CIVIL PROCEDURE

CIVIL PROCEDURE—CALIFORNIA

TABLE OF CONTENTS

CIVIL PROCEDURE—CALIFORNIA

1 FIRST BIG TOPIC: ARE WE IN THE RIGHT COURT?  1

1.1 PERSONAL JURISDICTION  1
1.1.1 Basic Idea  1
a. Second (Constitutional) Question More Important in California  1
1.1.2 In Personam Jurisdiction  1
a. Statutory Analysis  1
b. Constitutional Analysis  2

1.2 SUBJECT MATTER JURISDICTION  2

1.2.1 Basic Idea  2
1.2.2 Superior Court  2
a. Limited Civil Case  2
b. Unlimited Civil Cases  3
c. Small Claims Cases  3
1.2.3 Classification and Reclassification  3
a. Plaintiff Initially Determines the Classification  3
b. Reclassification  3
c. Effect of Multiple Claims  4

1.3 VENUE  5
1.3.1 Basic Idea  5
1.3.2 Local Actions  5
1.3.3 Transitory Actions  6
a. Additional Venue in Contract Cases  6
b. Additional Venue in Personal Injury or Wrongful Death Cases  6
c. Action Against a Corporation or Unincorporated Business  6
d. Action Against a Nonresident of California  6

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1.3.4 “Mixed” Cases  8

1.3.5 Transfer of Venue  8
a. Original Venue Improper  8
b. Original Venue Proper  8
c. Forum and Venue Selection Clauses  8
1.3.6 Inconvenient Forum (Forum Non Coveniens)  9
a. Conditions May Be Imposed  9

2 SECOND BIG TOPIC: LEARNING ABOUT THE CASE  10

2.1 SERVICE OF PROCESS  10
2.1.1 Basic Idea  10
2.1.2 Who May Serve Process?  10
2.1.3 Methods for Serving Process Inside California  10
a. Personal Service  10
b. Substituted Service  10
c. Service by Mail  11
d. Corporations and Other Businesses  11
e. Service by Publication  11
2.1.4 Serving Process Outside California, But in the United States  11
a. Basis for Personal Jurisdiction Must Still Exist  12
2.1.5 Serving Process Outside of the United States  12
2.1.6 Immunity from Service  12
2.1.7 Service of Documents After Process  12

2.2 PLEADINGS  13
2.2.1 Basic Idea  13
2.2.2 Frivolous Litigation  13
2.2.3 Complaint  13
a. Contents of Complaint  13
b. Pleading Damages  14
c. Meaning of “Fact Pleading”  14

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d. Some Circumstances Require Heightened Pleading  14

e. Fictitious Defendants  15
f. Verified Pleadings  15
2.2.4 Defendant’s Response  15
a. General Demurrer  15
b. Special Demurrer  16
c. Special Rules About Demurrers  17
d. Motion to Quash Summons  17
e. Motion for Inconvenient Forum (Forum Non Coveniens)  19
f. Motion to Strike  19
g. Anti-SLAPP Motion to Strike  19
h. Answer  20
i. Timing  20
2.2.5 Claims by Defendant  20
a. Cross-Complaint Against the Plaintiff  20
b. Cross-Complaint Against a Co-Party  21
c. Cross-Complaint Against a Third-Party Defendant  21
d. Response by Plaintiff, Co-Party, or Third-Party Defendant  21
e. Service of Process Is Sometimes Required  21
2.2.6 Amending Pleadings  21
a. Right to Amend  22
b. Leave to Amend  22
c. Granting of Demurrer or Motion to Strike  22
d. Relation Back and Fictitious Defendants  22

2.3 DISCOVERY  23
2.3.1 Required Disclosures  23
2.3.2 Discovery Tools  23
a. Depositions  23
b. Electronically Stored Information (“ESI”)  23
c. Interrogatories  23

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d. Requests to Produce (Inspection Demand)  24

e. Medical Examination  24
f. Requests for Admission  24
g. Discovery in Limited Civil Cases  24
h. Supplemental Discovery in Unlimited Cases  25
2.3.3 Scope of Discovery  25
a. Standard  25
b. “Discoverable” Broader than “Admissible”  25
c. Privilege  25
d. Privacy  25
e. Work Product  26
f. Expert Witnesses  26
g. Enforcement of Discovery Rules  26

3 THIRD BIG TOPIC: COMPLEX CASES  28

3.1 JOINING PARTIES  28
3.1.1 Proper Plaintiffs and Defendants  28
3.1.2 Necessary and Indispensable Parties  28
3.1.3 Impleader  28
3.1.4 Intervention  28
3.1.5 Interpleader  28
3.1.6 The Class Action  28
a. Requirements  28
b. No Types of Class Actions  29
c. Notice  29
d. Opt Out  29
e. Appointment of Class Counsel Not Required  29
f. Approval of Settlement  29
g. Determining the Amount in Controversy  29

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4 FOURTH BIG TOPIC: ADJUDICATION  30

4.1 PRETRIAL ADJUDICATION  30
4.1.1 Preliminary Injunctive Relief  30
4.1.2 Voluntary Dismissal  30
4.1.3 Involuntary Dismissal  30
4.1.4 Default and Default Judgments  30
a. Service of Application  31
b. When Default Judgment May Be Entered by Clerk  31
c. Default Judgment by the Court  31
d. Setting Aside the Default or Default Judgment  31
4.1.5 Failure to Plead Facts Constituting a Cause of Action  31
4.1.6 Motion for Summary Judgment  31
a. Summary Judgment vs. Summary Disposition  32
b. Special California Procedural Points  32

4.2 CASE MANAGEMENT AND ALTERNATIVE DISPUTE RESOLUTION  32

4.2.1 Case Management Conference  32
4.2.2 “Fast Track”  33
4.2.3 Additional Conferences  33
4.2.4 Sanctions  33
4.2.5 Alternative Dispute Resolution  33
a. Judicial Arbitration  34
b. Contractual Arbitration  34

4.3 TRIAL, JUDGMENT, AND POST-TRIAL MOTIONS  34

4.3.1 Recovery  34
4.3.2 Jury Trial  35
a. Right to Jury  35
b. Requirement of Jury Demand  35
c. Number of Jurors  35
d. Jury Selection  36

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e. Verdict  36
f. Motion for Directed Verdict and Motion for Nonsuit  36
g. Motion for Judgment Notwithstanding the Verdict  36
4.3.3 Motion for a New Trial  37
a. Timing  37
b. Bases  37
c. Excessive (Remittitur) or Inadequate (Additur) Damages  37
4.3.4 Motion to Set Aside Judgment  37
4.3.5 Expedited Jury Trial  37

5 FIFTH BIG TOPIC: APPELLATE REVIEW  39

5.1 APPELLATE REVIEW  39
5.1.1 Basic Idea  39
a. Timing  39
b. Where Limited and Small Claims Are Appealed To  39
5.1.2 Final Judgment Rule  39
5.1.3 Interlocutory (Non-Final) Review  39
a. Statutory Grounds for Appeal  39
b. Collateral Order Rule  40
c. Extraordinary (or Peremptory) Writ  40

6 SIXTH BIG TOPIC: PRECLUSION  42

6.1 PRECLUSION  42
6.1.1 Basic Idea  42
6.1.2 How California Differs from Federal Law  42
a. Effect of Appeal  42
b. What Is “on the Merits” for Preclusion Purposes  43
6.1.3 Definition of Claim (or Cause of Action) for Claim Preclusion (Res Judicata)  43

7 CONFLICT OF LAWS  44
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7.1 INTRODUCTION  44

7.2 CALIFORNIA’S CONFLICT OF LAWS RULES  44

7.2.1 Tort Actions—Governmental Interest Approach   44
7.2.2 Contract Actions—Choice-of-Law Clauses   44

8 CONCLUSION  45
8.1 TOPICS FOR FOCUS  45

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CIVIL PROCEDURE—CALIFORNIA NOTES

1 FIRST BIG TOPIC: ARE WE IN THE

RIGHT COURT?
1.1 PERSONAL JURISDICTION
1.1.1 Basic Idea
Personal jurisdiction (“PJ”) involves one question. Can Plaintiff
sue Defendant in this state? PJ is not concerned with which
court we go to in that state–that involves subject matter juris-
diction (“SMJ”). Whether there’s PJ is a two-step analysis:
(1) There must be a state statute authorizing PJ over the
defendant; AND
(2) The exercise of PJ must be constitutional (due process).
Is this analysis different depending on whether the case will
be filed in federal court or state court? No! A federal court
will analyze whether it has PJ exactly as a state court in the
forum would.
a. Second (Constitutional) Question More Important in
California
Even though there are two steps to the analysis, in California
the first step is so easy that the essay questions have
focused on the second step (we’ll see why next).

1.1.2 In Personam Jurisdiction

In personam jurisdiction is required to impose a personal
obligation on the defendant.

a. Statutory Analysis
Most states have a series of statutes that allow PJ in different
situations, such as PJ over defendants who (1) are served with
process in the state, (2) are domiciled in the state, or (3) do
certain things (for example, commit a tortious act in the state,
conduct business in the state, etc.). In California, though, the
statutory analysis consists of one sentence. All you need to
say is:
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b. Constitutional Analysis
NOTES
We already did the constitutional analysis in federal civil
procedure! But because people love PJ, though, let’s do a
hypo.

HYPO 1A
Hotel in State A maintains an interactive website on
which people in State B can get rate information, make
reservations, and get driving directions from State B to the
hotel. Can this support specific jurisdiction in State B over
the State A hotel?

HYPO 1B
What if the Hotel maintained a passive website in State
A that only provides information. Would that constitute
purposeful availment of State B?

1.2 SUBJECT MATTER JURISDICTION

1.2.1 Basic Idea
Once we’ve decided we have PJ over the defendant in
California and that we’ll sue in state (not federal) court, we have
to find a court with subject matter jurisdiction (“SMJ”) over the
case. There is one trial court in California–the Superior Court.
Each of the 58 counties has one Superior Court.

1.2.2 Superior Court

The Superior Court has general subject matter jurisdic-
tion. What does this mean? It means the Superior Court can
hear almost any civil case. There are cases that the Superior
Court cannot hear, but these are very few. Cases arising
under some federal laws must be brought in federal court
(for example, patent infringement, bankruptcy, some federal
securities, and antitrust claims). But most cases arising under
federal law can be heard by state courts. Within the Superior
Court, there are different classifications of cases.

a. Limited Civil Case

A limited civil case is a civil case in which the amount
in controversy does not exceed $25,000. If the plaintiff

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demands exactly $25,000, that is a limited civil case. In a
limited civil case, you get limited discovery, cannot file a
NOTES
“special demurrer,” and have expedited jury trial. Also, a
limited case generally cannot grant a permanent injunction,
declaratory judgment, or determine title to land. But the
biggest limitation is that in a limited case, no claimant can
recover more than $25,000.

b. Unlimited Civil Cases

Unlimited civil cases include civil cases in which the plaintiff
sues to determine title to land or seeks “general equitable
relief.” What are examples of “general equitable relief”?
Permanent injunctions and declaratory relief. If damages are
sought, they must exceed $25,000.

c. Small Claims Cases

Small claims cases aren’t a big deal for bar exam purposes.
They are heard in a small claims division of the Superior
Court, and procedures are simple. Litigants often do not have
lawyers (which kind of explains why it isn’t a big deal on the
exam). What is the amount in controversy for small claims
cases? $10,000 or less, and if the plaintiff is an entity, it is
$5,000 or less.

1.2.3 Classification and Reclassification

a. Plaintiff Initially Determines the Classification

The “amount of the demand, or the recovery sought, or the
value of the property, or the amount of the lien” in contro-
versy is considered to determine the case’s classification.
This does not include interest on the claim or costs. If plaintiff
files a limited civil case, she must note the classification in
the caption of the complaint, but does not have to note the
amount if the case is unlimited.

b. Reclassification
If a case is misclassified or if subsequent events make it clear
that the original classification should be changed, does the
court lose subject matter jurisdiction? No! The case is simply
reclassified. This can happen in two ways:

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• Automatic: If the plaintiff amends her complaint in a way
NOTES that changes the classification (that is, the amendment
raises or decreases the amount in controversy from limit-
ed to unlimited or unlimited to limited), the clerk of court
will reclassify the case.
• On motion: A party can move to reclassify, or the court
can reclassify on its own motion. When the court reclas-
sifies on its own motion, the court must give notice to
all parties and hold a hearing. In determining whether to
reclassify, can the court consider the merits of the under-
lying claim? No, we do not try the case to reclassify it.
Can the court consider materials beyond the pleadings?
Yes. And in fact, it must consider judicial arbitration
award.
If there is a motion to reclassify from unlimited to limited,
reclassification is OK if the judge finds that (1) the case will
necessarily result in a verdict of $25,000 or less; OR (2)
more than $25,000 is virtually unobtainable. If there is a
motion to reclassify from limited to unlimited, reclassifica-
tion is OK if the judge finds that there is a possibility that
the verdict will exceed $25,000.
c. Effect of Multiple Claims
The entire case is either limited or unlimited; so when you
have multiple plaintiffs, only one claim must meet the unlim-
ited requirements. And, no case is mixed, with some limited
and some unlimited aspects; it’s all or nothing. Finally, a plain-
tiff may aggregate claims to satisfy the amount in controversy
for an unlimited case.

HYPO 1C
Plaintiff asserts three unrelated claims against Defendant.
One claim is for $12,000, one is for $8,000, and the last is
for $6,000. Can this be filed as an unlimited civil case?

HYPO 1D
P-1 asserts a claim of $26,000 against Defendant and P-2
asserts a claim of $14,000 against the same Defendant in
the same case. Can this be filed as an unlimited civil case?
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HYPO 1E NOTES
Plaintiff sues Defendant for $20,000 in a limited civil case.
Defendant files a cross-complaint against Plaintiff for
$26,000. What happens?

HYPO 1F
Plaintiff sues Defendant for $26,000 in an unlimited case.
Defendant files a cross-complaint against Plaintiff for
$12,000. What happens?

1.3 VENUE
1.3.1 Basic Idea
We now know the case will be filed in Superior Court. But
where? Remember, in federal court, we lay venue in an
appropriate federal district. What is the relevant place for
laying venue in Superior Court? In an appropriate county in
California.

1.3.2 Local Actions

Remember again, we did not talk about local actions in federal
court. The doctrine has been abolished as a matter of federal
venue, but it is relevant in California state court. A local action
is a case for recovery of land, determination of an interest in
land, or to recover for injury to land (including trespass). In a
local action, venue is in the county where the land lies.

It’s easy to get mixed up on your exam about

CMR subtle distinctions. For example, note the some-
Exam Tip
what subtle difference in the venue rules as to
individuals. In California state courts, venue is proper in the
California county in which any defendant resides. However,
in federal court, for venue to be fixed on the basis of a
defendant’s residence, all defendants must reside in the
same state. In other words, in California state court, the fact
that all defendants don’t reside in the same county would
not, by itself, destroy venue, nor would the fact that one
defendant is a nonresident of California, but in federal court,
the fact that all defendants don’t reside in the same state
would make residential venue impossible.

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NOTES 1.3.3 Transitory Actions

What’s a transitory action? A transitory action is one that’s
not a local action. The general rule is: Venue is OK in a
county where any defendant resides when the case is filed.
a. Additional Venue in Contract Cases
In contract cases, venue also is OK in the county where the
contract was entered into or to be performed.

b. Additional Venue in Personal Injury or Wrongful

Death Cases
In personal injury or wrongful death cases, venue also is OK
in the county where injury occurred.

HYPO 1G
Paul, who resides in San Diego County, gets food
poisoning while eating at a restaurant in San Francisco.
The restaurant is owned by Dan, who resides in San
Francisco County. Paul sues Dan in Superior Court in San
Diego County. Is venue OK?

c. Action Against a Corporation or Unincorporated

Business
If the defendant is a corporation, venue is OK in the county
where (1) it has its principal place of business (“PPB”); (2) it
entered into or is to perform a contract; OR (3) the breach
occurred or liability arises. If the defendant is an unincorpo-
rated business, venue is OK in county of PPB if that is on
file with secretary of state. Otherwise, venue is where any
member or partner resides.

d. Action Against a Nonresident of California

What if all defendants are nonresidents of California? In such
a case, venue is OK in any county. But if there is a California
resident defendant, venue must be proper as to him.

HYPO 1H
Plaintiff sues D-1, who resides in Los Angeles County,
and D-2, who is a nonresident of the United States. The
suit concerns personal injury suffered in Orange County.
Where is venue proper?

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COMPARISON OF FEDERAL AND CALIFORNIA

VENUE RULES

FEDERAL CALIFORNIA

Judicial district where a substantial part Actions involving land must be

of the lawsuit’s events or omissions brought in the county court where the
occurred or where a substantial part of land is located.
the lawsuit’s property is located.
But
Or
Transitory actions must be brought in
Judicial district where any D resides, if the CA county where any D resides; if
all Ds reside in same state none, venue is proper in any CA
county.
But And

If neither of the above can be satisfied, Additional places of venue: contract

where any D is subject to personal actions may be brought in the CA
jurisdiction with respect to such action county where contract obligation was
to be performed or where contract was
entered; personal injury and wrongful
death actions may be brought in the
CA county where injury occurred

And

Venue in an action against a

corporation is proper in the CA county
where the contract was made or to be
performed, where the obligation or
liability arose, where the breach
occurred, or where it has its principal
place of business

And

Venue in an action against an

unincorporated association or a
partnership is proper in the CA county
where the entity has its principal place
of business, if the entity’s principal
place of business is on file with the
secretary of state; otherwise, venue is
CMR Chart proper in the CA county where a
member or partner resides

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NOTES 1.3.4 “Mixed” Cases

Say the plaintiff joins defendants or types of relief that call
for different venues. For example, the plaintiff might join a
local cause of action, for which venue is proper in Riverside
County, with a transitory cause of action, for which venue is
proper in Alameda County. What is the proper venue? The
rule that applies to the main relief sought is used.

1.3.5 Transfer of Venue

When venue is transferred, the case is moved from the
Superior Court in one county in California to the Superior
Court in another county in California. A California state court
cannot transfer a case to a different state. A federal court in
California can transfer a case to another federal district court
outside of the state boundaries since federal district courts
are considered to be part of the same court system.

a. Original Venue Improper

If the original venue is improper, the defendant can move to
transfer to a proper county. When must this motion be made?
It must be made with or before the answer, demurrer, or
motion to strike.

b. Original Venue Proper

If the original venue is proper, a court may, on motion,
transfer if:

(1) There is reason to believe impartial trial cannot be had in

the original venue;

(2) Convenience of witnesses and ends of justice would be

promoted; or

(3) No judge is qualified to act.

If the court grants the motion under this statute, it transfers

to a county on which the parties agree. What if the parties do
not agree? The court chooses a county.

c. Forum and Venue Selection Clauses

California courts enforce “reasonable” forum selection
clauses that call for the action to be tried in another state.
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Venue selection clauses will be upheld only if the chosen
venue would otherwise have been permissible under an
NOTES
applicable statute.

HYPO 1I
Plaintiff and Defendant enter into a valid provision (one
that is not unreasonable) requiring that litigation between
them shall be filed in Superior Court in Marin County.
Plaintiff sues in San Bernardino County. Will the court
enforce the venue selection clause by transferring the
case to Marin County?

1.3.6 Inconvenient Forum (Forum Non Coveniens)

As in federal court, “inconvenient forum” is where a court
dismisses or stays because the far more convenient and
appropriate court is in a different judicial system, as when the
other court is a state court in Missouri or a court in a foreign
country. By California statute, state courts may dismiss
or stay on motion (by a party or by the court). To order a
dismissal or stay, the court must find that “in the interest
of substantial justice an action should be heard in a forum
outside [California].” The court looks at the same factors as in
federal court.

a. Conditions May Be Imposed

If the court grants the motion, it may do so on condition. For
example, the court may require that the defendant waive a
personal jurisdiction or statute of limitations objections in the
other forum.

HYPO 1J
Plaintiff and Defendant enter into a valid forum selection
clause. It provides that litigation between them shall be
filed in state court in Maine. Plaintiff sues Defendant in
California on a cause of action covered by the forum
selection clause. What should Defendant do?

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NOTES 2 SECOND BIG TOPIC: LEARNING

ABOUT THE CASE
2.1 SERVICE OF PROCESS
2.1.1 Basic Idea
The defendant must be served with process (a summons and
a copy of the complaint). Service provides the defendant with
notice of the action, which is required by the Due Process
Clause. More practically, service also is what “gets the ball
rolling” for litigation. Without service, the defendant may not
know he is being sued.

2.1.2 Who May Serve Process?

Any nonparty who is at least 18 years old may serve
process.

2.1.3 Methods for Serving Process Inside California

a. Personal Service
Personal service means delivering to the defendant
anywhere in California and personal service is basically the
same as in federal court.

b. Substituted Service
Substituted service is service on another person at the
defendant’s usual place of abode. It is different from federal
court in several ways.
• Unlike in federal court, substituted service may be used
to serve an individual if personal service “cannot with
reasonable diligence” be had. So personal service must
first be attempted, and only thereafter may substituted
service be used;
• Process must be left with a competent member of the
household who is at least age 18, which is more specific
than federal court, which requires service be made on
someone of suitable age and discretion;
• The person served must be informed of the process’s
contents; AND
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• Process must also be mailed by first-class mail, postage
prepaid to the defendant.
NOTES

Substituted service is deemed effective on the 10th day after

mailing.

c. Service by Mail
For service by mail, a copy of summons and complaint and
two copies of acknowledgment (waiver form) are mailed
to the defendant, with self-addressed stamped envelope
addressed to the plaintiff. It works much like waiver in federal
court, except this is considered “service” and not “waiver of
service.” Two other points:

• The defendant has 20 days (instead of 30 days in federal

court) to return the form; and
• Service is deemed complete when the defendant exe-
cutes the waiver.
Is it OK to serve process inside California by mailing it return
receipt requested? No, it must have the defendant return the
acknowledgment form.

d. Corporations and Other Businesses

A corporation or other business entity is served by delivering
process to its agent for service of process or to an officer or
general manager. The agent may be served personally, or
process left with someone apparently in charge at her office
during usual office hours. Registered agent is served at the
registered office.

e. Service by Publication
Service by publication is available only on affidavit from the
plaintiff’s attorney showing that the defendant cannot be
served, and after demonstrating that the plaintiff’s attorney
used reasonable diligence in trying to serve the defendant in
another way. Service by publication is a last resort.

2.1.4 Serving Process Outside California, But in the

United States
Service outside of California but within the United States can

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be accomplished by any of the methods allowed for in-state
NOTES service.

Alternatively, domestic out-of-state service may be made by

mail, postage prepaid, return receipt requested. This is easier
than the in-state service by mail we saw before because
an acknowledgment form is not required. The mailing must
be return receipt requested, which is available through
the Postal Service. The person who delivers the mail to the
defendant has defendant sign a receipt showing that it was
received. This method cannot be used to serve process
inside California. Service of process by mail, prepaid, return
receipt requested is deemed effective on the 10th day after
mailing.

a. Basis for Personal Jurisdiction Must Still Exist

Even if service is successfully completed, a proper statu-
tory and constitutional basis must exist for the exercise of
personal jurisdiction over a defendant not present in the
state.

2.1.5 Serving Process Outside of the United States

Same as in federal court.

2.1.6 Immunity from Service

Unlike federal court, California does not have immunity from
service of process when the defendant is in the state to take
part in a court proceeding. So, a person in California to be a
witness or party in another civil case can be served for a civil
case in state courts, but is immune from service for a federal
civil case.

HYPO 2A
Defendant, a nonresident, is served with process in
Bakersfield while in California to be a witness or party in
a civil case. Is Defendant immune from being served with
process for a California state-court civil case?

2.1.7 Service of Documents After Process

Service of documents after initial service of process has not
been a big test topic. We cover it here because the word

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“service” is used for “service of process” and “service of
subsequent documents,” but what each requires for “service”
NOTES
is much different. Service of subsequent documents is much
less formal than service of process. As in federal court,
documents after initial service of process can be delivered or
mailed (or, if the party agrees, delivery may be by electronic
means). If mailed, five days are added to time required for
response (and 10 days if service is out of state). (Three days
are added in federal court.)

2.2 PLEADINGS
2.2.1 Basic Idea
The timing and some of the terminology are different from
federal court, as discussed below.

2.2.2 Frivolous Litigation

There are two general statutes regarding frivolous litigation
in California state practice.

• California has a statute that mirrors Federal Rule 11. It works

just like Federal Rule 11, with one exception: the 21-day safe
harbor provision that allows a party to withdraw an offend-
ing pleading applies not only in motions brought by a party,
but also when the court raises the issue on its own.
• Another statute allows the court to order a party or an
attorney (or both) to pay expenses and attorney’s fees in-
curred because of bad faith or frivolous tactics in litiga-
tion. “Frivolous” means something raised was completely
without merit or asserted for the sole purpose of harass-
ing an opposing party. There must be a motion (by a party
or the court) and an opportunity to be heard. The 21-day
safe harbor applies here too.

2.2.3 Complaint
California has always followed “fact pleading.”

a. Contents of Complaint

• There must be a statement of facts constituting the cause

of action, stated in ordinary and concise language. Facts

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mean the ultimate facts, as explained below.
NOTES
• There must be a demand for judgment (for the relief that
the pleader claims to be entitled).
• The plaintiff need not allege subject matter jurisdiction.
• Remember that, in a limited civil case, the caption to the
complaint must state it is a limited case.

b. Pleading Damages
If the plaintiff seeks damages, she generally must state the
amount claim.

• Exception #1: A plaintiff is forbidden from stating a dam-

ages amount in the complaint in a personal injury or
wrongful death action.
• Exception #2: Whenever the plaintiff claims punitive
damages, she is forbidden from stating the amount in the
complaint.
• So, in a personal injury or wrongful death case, or when
there’s a claim for punitive damages, how can a defen-
dant find out about the amount of actual damages?

The defendant requests statement of damages (“SOD”),

which the plaintiff must provide within 15 days. If the plain-
tiff fails to provide the SOD, the defendant can move for a
court order requiring her to do so. Additionally, in person-
al injury or wrongful death cases, or any time the plaintiff
seeks punitive damages, the plaintiff must serve SOD on
defendant before taking the defendant’s default.
c. Meaning of “Fact Pleading”
Remember the requirement of “fact pleading”? What does
this mean for a claimant? It means that the pleader must
allege the ultimate facts (that is, what the jury or judge as a
fact-finder must find for the party to prove its case) on each
element of each cause of action.

d. Some Circumstances Require Heightened Pleading

There are also “heightened pleading” requirements. The big

14
 CIVIL PROCEDURE—CALIFORNIA
one: circumstances constituting fraud must be pleaded
with particularity. Heightened pleading requirements also
NOTES
apply to civil conspiracy, tortious breach of contract, unfair
business practices, and products liability claims among
multiple defendants resulting from exposure to toxins.

e. Fictitious Defendants
If the plaintiff is genuinely unaware of the identity of a defen-
dant, she may name the defendant as a “Doe” defendant.
Theplaintiff must also allege that she is unaware of the
defendant’s true identity and must state the cause of action
against the “Doe” defendant (that’s a “charging allegation”).
Fictitious defendants may come up with statute of limita-
tions issues. (See “Relation Back and Fictitious Defendants”
below.)

HYPO 2B
Plaintiff, while walking in a crosswalk, is hit by a car driven
by D-1. D-1 had been rear-ended by a car driven by D-2,
which knocked D-1’s car into Plaintiff. After the wreck,
D-2 flees; he was driving a stolen car. Plaintiff sues D-1
by name and sues D-2 as a “Doe” defendant. Plaintiff
also alleges that she is unaware of D-2’s true identity and
states a charging allegation against D-2. Is this OK?

f. Verified Pleadings
Verified pleadings are signed under oath by the party.
They are rare, but are required, for example, in shareholder
derivative suits and for suits against government entities.
Remember this about verified pleadings: They can be
treated as evidence for summary judgment.

2.2.4 Defendant’s Response

Defendant must respond in an appropriate way within
30 days after service of process is deemed complete.
(Remember in federal court it’s 21 days after service.)

a. General Demurrer
A general demurrer can be used to assert some defenses.
Which is the most important? A demurrer based on a failure
to state facts sufficient to constitute a cause of action. This

15
CIVIL PROCEDURE—CALIFORNIA
demurrer is like the federal motion to dismiss for failure to
NOTES state a claim, so the court takes factual allegations as true
and limits its assessment to the complaint (and matters of
which it takes judicial notice). The demurrer asks: If these
facts were true, would the plaintiff win? If the answer is yes,
the demurrer would be overruled. If the general demurrer is
sustained, the court will usually let the plaintiff try again to
state a cause of action.

On the exam, watch for a general demurrer in a

CMR crossover question. The examiners could test the
Exam Tip
substantive elements of a cause of action and
whether the general demurrer should be sustained or
overruled.

A lack of subject matter jurisdiction also may be raised by

general demurrer. Defenses also may be raised in the answer
instead of by general demurrer as affirmative defenses. Or
these defenses can be raised in a motion “for judgment on
the pleadings” after the defendant has pleaded and time for
demurrer has expired. A general demurrer is considered to
be a pleading, but it acts like a motion because it can get the
case dismissed.

b. Special Demurrer
A special demurrer can be used to assert many (pretty minor)
defenses:

• The complaint is uncertain, ambiguous, or unintelligible.

This is like the federal motion for more definite statement;
• (Rare.) The complaint is unclear about which theories of
liability are asserted against each of the defendants;
• The lack of legal capacity;
• The existence of another case between the same parties
on the same cause of action;
• A defect or misjoinder of parties; and
• The failure to plead whether a contract is oral or written.

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 CIVIL PROCEDURE—CALIFORNIA
Instead of a special demurrer, the defendant can raise these
various defenses in his answer as affirmative defenses. If
NOTES
the defendant does not raise these defenses by demurrer or
answer, they are waived. As with the general demurrer, the
court treats allegations of fact as true and limits assessment
to what’s in the complaint (and matters of judicial notice). Like
a general demurrer, a special demurrer is considered to be a
pleading. Special demurrers are not available in limited civil
cases.

c. Special Rules About Demurrers

• Before filing any demurrer, the parties must meet and

confer (to try to work things out and avoid the demur-
rer) at least five days before filing the demurrer. If the par-
ties cannot meet in that time frame, the defendant gets
an automatic 30-day extension of time in which to answer
or demur. To get this extension, though, the defendant
must file and serve a declaration under oath that a good
faith effort to meet and confer was made and stating why
the parties could not do so on or before the date of the
demurrer is due. The 30-day extension runs from the time
the demurrer was due.
• If the parties do meet and confer, but the defendant then
files the demurrer, the defendant must include a decla-
ration under oath stating either that the parties met and
could not resolve the issues or that the other party failed
to meet and confer in good faith.
• The defendant must raise all matters in the demurrer.
So, if a plaintiff files a complaint, the defendant properly
demurs, and the court sustains the demurrer, but grants
the plaintiff leave to file an amended complaint, the de-
fendant cannot demur to this amended complaint on
grounds that were available to attack the first complaint.
• Terminology: Motions are either “granted” or “denied.”
What about demurrers? Demurrers are sustained or over-
ruled.
d. Motion to Quash Summons
A motion to quash summons is used to assert (1) a lack of
17
CIVIL PROCEDURE—CALIFORNIA
personal jurisdiction (“PJ”); (2) improper process; and (3)
NOTES improper service of process. When a defendant makes
a motion to quash service of summons is brought, she is
making a special appearance (contrasted with a “general
appearance”). A general appearance constitutes consent
to PJ. To avoid waiving the three defenses listed above, the
motion should be made before or with a demurrer, answer, or
motion to strike. If a general appearance is made, these three
defenses are waived.

• A general appearance is one that engages the merits of

the case or asks the court for relief. Examples of general
appearances include an answer, a demurrer, a motion to
strike, a motion to transfer venue, and a motion to reclas-
sify case.
• A defendant cannot file an answer in which he asserts the
affirmative defense of lack of personal jurisdiction. That
would be OK in federal court, because the defendant
raised PJ in his first Rule 12 response, but in state court,
the defendant has waived the defense of lack of personal
jurisdiction. He made a general appearance by answering
first, and cannot raise personal jurisdiction by affirmative
defense.
• But a defendant can file a motion to quash service of
summons at the same time as a demurrer, answer, or mo-
tion to strike. That is not a general appearance.

HYPO 2C
Plaintiff sues Defendant. Defendant files a demurrer and
then, two days later, files a motion to quash service of
summons. Defendant has waived the defenses of PJ,
improper process, and improper service of process. Why?

• If the court denies the motion to quash, the defendant

must “plead” within 15 days. And because demurrer is a
pleading, you could demur or answer within 15 days.
• If the court denies the motion to quash service of sum-
mons, and the defendant thinks the court is wrong, can
the defendant wait until final judgment and raise the issue

18
 CIVIL PROCEDURE—CALIFORNIA
on appeal? No. The only way to seek appellate review of
the denial of the motion to quash is to seek writ of man-
NOTES
date from the court of appeal.
e. Motion for Inconvenient Forum (Forum Non
Coveniens)
What is the timing for bringing a motion for inconvenient
forum (forum non conveniens)? The motion is waived if it is
raised after a demurrer or motion to strike. The motion may
be made in the defendant’s answer.

f. Motion to Strike
A motion to strike can be used to strike “irrelevant, false,
or improper matter,” like in federal court. For example, if
the plaintiff files a malpractice case against an architect,
engineer, or land surveyor without a “certificate of merit”
from the plaintiff’s lawyer, the defendant can attack the
complaint with a special demurrer, or he could move to strike
the entire complaint.

g. Anti-SLAPP Motion to Strike

The legislature is concerned about strategic lawsuits against
public participation (“SLAPP”). These are suits brought to chill
the valid exercise of First Amendment rights (for example,
speech, petition of government). What it does is shift the
burden to the plaintiff to show a probability of winning the
case on the merits.

HYPO 2D
Dee reports to the Health Department that Grocer has
violated various health ordinances. Grocer sues Dee. That
may be a SLAPP suit. The Grocer is suing Dee because
Dee exercised First Amendment rights. Dee makes an
anti-SLAPP motion to strike the suit. What happens if Dee
shows that he was sued for protected activity?

Because so many anti-SLAPP motions were made, the legis-

lature limited availability of the motion. So the defendant is
not supposed to make the motion if the plaintiff’s case is truly
in the public interest or on behalf of the general public. In
other words, the motion should not be made if the plaintiff

19
CIVIL PROCEDURE—CALIFORNIA
sues solely in the public interest or on behalf of the general
NOTES public. For example, let’s say the court grants Dee’s motion
to strike, so the case is stricken. Now Dee can sue Grocer for
malicious prosecution. This is called a “SLAPPback” suit.

h. Answer
An answer in California state court is like the answer in
federal court. A general denial is one where the defendant
denies each and every allegation in the plaintiff’s complaint.
A general denial is permitted if the defendant can do so
consistent with rules about frivolous litigation.

In stating affirmative defenses, the defendant must state the

ultimate facts sufficient to constitute an affirmative defense.

Additionally, if the plaintiff filed a verified (under oath)

complaint, the defendant must file a verified answer.

Can an answer include a demand for recovery against the

plaintiff, for example, for damages? No. The defendant must
file a cross-complaint.

i. Timing
No later than 30 days after service of process is deemed
complete, the defendant must (to avoid default) answer or
demur or make one of the motions noted.

2.2.5 Claims by Defendant

As in federal court, a defendant can assert a claim (1) against
the plaintiff (an opposing party), (2) against a co-defendant,
or (3) against an impleaded third-party defendant. In federal
court these claims had different names: (1) counterclaim, (2)
cross-claim, and (3) impleader. In Superior Court, all three
of these claims have the same name: a cross-complaint.
The cross-complaint must be a separate document from the
answer.

a. Cross-Complaint Against the Plaintiff

A cross-complaint against the plaintiff is like the federal
counterclaim, except that it is not part of the answer but rather
a separate document). A cross-complaint against the plaintiff
is to be filed before or at the same time as the answer.

20
 CIVIL PROCEDURE—CALIFORNIA
• This cross-complaint is against an opposing party (that is,
a defendant against a plaintiff).
NOTES

• If the cross-complaint by the defendant against the plain-

tiff arises from the same transaction or occurrence (“T/O”)
as the plaintiff’s cause of action against defendant, it is
compulsory.

• If the cross-complaint by defendant against plaintiff does

not arise from the same T/O as plaintiff’s cause of action,
it is not compulsory.

b. Cross-Complaint Against a Co-Party

A cross-complaint against a co-party is like the federal cross-
claim. It may be filed any time before the court has set a trial
date.

• It is a claim against a co-party, by a defending party.

• It must arise from the same T/O as the underlying dispute.
• It is never compulsory. The party may sue on this in a
separate case.

c. Cross-Complaint Against a Third-Party Defendant

A cross-complaint against a third-party defendant is like
federal impleader (third-party complaint). It may be filed any
time before the court has set a trial date. It is never compul-
sory, so you don’t have to file it. It is usually for indemnifica-
tion or contribution.

d. Response by Plaintiff, Co-Party, or Third-Party

Defendant
The party against whom any cross-complaint is asserted
must respond within 30 days of when service is effective.

e. Service of Process Is Sometimes Required

If the cross-complaint is asserted against someone who
has not yet appeared in the case, it must be served with a
summons.

2.2.6 Amending Pleadings

21
CIVIL PROCEDURE—CALIFORNIA

a. Right to Amend
NOTES
A plaintiff has a right to amend before the defendant files an
answer or demurrer, or even after the demurrer is filed but
before hearing on the issue raised by the demurrer. However,
this applies only if the plaintiff files the amended complaint
no later than the date for filing an opposition to the demurrer.
(So, a plaintiff does not have a right to file an amended
complaint the day before the hearing on the demurrer.)

b. Leave to Amend
Any party may seek leave to amend at any time. The same
standard applies as in federal court. Other rules about
amendment (to conform to the evidence, relation back, and
so on) work as they do in federal court.

c. Granting of Demurrer or Motion to Strike

If the court sustains a demurrer or grants a motion to
strike, the court will usually do so “with leave to amend.”
This allows the plaintiff to try again. If the court sustains
a demurrer or grants a motion to strike “without leave to
amend,” the plaintiff cannot try again.
Is there a limit to the number of times a complaint or
cross-complaint can be amended in response to the court’s
sustaining a demurrer? Yes. There can be no more than
three amended complaints unless claimant shows additional
facts to be pleaded to cure the problem.

d. Relation Back and Fictitious Defendants

Relation back means that the filing date for an amended
complaint is considered to be the filing date of the original
complaint for statute of limitations purposes. Relation back is
OK if:
• The original complaint was filed before the statute of
limitations ran and contained charging allegations against
the fictitious defendant(s);
• The plaintiff was genuinely ignorant of the identity of the
Doe defendant(s); and
• The plaintiff pleaded that ignorance in the original com-
plaint.
22
 CIVIL PROCEDURE—CALIFORNIA
If all of these are met, and if plaintiff substitutes the true
defendant within three years of filing, it relates back to the
NOTES
original complaint’s filing date.

2.3 DISCOVERY
2.3.1 Required Disclosures
Technically, there are no required disclosures in California
state court, but if all parties stipulate, the court can order
initial disclosures (similar to the initial required disclosures in
federal court).

2.3.2 Discovery Tools

The plaintiff must get a court order to take discovery from a
defendant within 10 days after he was served with process
(within 20 days to take the defendant’s deposition).

a. Depositions
Depositions (oral and on written question) are the same as in
federal court as to the basics. Different from federal court:
In state court, there is no presumptive limit on the number of
depositions to be taken in the case (whereas in federal court,
it’s no more than 10 unless court orders or parties agree). In
state and federal court, the presumption is that a deposition
consists of one day of seven hours.

b. Electronically Stored Information (“ESI”)

A deponent who is asked to produce ESI that is password
protected or otherwise inaccessible must provide either (1)
direct access to the ESI; or (2) a translation of the ESI in a
useable (readable) form.

c. Interrogatories
Interrogatories are the same as in federal court as to basics (for
example, they can be sent to parties only). There are form inter-
rogatories approved by the Judicial Council; there is no limit to
the number of form interrogatories that can be served on other
parties.

But what if a party wants to write “special” interrogatories?

That’s OK, but the maximum number of “special” (drafted)

23
CIVIL PROCEDURE—CALIFORNIA
interrogatories allowed in an unlimited civil case is 35, including
NOTES subparts. More may be served with declaration of need; but
the responding party can seek a protective order.

d. Requests to Produce (Inspection Demand)

Requests to produce are like requests to produce in federal
court. For electronically stored info (“ESI”), a party can
specify the form desired (hard copy or electronic). There is no
statutory limit on how many requests can be served without
court permission in an unlimited civil case. (But again, the
responding party can move for a protective order.)

The California statute does not allow use of requests to

produce to get information from a nonparty, but it is possible
to get discovery of things from a nonparty. How? A nonpar-
ty’s deposition may be “noticed” and the nonparty may be
served with a “subpoena duces tecum” that requires the
nonparty to also bring the specified things to the deposition.
For business records, the business can be served with a
subpoena without taking a deposition.

e. Medical Examination
As in federal court, a court order is required. Except in state
court, the defendant has a right to demand one physical
examination of the plaintiff in one kind of case. Which kind? A
personal injury case. In California, if it is a physical exam, the
lawyer for that person has the right to attend the examina-
tion. If it is a mental exam, the lawyer can attend only if there
is a court order allowing it.

f. Requests for Admission

Requests for admission are the same as in federal practice.
What is the maximum number of requests for admission that
can be served on a party in an unlimited civil case? It’s the
same as with interrogatories. However, there is no limit on the
number of requests to admit the genuineness of documents.

g. Discovery in Limited Civil Cases

When the plaintiff serves process, she includes a completed
form questionnaire containing basic information about the
case and a blank form for the defendant to complete. Beyond
that, one deposition may be taken. The parties can also
24
 CIVIL PROCEDURE—CALIFORNIA
ask for a combined total of 35 interrogatories, inspection
demands, and requests for admission. Shortly before trial, a
NOTES
party can request that the opponent disclose the witnesses
and evidence it intends to produce at trial.

h. Supplemental Discovery in Unlimited Cases

Unlike in federal court, there is no standing duty to supple-
ment discovery responses as long as the information
given was accurate and complete when given. Instead, the
requesting party can propound a “supplemental interroga-
tory” to elicit later-acquired information bearing on answers
previously made. Also, a party can propound a “supple-
mental demand for inspection,” which demands inspection of
later-acquired or later-discovered documents or things. So, in
state court, a party must seek supplemental discovery; the
limit is twice before trial date is set and once after that.

2.3.3 Scope of Discovery

a. Standard
A party can discover anything “relevant to the subject matter
involved in the pending action.”

b. “Discoverable” Broader than “Admissible”

Discoverable is broader than admissible. Discoverable
includes things that are “reasonably calculated to lead to the
discovery of admissible evidence.” The info requested need
not be admissible, just so it is reasonably calculated to lead
to admissible evidence.

c. Privilege
As in federal court, when a discovery request would intrude
on work product or privileged matter (for example, confiden-
tial communication between an attorney and her client), the
responding party must object with particularity or risk waiver.
A party claiming privilege/protection must provide the court
with a “privilege log,” as in federal court.

d. Privacy
The California Constitution recognizes a right of privacy,
which can be claimed to limit discovery. It is not absolute,
however. How does a court determine whether to allow

25
CIVIL PROCEDURE—CALIFORNIA
discovery? The court balances the need for the information
NOTES against need for privacy.

e. Work Product
In federal court, work product can be generated by the party
or any representative of a party, not just by the attorneys. In
California, the rule is not exactly the same. The material must
be generated by the attorney or her agent. Beyond this, it
works basically as in federal court. So a writing that reflects
an attorney’s impressions, conclusions, opinions, or legal
research is absolutely protected. A pro se party (not repre-
sented by a lawyer) can generate work product if it would be
work product if generated by an attorney.

f. Expert Witnesses
Once a trial date is set, any party may request the simulta-
neous exchange of expert witness information. Then each
party must exchange a list of experts to be called at trial,
declare the nature and substance of testimony, and the
expert’s qualifications. Reports by the expert also may be
demanded. A party may then take the expert’s deposition.
If a party does not exchange this information, the court may
exclude its expert from testifying. Generally, information
from/about consulting experts (who will not testify at trial)
cannot be discovered.

g. Enforcement of Discovery Rules

• Before the case management conference, parties must

meet to discuss various topics, including discovery and
potential problems with production of ESI. In addition,
theparties generally must meet and confer to work out
problems before seeking court orders.
• The court may sanction anyone, including a party and
attorney, who misuses the discovery process. The person
to be sanctioned must be given notice and a chance to
be heard.
• Sanctions include: (1) monetary sanction (expenses/attor-
ney’s fees incurred by other party); (2) an establishment
order (basically taking matters as established at trial); (3)

26
 CIVIL PROCEDURE—CALIFORNIA
refusal to allow party to support its position with evi-
dence at trial; (4) striking pleadings; (5) dismissing the
NOTES
plaintiff’s case; or (6) entering default judgment against
the defendant.
• The court will usually start with monetary sanctions and
move through the hierarchy as warranted. It has broad
discretion in selecting the appropriate sanction.
• When a party seeks sanctions for discovery misuse, she
must indicate the type of sanction sought in the motion.
• A party may seek a protective order to protect against
unwarranted annoyance, embarrassment, oppression,
burden, or expense. (Same as in federal court.)
• A party can object that ESI is not reasonably accessi-
ble because of undue burden or expense, but she must
identify the categories of sources that are not accessible.
(Same as in federal court.)

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CIVIL PROCEDURE—CALIFORNIA

NOTES 3 THIRD BIG TOPIC: COMPLEX

CASES
3.1 JOINING PARTIES
3.1.1 Proper Plaintiffs and Defendants
The joinder of plaintiffs and defendants works the same as in
federal court.

3.1.2 Necessary and Indispensable Parties

Joining necessary and indispensable parties works like in
federal practice and asks for “who should be joined.”

3.1.3 Impleader
Remember that impleader is where a defending party joins
someone new (third-party defendant) who may owe him
indemnity or contribution on the underlying claim. But in
California, it is asserted in a cross-complaint.

3.1.4 Intervention
Intervention works the same as in federal court.

3.1.5 Interpleader
Interpleader is where someone (the stakeholder) is in posses-
sion of property but knows that several people (claimants)
want it. The stakeholder does not want to get sued by each
of the claimants, so he sues them in “interpleader,” and the
court figures out who owns the property.

3.1.6 The Class Action

The state statute uses vastly different language than the
federal rule.

a. Requirements
The California statute says, “when the question is one of a
common or general interest, of many persons, . . . and it is
impracticable to bring them all before the court, one or more
may sue or defend for the benefit of all.” What does this
mean? It means that the following must be shown:

28
 CIVIL PROCEDURE—CALIFORNIA
• An ascertainable class; and
NOTES
• A well-defined community of interest.
In considering if there is a “well-defined community of
interest,” the court will look at whether (1) common questions
predominate; (2) the representative is adequate; and (3) the
class will result in substantial benefit to parties and court.

b. No Types of Class Actions

Unlike in federal court, where there are three types of
classes, there are no separate types of class actions under
state practice.

c. Notice
Notice may be given to the class by publication. Individual
notice is not required. In federal court, the cost of notice is
borne by the rrepresentative. What about in state court? In
California state court, the court decides who will pay: repre-
sentative, defendant, or shared.

d. Opt Out
All class members who do not opt out are bound by the class
judgment. Opt out may be allowed by the court.

e. Appointment of Class Counsel Not Required

California does not require the court to appoint class counsel.

f. Approval of Settlement
The court must approve settlement or dismissal of a class
action, as in federal court.

g. Determining the Amount in Controversy

The amount in controversy is aggregated. For example,
suppose a class has 26,000 members, each of whom has
been harmed $1. What is the amount in controversy for deter-
mining whether the case is limited or unlimited? $26,000.

29
CIVIL PROCEDURE—CALIFORNIA

NOTES 4 FOURTH BIG TOPIC:

ADJUDICATION
4.1 PRETRIAL ADJUDICATION
4.1.1 Preliminary Injunctive Relief
As in federal court, a party may seek a court order
maintaining the status quo pending litigation on the merits.
We discussed preliminary injunctions and TROs in the federal
civil procedure lecture, and knowing that material will put you
in a good position for the bar exam.

4.1.2 Voluntary Dismissal

The plaintiff can move to dismiss any time before trial starts.
The decision is for the court to make. Whether the dismissal
is with or without prejudice is up to the court. But if the plain-
tiff moves for voluntary dismissal after trial starts, and the
court grants it, the dismissal is with prejudice, unless the
parties agree otherwise or the court finds good cause to
dismiss without prejudice.

4.1.3 Involuntary Dismissal

All courts have authority to dismiss for failure to prosecute,
failure to abide by court orders or rule, and for the various
reasons that can be raised by demurrer, motions to quash,
etc.

• California state courts also have discretion to dismiss if

the case has not been brought to trial (or defendant has
not been served with process) within two years of filing.
• In California, the court must dismiss if (1) the case has not
been brought to trial within five years of filing, excluding
all periods when the case was stayed; or (2) process has
not been served within three years of filing, excluding
time where a stay made it impossible to serve process.

4.1.4 Default and Default Judgments

If the defendant fails to respond to the complaint within 30
days of the effective date of service of process on him, he

30
 CIVIL PROCEDURE—CALIFORNIA
is subject to a default and default judgment. The procedure
is very similar to federal court. As in federal court, cannot
NOTES
recover more than you asked for in your complaint.

a. Service of Application
The plaintiff’s application for entry of default must include
an affidavit stating that a copy of the application has been
mailed to the defendant or the defendant’s attorney of
record.

b. When Default Judgment May Be Entered by Clerk

A default judgment may be entered by the clerk without
a judge’s involvement if (1) the defendant has made no
response at all (that is, he has not appeared); (2) the claim is
on a contract or judgment; (3) the claim is for a sum certain
in money; (4) the defendant was not served by publication;
and (5) the plaintiff provides an affidavit stating relevant
facts.

c. Default Judgment by the Court

If any of the above is not true (that is, the clerk cannot enter
the judgment), the claimant must go to the court to get
judgment. What does the court do? The court will hold a
hearing and has discretion to enter judgment.

d. Setting Aside the Default or Default Judgment

The defendant may move to set aside default or default
judgment and for leave to defend the case based on mistake,
inadvertence, surprise, or excusable neglect, or because
service of process did not result in actual notice to the defen-
dant.

4.1.5 Failure to Plead Facts Constituting a Cause of

Action
Instead of the Federal Rule 12(b)(6), in state court a defendant
usually raises a failure to plead facts constituting a cause of
action with a general demurrer.

4.1.6 Motion for Summary Judgment

The standard for a motion for summary judgment in California
state court is the same as in federal court.

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CIVIL PROCEDURE—CALIFORNIA

a. Summary Judgment vs. Summary Disposition

NOTES
In California, summary judgment disposes of all causes of
action in a case. If a motion is aimed at determining less than
the whole case, for example, to determine liability but not
damages or to determine one of several causes of action, it is
called summary adjudication.

HYPO 4A
Assume the elements for the plaintiff’s cause of action
are W, X, Y, and Z. After discovery, the defendant moves
for summary judgment and shows that the plaintiff has no
evidence to support element X. What can happen if the
plaintiff does not proffer evidence of element X?

b. Special California Procedural Points

• The moving party must file and serve a separate state-

ment of material facts she claims to be undisputed, with
supporting evidence for each fact. If she does not, the
motion can be denied.
• If the moving party files and serves such a statement, the
opposing party must respond by indicating the facts he
believes to be in dispute and supporting evidence for
each fact. If theopposing party does not, the court may
grant summary judgment.
• The moving party must serve all papers at least 75 days
before the hearing on the motion. Opposition papers
must be filed at least 14 days before the hearing. Reply
papers by the moving party must be filed no more than
five days before the hearing. Judge rules on objections to
evidence for that evidence relevant to the motion.

4.2 CASE MANAGEMENT AND ALTERNATIVE

DISPUTE RESOLUTION
4.2.1 Case Management Conference
The court must hold an initial case management conference
within 180 days of the filing of the complaint. At the confer-
ence, the court reviews service, pleadings, discovery issues,

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potential problems with discovery of electronically stored
info (“ESI”), appropriateness of alternative dispute resolution
NOTES
(“ADR”), settlement, trial date, and so forth. Before the confer-
ence, the parties must meet and confer and file a “Case
Management Statement” addressing these issues. After the
conference, the court will issue a case management order.
This is like the Federal Rule 26(f) conference, but there is no
requirement that the parties form a discovery plan to submit
to the court.

4.2.2 “Fast Track”

The court reviews each case to determine suitability for
a case management program. Such cases are actively
managed to meet goals of disposition. For unlimited cases,
75% are to be disposed of within 12 months of filing, 85%
within 18 months of filing, and 100% within 24 months of
filing. For limited cases, 90% are to be disposed of within 12
months, 98% within 18 months, 100% within 24 months.

4.2.3 Additional Conferences

The court may order mandatory settlement conference (or
the parties may request one). Parties submit settlement
conference statement in advance, detailing the demand or
offer. Additional conferences may be held as needed.

4.2.4 Sanctions
The court may sanction a party or attorney for failing to
comply with rules or orders. For example, it may dismiss
defendants who are not served within 60 days of filing. A
sanction terminating the case is OK only if the failure to
comply was the fault of the party and not the attorney.

4.2.5 Alternative Dispute Resolution

Each county’s superior court has an alternative dispute
resolution (“ADR”) program to reduce court congestion. In
larger counties, most unlimited civil cases are submitted to
“judicial arbitration” if the judge is of the opinion that the
plaintiff will ultimately obtain $50,000 or less. However,
consumer class actions and probate cases cannot be sent to
judicial arbitration.

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a. Judicial Arbitration
NOTES
In judicial arbitration the court refers the case to an arbitrator,
who holds a hearing; rules of evidence do not apply. The
arbitrator’s decision becomes a judgment unless a party
demands trial de novo. But if that party does not get a better
result in trial than in the arbitration, that party may be liable
for the other side’s costs from the date of the rejection, the
other side’s expert witness fees, and interest on the claim
from the date of rejection (not from date of the judgment).
With judicial arbitration, the parties have discovery rights.

b. Contractual Arbitration
In “contractual arbitration,” parties agree in writing to
arbitrate a dispute. Such contracts are valid under Federal
Arbitration Act (“FAA”) and state law if they are not the
product of unconscionability. A party can ask federal or state
court to order arbitration per the agreement and can ask a
court to confirm the arbitrator’s decision. That decision can
be vacated only on limited grounds such as fraud, but usually
not for legal error. (Federal courts will vacate for arbitrator’s
manifest disregard of law, but California courts will not.)
California law does not allow consumer contracts to waive
class treatment and thus to require individual arbitration of
small claims. The FAA preempts this law and allows contracts
to require individual (not class) arbitration of small claims by
consumers.

4.3 TRIAL, JUDGMENT, AND POST-TRIAL

MOTIONS
4.3.1 Recovery
At trial, a party is not limited by the amount claimed in the
complaint or a cross-complaint. For example, let’s say that,
in her complaint, the plaintiff claims damages of $100,000.
Does the complaint limit the amount the plaintiff can recover
if the case goes to trial? No, she can recover whatever
the evidence supports. However, the complaint does limit
recovery in default judgment cases, and remember that,
in limited civil cases, no claimant may recover more than
$25,000.

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4.3.2 Jury Trial NOTES

a. Right to Jury
The Seventh Amendment does not apply in state court.
However, the California Constitution grants right to jury trial
along the same law/equity split as the Seventh Amendment.
Some matters are handled differently from federal court,
though.

• A litigant receives a jury to determine issues of fact relat-

ing to causes of action at law, not equity. If case involves
both law and equity, the jury determines the facts on the
law cause of action and judge determines the facts on
the equity cause of action. However, unlike federal court,
generally here the judge decides facts on equity cause of
action first.

• There is a slight difference between state and federal

court when the plaintiff’s complaint states an equity cause
of action, such as an injunction against future trespass,
and the complaint also seeks incidental damages for past
trespass. In federal court, there is a right to have a jury
determine the facts relating to damages. However, in Cal-
ifornia state courts, there is no jury at all because damag-
es are merely incidental to the equity cause of action. The
center of gravity of the case is the equity cause of action.
This is called the equity clean up doctrine.

b. Requirement of Jury Demand

A party must “announce” her demand for jury (orally or in
writing) at the time the case is set for trial or within five days
after notice of the setting of trial. Usually, this is made in the
case management statement. The failure to demand consti-
tutes waiver.

c. Number of Jurors
In state court, there are 12 jurors in civil cases unless the
parties agree in open court to a lesser number. If a juror is
excused for illness or other reason, an alternate juror takes
her place. If there is no alternate, trial continues unless a
party objects.

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d. Jury Selection
NOTES
In the voir dire process, each party may raise unlimited
challenges for cause (like in federal court, whether to strike
the potential juror is the judge’s decision). Also, each party
gets six peremptory challenges (in federal court it’s three per
side). Peremptory challenges may not be used on the basis of
“race, color, religion, sex, national origin, sexual orientation,
or similar grounds,” which is a little broader than in federal
court.

e. Verdict
In federal court, the jury verdict must be unanimous unless
the parties agree otherwise. What is required in state court?
In state court, 3/4th of the jury is required, so 9 of 12.

f. Motion for Directed Verdict and Motion for Nonsuit

This is what the federal courts call motions for judgment as
a matter of law (“JMOL”). The standard is: reasonable people
could not disagree as to the result. Technically, the parties
move for a directed verdict only at the close of all evidence.
If the defendant moves for this at the close of the plaintiff’s
opening statement or at the close of the plaintiff’s evidence
at trial, it is often called a motion for nonsuit.

g. Motion for Judgment Notwithstanding the Verdict

A motion for judgment notwithstanding the verdict (“JNOV”)
is what the federal courts call renewed motion for judgment
as a matter of law (“RJMOL”). The standard is the same as
directed verdict. So, the court is saying the jury reached a
conclusion reasonable people could not have reached. (The
same as in federal court.)

• As for timing, the moving party must file notice of inten-

tion to move either before entry of judgment or the ear-
lier of these: (1) 15 days of mailing or service of notice of
entry of judgment; or (2) 180 days after the actual entry of
judgment.
• In federal court, you must move for JMOL at trial to pre-
serve your right to move for RJMOL after trial. In state
court, must the party moving for JNOV have moved for
directed verdict at trial? No, there is no prerequisite.
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4.3.3 Motion for a New Trial NOTES

a. Timing
The timing is the same as a motion for JNOV (see above).

b. Bases
The bases are the same as in federal court: something
convinces the judge that the parties should retry the case;
that is, “that the error complained of has resulted in a miscar-
riage of justice.”

c. Excessive (Remittitur) or Inadequate (Additur)

Damages
One ground for new trial is excessive or inadequate
damages. A “shocks the conscience” standard is used. As
we saw in federal court, a court might try to avoid a new trial
on this basis by suggesting “remittitur” or “additur.” California
courts can use both remittitur and additur, whereas federal
courts can use remittitur only.

4.3.4 Motion to Set Aside Judgment

Motion to set aside judgment. A party may move to set aside
judgment because of “mistake, inadvertence, surprise, or
excusable neglect.” The motion must be made within reason-
able time, not to exceed six months after entry of judgment.
The court must set aside the judgment if the party’s appli-
cation is accompanied by a lawyer’s affidavit of her own
mistake, inadvertence, or neglect. In addition, a party can
move to set aside judgment if service of process did not
result in actual notice of the case to him.

4.3.5 Expedited Jury Trial

Most limited civil cases are subject to “mandatory expedited
trial.” (In unlimited cases, the parties may agree to “voluntary
expedited trial.”)

• There are eight jurors and four peremptory challenges

per side in an expedited jury trial.
• Six of eight jurors are needed to reach a verdict.
• Each side has up to five hours in which to complete voir
dire and present its case.
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• The parties may agree regarding how many witnesses,
NOTES evidence to be presented, etc.
• The parties may enter a “high/low” agreement, which
sets out the defendant’s minimum and maximum liability
for damages. The jury cannot be told of the existence or
terms of the high/low agreement.
• In a voluntary expedited jury trial, the parties waive the
right to appeal except in very limited circumstances (for
example, misconduct of judge, corruption that prevent-
ed fair trial). In a mandatory expedited jury trial, regular
appeal rights apply.

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5 FIFTH BIG TOPIC: APPELLATE NOTES

REVIEW
5.1 APPELLATE REVIEW
5.1.1 Basic Idea
In an unlimited case, the appeal is from the superior court to
the California court of appeal. The appeal is to the district of
the court of appeal to which the county is assigned.

a. Timing
Generally, the notice of appeal must be filed in the superior
court within 60 days after mailing or service of the “notice of
entry” of judgment; or 180 days after entry of judgment if no
notice is served.

b. Where Limited and Small Claims Are Appealed To

Judgments in limited civil cases and small claims matters are
appealed to the appellate department of the superior court.

5.1.2 Final Judgment Rule

Like federal courts, California follows the final judgment rule.
So generally, an appeal cannot be lodged until the merits of
the entire action are resolved.

HYPO 5A
Plaintiff sues D-1 and D-2. The trial court enters summary
adjudication in favor of D-2. Plaintiff would like to appeal
that judgment. In federal court, it would not be a final
judgment because the cause of action by Plaintiff against
D-1 is still pending, so the case is not wrapped up. In state
court, though, is a judgment wrapping up the dispute as to
one of several parties considered a final judgment and can
be appealed?

5.1.3 Interlocutory (Non-Final) Review

a. Statutory Grounds for Appeal
By statute, these orders are appealable:

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• One denying (not granting) certification of an entire class
NOTES action;
• One granting (not denying) new trial;
• One granting (not denying) a motion to quash service of
summons;
• One granting a dismissal or stay of a case for forum non
conveniens;
• One denying a motion for JNOV;
• One granting, dissolving, or refusing to grant or dissolve
an injunction; and
• One directing party or attorney to pay monetary sanctions
of over $5,000.
b. Collateral Order Rule
The court of appeal may hear appeal on (1) an issue collateral
to the merits of the case (2) that the trial court has decided
finally, if (3) it directs payment of money or performance of an
act.

c. Extraordinary (or Peremptory) Writ

If an order is not otherwise appealable, the aggrieved party
may seek a writ of mandate (to compel a lower court to do
something the law requires) or prohibition (to stop a lower
court from doing something the law does not allow). These
are extraordinary and not routinely granted.

• Though an extraordinary writ provides appellate review,

technically, it is not an “appeal.” What is it? It is a separate
proceeding filed in the court of appeal.
• The writ is issued to an inferior court (for example, from
the court of appeal to the superior court).
• The party seeking the writ must demonstrate: (1) that she
will suffer irreparable harm if the writ is not issued (that is,
the lower court result is unusually harsh or unfair); (2) the
normal route of appeal from final judgment is inadequate;
and (3) she has a beneficial interest in the outcome of the
writ proceeding.
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• If a party makes this showing, she is not automatically
entitled to the extraordinary writ. The decision is always
NOTES
discretionary with the court.
• Example: The trial court’s denial of a motion for summa-
ry judgment is not a final judgment. The party that made
the motion may seek a writ of mandate from the court of
appeal. Granting is entirely in the discretion of the court
of appeal.
• Much more important example: In what situation is
seeking a writ of mandate the only way to get appellate
review? The denial of a motion to quash service of sum-
mons.

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NOTES 6 SIXTH BIG TOPIC: PRECLUSION

6.1 PRECLUSION
6.1.1 Basic Idea
The question is whether a judgment that has already been
entered (we’ll call it “Case 1”) precludes litigation of any
matters in another case (which we’ll call “Case 2”). We
already discussed preclusion in the federal material, and it’s
not much different in state practice. So, here we’ll just review
a few points.

• Remember that we apply the preclusion law of the system

that decided Case 1.

HYPO 6A
Say Case 1 is in a California court and judgment is entered.
Case 2 is in federal court (in any state). What law of claim
and issue preclusion does the federal judge in Case 2
use?

• Claim and issue preclusion are affirmative defenses, so a

defendant should raise them in his answer.
• How is the question often raised on the California bar
exam? By motion for summary judgment. This should
make sense because there would be no dispute on a
material issue of fact, and somebody may be entitled to
judgment because of the judgment in Case 1.

6.1.2 How California Differs from Federal Law

(If we don’t discuss it, assume that California law is the
same as federal law, which is discussed in the Federal Civil
Procedure lecture and in the written materials.)

a. Effect of Appeal
Suppose that the judgment in Case 1 has been appealed
or that the time for appealing has not yet expired. Is that
judgment entitled to claim or issue preclusion effect? Under
federal law, the answer would be “yes,” whereas the answer
would be “no” under California law.

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b. What Is “on the Merits” for Preclusion Purposes NOTES

The general rule is that any judgment is “on the merits”
unless it is based on jurisdiction, venue, or failure to join
indispensable parties. Under California law, it also would not
be “on the merits” if Case 1 was dismissed under statute of
limitations.

6.1.3 Definition of Claim (or Cause of Action) for

Claim Preclusion (Res Judicata)
Under federal law (the majority rule, by the way), a claim is
all rights to relief arising from a transaction or occurrence
(“T/O”). California, however, follows the “primary rights”
doctrine. Under the primary rights doctrine, there is a
separate cause of action for each right invaded. So, personal
injuries and property damage arising from the same T/O are
separate causes of action under California’s preclusion law.

HYPO 6B
In Case 1, Plaintiff sues Defendant for personal injuries
sustained in an auto collision. A valid final judgment on the
merits is entered. In Case 2, Plaintiff sues Defendant for
property damage from the same crash. Should the court
enter summary judgment for Defendant in Case 2 under
the doctrine of claim preclusion?
1. Were both cases brought by the same plaintiff against
the same defendant?
2. Did Case 1 end in valid final judgment on the merits?
3. Did the claimant in both cases assert the same claim or
cause of action?

HYPO 6C
Plaintiff and Defendant are parties to a contract under
which Defendant is required to make monthly payments.
When Plaintiff files Case 1, Defendant has failed to make
six such payments. Under federal and California law, are
there six separate claims here or only one claim or cause
of action?

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NOTES 7 CONFLICT OF LAWS

7.1 INTRODUCTION
It is unlikely that you will be asked a detailed conflicts
question in a California civil procedure question. In fact, the
following will not be covered in the lecture; read this material
at your leisure. That said, as you may recall from the federal
civil procedure lecture, under Erie, a federal court sitting in
diversity generally must apply the substantive law of the state
in which it sits, including the forum’s choice of law rules. That
fact is certainly “fair game” for a question centered on federal
civil procedure. But the obvious follow-up question is: What
are California’s choice of law rules?

7.2 CALIFORNIA’S CONFLICT OF LAWS RULES

California resolves conflict of laws issues using the following
approaches:

7.2.1 Tort Actions—Governmental Interest

Approach
The court first determines whether the laws of the two (or
more) states are identical. If they are not, the court evaluates
whether each state has an interest in the application of its law.
If each state has such an interest, a true conflict exists and
the court then analyzes the comparative impairment to each
state’s interest should the law of the other state be applied.

7.2.2 Contract Actions—Choice-of-Law Clauses

If the choice-of-law clause in a contract encompasses all
causes of action, the court must determine whether the clause
is enforceable by examining whether the chosen state’s law has
a substantial relationship to the parties or their transaction or
any other reasonable basis exists for the parties’ choice of law.
If the clause is enforceable, the court then assesses whether
the chosen state’s law conflicts with a fundamental California
policy. If such a conflict exists, the court must decide whether
California has a materially greater interest than the chosen state
in the determination of the specific issue. If the contract does
not contain a choice-of-law clause, or if it is unenforceable, the
governmental interest approach generally applies.
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8 CONCLUSION NOTES

8.1 TOPICS FOR FOCUS

For the essay exam, with limited time, what should I focus on?
Through the years, the following areas have been important:

• Preclusion;
• Defendant’s responses;
• Trial and motion;
• Personal jurisdiction;
• Scope and enforcement of discovery;
• Venue and transfer;
• Federal subject matter jurisdiction; and
• Service of process.

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