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Civil Procedure I
University of San Diego School of Law
Heiser, Walt William

Civil Procedure Heiser Fall 2017
Goals of Civil Procedure
Main Functions:
Designed to settle or terminate controversies
Provide state enforced forms of relief
Courts not only apply law, but they make law
Other Objectives
Should give all parties the assurance they are being fairly dealt with and before a reasonable tribunal
Should yield final and lasting adjudications
Substantive v Procedural Law
Substantive Law- rights and obligations of a person out of court, in the real world
Procedural Law- implementing substantive law interests in the court systems
Federal: Constitution, statutes, federal rules of civil procedure
State: State constitution, state statutes, and state rules of civil procedure
The Adversary System
Adversarial Nature- it’s up to the parties to present legal arguments and proof; the court issues judgments based on those. We want to let parties, who have their own direct interests to decide the content and move it through the court.
Party Presentation- both sides have the opportunity to present proof and the plaintiff determines the content of litigation
Party Prosecution- parties dictate the process; they move the case through the court system
Structure of the Court System
1. Federal Court System
(A). Trial courts:
District Court.
Divided geographically, some states have only one district court, some have several.
Judges typically reside individually.
“Diversity Jurisdiction” where the actions are between citizens of different states, and the amount in controversy exceeds $75,000.
“Federal Question” Actions by private individuals “arising under” federal law.  No regard to amount in controversy.
State courts have concurrent jurisdiction for some issues, and for others federal courts have exclusive jurisdictions. 
Jurisdiction for actions by or against federal government and its agencies.
Jurisdiction for admiralty or maritime suits (civil rights).
(B). Appellate Courts:
Determinations made in the federal district courts are ordinarily appealable to the courts of appeals, which is the intermediate appellate court of the federal system.
CA is the Court of Appeals for the Ninth Circuit.
Each court consists of several judges, who typically sit on panels of three.
(C). Supreme Court of the United States:
Original jurisdiction of a very limited class of cases, chiefly actions between States.
Otherwise it has appellate jurisdiction of cases originating in the lower federal courts and of certain types of cases originating in the courts of the states.
State courts – only those presenting decisive questions of federal law may be considered by the Supreme Court.
Ordinarily an appeal to the Supreme Court of the U.S. will be from the State’s Supreme Court.
The procedure for appellate review by the Supreme Court is writ of certiorari in virtually all cases.
2. State Court System
(A.) Trial courts
1. Courts of limited jurisdiction:
Courts that are authorized to hear and determine cases involving a relatively small amount in controversy and simple issues. 
Presided over by a justice of the peace.  Alternatively (or concurrently), the municipal court is presided over by a magistrate.  
Civil case amounts usually in small monetary amounts, and criminal cases are typically misdemeanors. 
Sometimes referred to as “small claims” court.
            2. Courts of general jurisdiction:
Trial courts usually organized around county lines for hearing of cases typically unlimited subject matter or amount in controversy. 
This is the trial court of general jurisdiction.  Known by different names, in California it is the Superior Court. 
State rules of procedure are considered in this court.  
In California, all trial proceedings are in a single trial court of general jurisdiction.
Hearings are conducted by a single judg
(B.) Appellate Courts:
1. Appeals from courts of limited jurisdiction:
Appeal of the determinations made by courts of limited jurisdiction. 
In some states, the mode of appeal is by trail de novo in the court of general jurisdiction – if a litigant is dissatisfied with the result in an inferior court, the case is retried in the court of general jurisdiction.
In other states, the mode of appeal is strictly review – the record of proceedings in the in inferior court is presented to the court of general jurisdiction for consideration of the correctness of the disposition of the case.
In some states the appeal  to the court of general jurisdiction is the final appeal and not further review may be obtaine
The disposition of the court of general juris. may itself be reviewed by further appeal.
2. Appeals from the courts of general jurisdiction:
All states permit appellate review of cases in courts of general juris.
The intermediate appellate court in Calif is called the

rials, frequently in the form of affidavits – sworn written statements of facts, given by competent witnesses.
Plaintiff will respond with its own memorandum of law and affidavits, and may request some discovery.
If he motion is granted, it will be the same as if the defendant had never been served at all.
If the defendant(s) fails to do anything after being served, the clerk would be notified that the defendant was in default and would apply to the court for a default hearing.
Judge would perform an ex parte hearing (in which only Smith is present) and enter a judgment against the defaulting defendant. 
If after being served there are extraordinary circumstances that prevented the defendant from passing on the complaint, the defendant may ask to set aside the judgment, and be permitted to make its defense.
Pleading in response to the complaint: the complaint must state a claim that is sufficient under the substantive law. 
Rules of procedure require that the complaint comply with rules of form.
Complaint must describe the claim in sufficient detail to give the defendant fair notice of the nature of the claim being asserted against them. 
If complaint does not comply with rules, it will be found insufficient in point of form.
General Demurrer: “Even if what you say is true, you are not entitled to recover under the substantive law.” Motion to dismiss for failure to state a claim. 
At this point, we are still talking about sufficiency in point of law, not its veracity in point of fact.
Answer: the pleading by which the defendant joins issue with plaintiff on the factual matters presented by the plaintiff’s claim. 
The denials constitute a negative defense.
An affirmative defense is where there are other factual circumstances which, if proven, would exonerate the defendants even if the facts alleged by the plaintiff are established.  (i.e. the heater blew up because the plaintiff put in the wrong kind of fuel.)