ct)

II. Methods of Equitable remedies: Injunction – TRO
– to gain equitable you must show – preliminary
1.inadequency of legal remedy – permanent
2. irreparable harm
3. “balancing”? Specific Performance

Rescission

Sigma Chem. – emplyr allowed to enforce Reformation
restrictive covenant against emp. on balacing
of threaten harm Quite Title

Constructive Trust
III. Declaratory Relief – (asking court to rule before action)

Financing litigation
At what cost?
I.Cost * direct – atty, expert witnesses, filing fees
* indirect – time/focus

II. Atty. fees * hr./flat/contingent
– English Rule – loser pays
– American Rule – pay your own
– except common fund – fee shifting
contract – written in
common law – groundless suit
statute –“prevailing party”
-“catalyst theory”(CA)
public subsidies – legal aide

Injunctions
I. Permanent – final relief after trial
II. Preliminary – after hearing but before trial

STANDARD Test ALTERNATIVE Test
– Irreparable harm to Π – Irreparable harm to Π
– Π will probably win on merits – Either Π will win OR raise serious issues and Π harmed
– Δ not harmed more than Π (balance) by refusal more than Δ hurt by grant
– Public interest – Public interest

III. Temporary Restraining Order (TRO) – Rule 65(b)

Due Process Requirements for TRO
– Declaration or affidavit based on personal knowledge setting forth facts warranting a TRO
– Review by a judicial officer (not clerk)
– Opportunity for hearing
– Pre TRO
– Post TRO (if emergency circum)

IV. Ex-Parte TRO – no prior hearing

Bringing a Claim
I. Proper Court – Jurisdiction

Trial Process

I. Discovery –
1.asses + and – of case 2.obtain evidence 3.preserve

– Scope of discovery – any matter, not privileged, relevant to the claim or defense of any party

– 6-discovery tool
1.ea. gives basic info supporting claim
-only info intended to use
2.production of documents
3.oral/written depositions
4.written interrogatories
5.physical and mental exams
-only if health is in issue
6.request for admissions

II. Pretrial
– Default
– Dismissal
-Involuntary
-Voluntary
· Fed 2
· CA unlimited
– Summary judgment
III. Trial
– Directed verdict – judgment as a matter of law (JMOL)
no facts in question to go before the jury – bench decision
– Judgment notwithstanding the verdict (JNOV)
only 1 reasonable outcome
– New trial
misconduct
newly discovered evidence
legal error
IV. Former Adjudication

Res judicata – claim precl. Collateral Estoppel – issue precl.
1.same claim 1.same issue
2.decieded on the merits 2.actually litigated
3.final valid judgment 3.
4.same parties 4.