v SMJ: can’t be dismissed unless necessarily result in a lower amt (fed-strict)
Ø Small Claims: 5k or less (no discovery)
Ø Limited Civil Case: 25k or less (limited discovery)
§ No special demurrers à Motions to strike ONLY on the ground that the damages or relief sought are not supported by the allegations of the complaint
§ Use case questionnaires
· knowledge of relevant witnesses and their addresses, relevant documents, statement of damages, injuries, and insurance coverage
¨ P can force D.
· Failure to respond completely can result in penalties such as issue, evidentiary or terminating sanctions
§ 1 deposition per side
· Parties allowed to submit witness testimony by affidavit in lieu of oral testimony
Ø Unlimited Civil Case: 25k +
· No automatic discovery disclosure
v Reclassification
Ø Case can be reclassified any time during the case
§ by motion of any party OR judge’s discretion (judge can reclassify sua sponte).
· In order to reclassify a case as a limited case the case must be shown to “necessarily” fall below the 25,001 required for an unlimited civil case
· Only after notice to all parties and opportunity to be heard
Ø Factors judge looks at to reclassify:
§ prayer of the complaint
§ arbitration awards
§ settlement negotiations
Ø “doubtful that food poisoning worth 25k”
§ Damages not stated? No special damages stated??
v Personal Jurisdiction
Ø Service of Process à notice of lawsuit à 3 yrs (CCP); 60 days (local rules) Two types:
§ Summons + copy of complaint from clerk + acknowledgment of service (person signs form document acknowledging they have been served)
§ Substituted Service
· Upon a person:
Ø After reasonable diligence at personal service
§ ex: 3 x on 3 diff times of the day at dif times
Ø (summons + complaint) may be left at: person’s dwelling house, place of business or usual mailing address AND competent person (over 18) of household or person apparently in charge of office
Ø Another copy of (summons + complaints) must be mailed to same address
· Upon an entity/corporation: no reasonable diligent requirement
Ø Addressed to titled officer or expressly designated agent.
Ø Test: to see if person is agent, look to acts of principle
· By Mail: Mail a copy of summons and complaint, 2 copies of notice and acknowledgment, and a self addressed return envelope with postage prepaid.
Ø To attack Personal Jurisdiction
§ Motion to Quash
· Long arm statute
· Federal due process check – minimum contacts
§ Attacking Affirmative Defenses
v Joinder
Ø Cross Complaint: Person defending a complaint or cross complaint can bring a new party into the suit as long as it arises out of the same transaction.
Ø Class Action: permit persons to sue or be sued on behalf of others when there is:
§ Elements
Ø Must be certified by judge + judge must determine choice of law (pre-requisites)
Ø Numerosity Requirement / Ascertainable Class: does it make more sense to try all in 1 action – make sure there aren’t too many or too little
Ø Well Defined Community Interest: 3 factors:
§ Predominant common questions of law or fact
§ Class representatives with claims or defenses typical of the class
§ Class representatives who can adequately represent the class
§ Novel question of law? CA ct will look to FRCP
§ Judge can allocate the cost burden among the different parties.
§ Aggregation Allowed:Ps can aggregate their claims for a class action. (comes into play in limited v. unlimited case). Amt in excess of 25k.
v Venue (proper county in which to hear the case)
Ø Local Actions: all or some of the real property or interests in question is located.
Ø Transitory Actions: some or all of the D’s reside in at the time the suit is commenced. (all actions other than location actions)
Ø Mixed Actions or Mixed Venue: 2 or more conflicting venues
§ GR: Venue may be laid where any D’s reside or where the claim arose. (corp D’s reside = headquarters)
§ Special trumps General. Mixed action + special venue rule/provision in statute then special trumps general
Ø Transfer of Venue
§ for convenience of witnesses (not parties)
§ reason to believe that an impartial trial cannot be had
Ø Forum Non Conveniens: Court declines to hear the case b/c better forum. Court can dismiss or grant a stay to see what happens in another court. Factors:
§ parties residing
§ where evidence is
§ agreement between parties
§ where cause of action arose
§ balance between private interests of the litigant’s and the public’s interest
Ø EXAM: If Complaint says P lives in SD but D’s PPB is in San Francisco à raise venue
§ FIRST HEADNOTE: VENUE
· Default Rule: Where D resides.
· P.I.: where injury occurs
· Analysis: both SF
· Next day did p.i. arise in SD?
§ SECOND HEADNOTE: TRANSFER OF VENUE à Forum Non Conveniens
· Convenience of Witnesses
¨ Witnesses if any, SF
v Choice of Law: conflict between 1 or more states’ laws
Ø Analysis
§ Is there a conflict/difference between two forums’ laws?
§ Is there a true conflict? à Comparative Impairment
· Which state has the stronger interest?
· Whose interest would be impaired the most if other state law applied
Ø Burden on party who is advancing to show that its own state laws should be applied
v Pleadings: Filing Complaint & Answer
Ø Complaint: filing the complaint begins the lawsuit
§ Pre-filing Requirementsà Notice of Intent to sue shall be given to (1) Health Care Providers; (2) Government before filing suit.
· No certificate merit
·
arity requirement where there must be a fact for every element and for all causes that show how, when, where, to whom, and by what means.
· When to raise:
¨ Doe defendants: Must state charging allegations against doe defendants.
Ø When P is ignorant of the D’s name, he must state that fact in the complaint (state the unknown)… and such D may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly.
Ø According to case law, P must subjectively be ignorance of the D at the time of the injury.
¨ “without the charging allegations to help identify Doe defendants, it is impossible for the D to evaluate their potential liability exposure to this claim.
¨ It further prevents the D from conducting their own internal investigation to prepare a proper defense.
§ Special Demurrer: Even if P’s Complaint states facts sufficient to constitute a cause of action, Demurrer to the entire complaint for uncertainty, ambiguity and unintelligence.
· Facts of knowing, where, when, why, and how is missing. Examples:
¨ What amt, which D à Damages from D1? Or D2? Or D3?
Ø Statements entirely void of as to which defendant is responsible for which type of damage?
Ø Punitive damages or compensatory damages from which D?
Ø remember the that damages can’t be stated for P.I. or wrongful death
¨ P’s Complaint fails to state a claim upon which relief can be granted.
Ø Damages – none stated?
· Need to plead SMJ/Reclassification: P fails to establish why case falls under unlimited/limited.
¨ These statements alone do not indicate whether or not the P meets the jurisdictional amt that must be more than 25k, then it should be reclassified to a limited civil case.
· Punitive Damages?
¨ There are no facts to sustain that D’s conduct even rises to the level of fraud, malice or oppression to ascertain punitive damages.
§ Frivolous Pleadings à Motion to Strike
CALL OF THE QUESTION: Answer & Motion. P has filed a patently ridiculous complaint, filled with more holes than Swiss Cheese. D prays for that P pay this D’s costs and atty fees incurred as a result of having to defend this so-called lawsuit
