Cal Civ Pro Outline (Wagstaffe, Spring 2010)
1. Pre Lawsuit Notice
a. For some types of lawsuits, you need to give the defendant notice before filing.
i. E.g., Civil Code 48(a)
1. Damages action for libel or slander—have to demand correction within 20 days after knowledge of publication or broadcast.
2. Who
a. Libel/slander
b. Newspapers
c. Tv/radio
3. What
a. Written demand
b. Publisher/broadcaster
c. ID the falsities
4. When
a. Demand: 20 days
b. Correct: 3 weeks
5. Where and How
a. Same location
b. Full & fair
c. Damage limits
6. Consequences
a. if they don’t demand, or if it is broadcast and published, they only get special.)
b. If they demand and one isn’t published, they can get more
ii. E.g., Civil Code 364 (“MICRA”).
1. In professional negligence suit against health care provider, need provide notice 90 days prior to commencement of litigation.
2. Does not apply to DOE defendants
iii. GC 912.4, 945.4
1. Claims for torts against the state government or locality. Must give notice w/in six months of the accrual of the claim.
iv. Assorted Other Claims Requiring Notice
1. Claims against decedent’s estates (4 months after issuance of letters)
2. CLRA (CC 1750, 1782): give notice in advance and give D a chance to cure.
3. Mandatory Fee Arbitration (B&P 6200) if client commences.
b. Court Orders Required
i. Civil Code 425.13-14
1. Punitive Damages Against Health Care Provider or Religious Org—need to get court order before filing.
2. Court can grant order allowing you to amend pleadings to add punitives if it finds substantial probability that plaintiff will prevail on the claim.
3. Non-speaking motion when you try to add punitives.
4. Rationale: prevent somebody from extorting settlement—reputational harm to docs.
ii. CCP 425.15
1. Negligence claims v nonprofits, similar to 425.13-14 (need to present facts giving court reasonable basis to believe there’s a COA for negligence)
iii. E.g. CC 1714.10
1. Conspiracy claims versus attorney s
a. If you’re sued for conspiring w/ client need a court order. This litigation will bring atty / client into conflict and require waiver of atty privilege
iv. E.g. CCP 340.1
1. Childhood sexual abuse
a. Procedure:
i. Bring lawsuit v. Doe
ii. Give Court facts and corroborating evidence
iii. Judge screens case to determine whether there’s a valid case
v. E.g. CCP 391
1. Vexatious litigants – if you sue too much once court declares you a vexatious litigant you have to go to court first and get permission
c. Certificates of Merit
i. CCP 411.35 requires a certificate of merit in connection with a lawsuit – actions for malpractice against architect, engineer, or land surveyor
1. Atty must file a certificate saying he talked to expert in the field and that this suit has merit.
d. ADR for CC&Rs
i. Actions for violations of covenants, conditions, and restrictions – have to go to ADR before filing suit.
e. Construction Defects (CCP 1375)
i. Notice req’d.
2. Personal Jurisdiction : The Power to Issue Coercive Judgments
a. Generally
i. the power of the court to issue a coercive judgment over the person
ii. Basis + Process. Need both. (although personal service in CA establishes personal jxn)
b. Basis
i. Four Bases
1. Long Arm (CA = extends to const. limit) (CCP 410.10)
2. Traditional Bases of JXN
a. CanDoPeople
i. Consent = consenting in a K, etc., appointing agent for service of process, etc.
ii. Domicile = living here or being corp w/ principal place of business
iii. Presence = being physically present while served (Burnham)
iv. General Appearance – recognizing authority of court to adjudicate the merits (410.50; GP = equivalent to personal service of summons on a party).
3. General Jurisdiction
a. Continuous & systematic contact w/ the forum state (but not related to the COA). If you have such continuous and systematic contacts, court has jxn over D for all COA against him.
i. Wagstaffe: if somebody has ^^^ kind of contact w/ state they typically don’t bring motions to quash. Comps. like Starbucks, McD’s have gen jxn in many places
4. Home Plate – Minimum Contacts Analysis (“specific jurisdiction”)
a. Does the Court have sufficient minimum contacts w/ the D so that issuance of a coercive judgment would not offend traditional notions of justice and fair play?
b. Factors
i. Purposeful availment – created a connection w/ the forum state (“how many rocks are there in the pile?”)
1. Purposefully and voluntarily directs activities towards forum state
2. Foreseeability of being hailed into court as a result of activities
3. Cf random, fortuitous, attenuated contacts
ii. Contacts arising from or connected to forum state
1. Claim must bear “substantial connection” to D’s forum contacts
2. Snowney:
a. No gen. jxn; Harrah’s doesn’t do systematic/continuous business in CA; specific jxn justified by directing lots of advertising to CA
b. Compare Snowney (phone call to CA = alleged wrong) w/ O’Connor v. Shady Lane Hotel slip and fall in casino (would satisfy a “but-for” but not a substantial connection type test; the “contact” was an ad.)
iii. Jurisdiction not unreasonable
1. Factors
a. Extent of D’s purposeful interjection
i. how much contacts
b. Burden on D
i. how difficult for D to defend here
c. Forum state’s interests in adjudication
i. two foreigners, or involving a CA citizen?
d. Most efficient judicial resolution
e. Existence of alternative forum
f. Shared interests of several states
2. Wagstaffe: it’s rare that first two elements met but court finds it unreasonable.
c. Burden of Proof: Plfs must demonstrate purposeful availment and that contacts arise out of forum related activities, D may then argue jurisdiction is unreasonable.
i. If contact w/ forum state was intentional D must show it is compellingly unreasonable.
c. Purposeful Availment Examples
i. Types of Cases
1. Products Liability
a. Manufacturer or national distributor
b. Retailer or regional distributor
c. Supplier of defective equipment
d. Cases: World Wide Volkswagen and Asahi
i. World Wide Volkswagen
1. Retailers/distributors: did they intend to create a relationship w/ the forum state?
2. Suppliers?
3. Manufacturers: Asahi:
a. Court held jxn was unreasonable when only D’s left were two Chinese D’s.
e. Caretti / Asahi
i. Merely putting product in stream of commerce doesn’t open you up to specific jurisdictio
In CA court, you petition for writ if your motion to quash is denied; in fed court, you have to defend on the merits after your 12(b)(2) is denied and then raise it on appeal.
3. Subject Matter Jurisdiction
a. Generally
i. State courts are courts of general jurisdiction. State courts can hear any type of case unless it arises out of some sort of federal statute (e.g., Sherman antitrust) that has exclusive federal jurisdiction.
b. Classification of Actions
i. Within state court there are different designations
1. Small claims
2. Limited civil
3. Unlimited civil
c. Determining Amount in Controversy
i. Prayer in complaint is determinative.
1. Legal Certainty Test: unless you could say as a legal certainty it’s more than/less than a certain amount, the complaint governs.
ii. Excludes interest and costs
iii. Includes attorney’s fees if not “costs” (what does the statute say?)
iv. Aggregation
1. No aggregation of multiple plfs.
a. w/ single plf v. single def, add up value of claims
b. if several plfs suing one def, we look at the amount per person
i. if any one of them is over 25K we have to get the case out of limited jxn
c. if they hold the right together (i.e., joint owners of property), then you have to add together.
d. Unlimited Civil
i. CCP 88: a civil action other than a limited civil case is classified as an unlimited civil case. Amount in controversy exceeds $25,000. Court has full range of equitable relief.
e. Limited Civil
i. CCP 86: amount in controversy is less than 25K. Court has restricted equitable and declaratory jurisdiction. (generally, if you want equitable relief you file it as unlimited civil).
f. Small Claims
i. Subset of limited jurisdiction; under 5K in controversy. See below.
g. Reclassification
i. Per Motion – Timing
1. Must make motion to reclassify at the time you’re supposed to answer
ii. Deny – Necessarily < 25,000.01
1. You deny unless the complaint is necessarily over 25K
iii. Grant – Cross Complaint
1. > 25K (CCP 403.030
2. if you have a cross complaint over 25K, that’s a classic grounds to reclassify
h. Limited Civil Attributes
i. No permanent injunctions (CCP 86(a)(8))
ii. No declaratory relief (CCP 86(a)(7)
iii. Limited Discovery (94-95)
1. Only one depo
iv. Case Questionnaire (CCP 93)
1. Plf sends out a thing under oath, saying, here are my witnesses, etc. who are yours?
2. This is like a Rule 26 disclosure in federal court.
3. If you serve it on the other side, then the D has to do one, too.
v. Witness Statements/Depos in Lieu of Live Testimony (CCP 98)
