CIV LIT PARA 97(a) FINAL EXAM STUDY GUIDE
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Negligence
Fraud
Para
Paralegal
o Holds himself out as paralegal
o Is qualified by education, experience or training
o Performs substantive legal work
o Under supervision of an attorney
 CE req’s
 Every two years:
o 4 hours ethics
o 4 hours general or specific legal education
civil litigation:
o lawsuit between individuals or entities
o as opposed to criminal prosecution
action
o the lawsuit
allegation
o statements asserted as truth
Alternative Dispute Resolution
o dispute resolution process short or trial, to expedite resolution
 Arbitration
 ADR process:
o Each party presents its case to a neutral arbitrator
o There is a discovery process
o Is more formal than mediation
o Can be binding or non-binding
 Meditation
 ADR process:
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o Neutral mediator facilitates communication
between parties to achieve mutually acceptable
settlement
o Less formal than Arbitration
 Pleading:
o A formal document in which a party to a lawsuit sets forth or
responds to allegations, claims, denials, or defenses.
o Pleading Paper
 28 lined paper used for court correspondences
o Body
 The meat of the pleading
o Caption
 The attorney’s personal information;
 Name of party on whose behalf the document is prepared;
 Name of Court where the action is pending;
 Titles of action;
 Case number;
 Title of document
o Prayer for relief
 Last part of pleading; asks court to grant relief in its favor
 “WHEREFORE”…
 Cause of action
o Legal theory on which the case is brought
 Complaint
o Filed by plaintiff
o Stated allegations, against whom, and prayer for relief
 Venue:
o The place where the trial is held: do not confuse with JX
 Courts:
o State: trial, court of appeal (district); supreme
o Fed: trial (district); court of appeal (circuit); supreme
o Trial courts have ‘original jurisdiction’ – where the case originates
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o Appellate courts do not; they only hear cases, and issues, that come
from lower courts
 Federal courts in CA
o Article III: Judicial power in one Supreme court with the authority to
create inferior courts
o US district courts are the trial courts
 CA has Four federal judicial districts
 Hears fed question and diversity cases
o District courts of appeal = circuit courts
 13 throughout US
 Ninth Circuit = CA, OR, WA, NV, ID, AZ, Alaska, Hawaii, Guam,
and Northern Marianna Islands
o Federal JX
 Over questions of federal law
 The US as a party
 Complete diversity and $75k in dispute
 US Supreme court
o Reviews Circuit court decisions and State Supreme Court decisions
involving Federal questions
o Certiorari
o FRCP
 CA Courts
o Three levels: Superior; courts of appeal; supreme
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o Superior Courts
 Two types of trial courts and one appellate court
 Small claims: up to $10,000 for individuals; 5K for Corps; 7.5K
for automobile cases
 Limited JX
 Unlimited JX
 Superior court appellate Department
 Appeals from Limited JX superior court
o Courts of Appeal
 Review decisions of trial courts
 CA has six districts for courts of appeal
o Supreme court
 Power to depublish
o Administrative courts
 i.e. Unemployment insurance court
 some allow non-lawyers to represent clients
CIV LIT 97a LBN Ch 1
These notes are merely supplemental: You are expected to know the material; at
the review sessions for the exams, I will give you areas for focus, but you must
understand the nuts and bolts.
 Summons:
o Explained at 1.2.6
o Remember: the action is commenced with the filing of the complaint
with the court: the complaint sets out the allegations against the ∆
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o The summons is not a part of the complaint is not a pleading
 The summons is: an official order from the court requiring the
∆ to respond to the complaint.
 Service:
o Summons must be served on ∆
 Any competent adult, not a party to the action
 In CA
 Personal delivery
 Substituted delivery
o Left with specific individuals at authorized
locations; follow with mailing in CA; not required
in Fed Court
 By mail
 By publication
o Return of service
 Completed by party who served the summons and complaint
 Filled out after service and is the proof of service, supported by
affidavit filed with court
o Summons directs ∆ to serve an answer within a deadline
 Fed
 21 days
 CA: 30 days from date of service of process to file an
answer
 Failure = default
o Who may serve: any person, not a party to the action, who is at least
18 y/o
 Filing Complaint and Issuing Summons
o Clerk “files” complaint: stamps w/ date and case number
o Summons is “issued”: Clerk signs, dates, stamps
 But: you must still file Proof of Service of Summons within 60
days, or face penalties
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 This is done after you serve the defendant with the
Summons and Complaint
To ∆ in some cases:
o Personal injury: Statement of Damages
 Not filed with court; sent to Defendant with summons and
complaint – however, not mandatory that it be sent at that
time
o Limited civil: Case Questionnaire
 A way to promote settlement before trial
Proof of service:
o After service, fill out POS, and file an original and a copy with the
court
Dates to Calendar:
o Date of service: when the summons was delivered to ∆; or ten days
after mailing; = receipt date
o 30 days after receipt date, ∆’s response is due; = default date
o 10 days after default date; last day to file a request for entry of
default
For service by Mail
o Additional form:
 Notice and Acknowledgment of Receipt
 Top half: Notice: tells ∆ to respond, or have to pay for
additional service
 Bottom half: “Acknowledgment of Receipt”
 Include SASE; two copies of Notice and Acknowledgment; one
copy of summons; one copy of complaint; one copy of any
other docs
o Date to calendar:
 30 days after sending: check for response
 If ∆ did has not sent back the Notice and
Acknowledgment, you must continue to attempt service
by another means
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o If serving Outside California by mail, used certified mail
 Service by publication
o By court order
o Move the court for order demonstrating that service cannot “with
reasonable diligence” be made in any other manner
o Fill out an “Application for Publication”
o Fill out an “Order for Publication”
 This will be signed by the judge;
 To make life easy, you file this with the motion requesting the
order
o To the newspaper:
 One copy of the signed order and one copy of the summons
 A SASE, requesting an “Affidavit of Publication”
 Paper will publish for four consecutive weeks, then send you
the “Affidavit” back
o Dates to Calendar
 The date the ∆ was ‘deemed served’
 The notice period starts on first day of publication and
ends on 28th day;
 End of period ∆ is ‘deemed served’
 30 days from ‘deemed served’ date for ∆’s response
 10 days after that is last day to enter request for entry of
default
o If you find the ∆’s address during notice period:
 You must mail the notice, and file a declaration that it was
mailed
 Extending time for service:
o Ex parte application to court, before time has expired, with
declaration
JURISDICTION
7
Jurisdiction is divided into two branches:
1: Subject matter jurisdiction:
Refers to the court’s power over a particular type of case
2: Personal Jurisdiction:
The ability of a court that has subject matter jurisdiction to exercise power
over a particular defendant or item of property
Limitations on Personal Jurisdiction:
 Limitations arise from two sources:
o State statutes and the US Constitution
o An exercise of Personal JX cannot exceed either source
 Statutory Limitations
o States have to power to decide over whom the courts may exercise
JX
o Start with state statutes:
 No statute = no JX
 If a statute exists granting JX, then it is probably valid, but:
 then look to the US Constitution: statute cannot exceed US
Const.
o Constitutional Limitations
 Due process clause places two restrictions on the exercise of
PJX
 ∆ must have sufficient contacts with the forum state
such that JX would be fair and reasonable;
 ∆ must be given appropriate notice and an opportunity
to be heard
 Federal JX
 Unless a rule states otherwise, each Fed court must
analyze JX as if it were a court of the state in which it is
located
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THREE TYPES OF PERSONAL JX
 In personam JX
o In presonam JX exists when the forum has the power over the person
of a particular defendant.
 What about π JX?
o The court may render $ judgment against the ∆, or order that ∆
perform or refrain from performing some act(s)
o Full faith and Credit
 Judgment can be enforced in any state of the US, and against
property held in any State
 In Rem JX
o The court has the power to adjudicate the rights of all persons in the
world with respect to a particular item of property
o Property in question must be within the physical borders of the state
o Applies to:
 Condemnation (eminent domain cases)
 Forfeiture of property to the state (used for criminal purposes)
 Settlement of decedent’s estate
 Quasi in Rem JX
o When court has the power to determine whether particular
individuals own specific property within the court’s control
o However, it does not permit the court to determine the rights of all
persons in the world with respect to the property
 ∆ is not bound personally
 Cannot be enforced against any other property owned by ∆
STATUTORY LIMITATIONS ON IN PERSONAM JX
 State statutes grant JX in the following circumstances:
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1. Where the ∆ is present in the forum state and is personally served
with process;
2. Where the ∆ is domiciled in the forum state
3. Where the ∆ consents to JX
4. Where the ∆ has committed acts that bring him within the forum
state’s long arm statutes
 Physical presence
 If served with process while within borders of the state, no
matter how fleetingly
 Need not be related to COA
 Exceptions to traditional rule
 Fraud or Force
 Party or witness immunity
 Domicile
 Is where a person makes her home:
 Presence (even for a moment); plus,
 Intention to make that place her home
 Consent
 Express consent
 By K
 By appointment of agent
 Implied consent
 By engaging in in-state activity, i.e. driving within a state
 Voluntary Appearance
 By contesting a case without challenging JX first
 Hence: the Special Appearance
LONG ARM STATUTES
 In personam JX over those non-residents who perform or cause to be
performed certain acts within the state. Served in or outside forum.
1. Most states limit reach by statute
2. CA has an Unlimited Long Arm Statute
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 It is limited only by the federal constitution
 Constitutional limitations on in personam Long Arm JX
1. Sufficient contacts with the forum: contact and fairness
 Contact:
 International Shoe requires that ∆ have such minimum
contacts that JX would be fair and reasonable:
 Two factors: Purposeful Availment and Foreseeability
 Purposeful Availment:
 Contacts cannot be accidental
 ∆ purposefully availed herself of the
privilege of conducting activities
within the forum state, invoking the
benefits and protections of its laws
 Stream of commerce cases
o Difficult; however: purposeful
availment and foreseeability
are the hallmarks
 Foreseeability
 ∆ Must know, or reasonably
anticipate that her activities in the
forum render it foreseeable that she
may be HALED into court there
2. Fairness
 Cannot offend “traditional notions of fair play and substantial
justice”
 Relatedness of Claim to Contact
 The closer the relation, the more likely JX is fair and
reasonable
 Systematic and continuous activity in the forum state
 If established, court could find this activity sufficient for
JX over any COA, not just those related to the contact
o This is general in personam JX
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 If less than systematic and continuous, then only those
related to the activity give rise to PJX
o This is specific JX
 Diversity of citizenship JX
1. District courts shall have original JX for civil actions over 75K in
controversy; and
2. Citizens of different states
 Must have complete diversity: Ever π must be of diverse
citizenship of every ∆
 For humans: citizenship is same as domicile
 Child = that of parents
 Class actions
 Decided by the named memebers
 For corporations:
 Deemed a citizen of any (every) state of incorporation;
and
 State where it has its principal place of business
SUBJECT MATTER JURISDICTION AND VENUE
SMJX: The power of a court to adjudicate a matter before it; not to be confused
with: Venue: relates to the proper district in which to bring the action.
SMJX is a question of power or authority; Venue is a question of convenience
SMJX cannot be conferred by agreement; Venue can
VENUE:
 Fed:
o Venue is proper in:
 A judicial district in which any defendant resides, if all
defendants reside in the same state; or
 A judicial district in which the events or omissions occurred.
 Residence:
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o Individuals
 Residence = domicile
o Corporations
 In any judicial district in which it is subject to personal
jurisdiction
 Transfer:
o Where original venue is proper:
 Transfer to another district where the action “might have been
brought”
 Convenience of parties/witnesses
 Forum selection clause in contract;
 Is one factor, along with: convenience and interests of
justice
o Where original venue was improper:
 Where venue was improper and the only option is to dismiss
 Transfer is better than dismissal (usually)
 Transferee court must have PJX and SMJX
 Standard: the interests of justice
 Transfer is change of venue within system; Removal is from state to Federal
Court; Remand is from higher to lower court.
Venue in California
In California, venue refers to the county in which an action may be tried.
Improper venue may be waived if no timely objection is made.
 Local actions
o The county in which the land, or some portion of it, is located;
 Transitory actions
o Action that can be brought in any venue where the ∆ can be
personally served with process
o In any county in which any ∆ resides at commencement of action
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o If no ∆ resides in CA, venue is proper in any county
o Contract actions
 In the county where the obligation is to be performed; or
 Where the contract was entered into
o Personal injury/wrongful death
 Venue also proper in county where injury occurred
 Against corps, associations, and partnerships
o Corp:
 County in which K is made or to be performed; or in which
breach occurs
 County In which obligation or liability arises
 County where corp has its principal place of business
o Assoc’s and P’ships
 Entity’s principal place of business, if on file with sec of state;
or,
 Where a member/partner resides
 Transfer of venue
o ∆ only can move for transfer, if venue is improper
o If venue is proper, court may change venue on motion or sua sponte,
if:
 Reason to believe impartial trial cannot be done in original
county
 Convenience of witness and ends of justice would be
promoted;
 There is no judge of the court qualified to act
CIV LIT PARA 97(A) CH 3 GREEN
 Primary and Secondary sources of law
o Primary:
 State and federal constitutions;
 State, federal, and local statutes;
 Case law, state and federal
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o Secondary
 The restatements (Restatement of Contracts Second)
 Models for states to use in crafting their own laws, but
referred to for clarity and support
 Legal encyclopedias
 Dictionaries
 Treatises (formal essays on subjects)
 Law review articles
 Legal journals
 Hierarchy of Authority:
o Constitutions
 Fed supremacy clause
o Statutory law
 Fed over state; state over local
o Administrative law
 Administrative agencies with power of rule and regulation;
some also have investigative and adjudicative power.
 EEOC
o Common law
 Explain
 Here: case law
 Precedent and stare decisis
o Conflict of laws:
 Judicial review
 The law is what the SC says the law is
 Concurrent power
 In areas where both the state and the fed government
have authority; when the conflict is real, the fed law
prevails.
 Remedies
o Legal
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o Equitable
 Substantive law
o The laws themselves: what conduct is proscribed; what are the
elements of a prima facie case
o Think: the substance of the law
 Procedural law:
o How the laws are carried out;
o By what procedure is a person brought to trial in criminal law;
o What processes must be followed in a civil trial
o Think: the process by which the substantive law is put into practice
o Without procedure, there are no rights – it is that important
 Criminal Law v Civil Law
o Criminal law defines the proscribed behavior and establishes
punishment: punishment sets it apart
o Civil Law
 Protects the rights and obligations of private persons (natural)
and business entities
 Does not include punishment
 But, punitive damages fall under civil law
 To clarify your green book:
 p. 6 lists the code sections as though they are
purely/only applicable in a civil law context:
 e.g. Health and Safety, vehicle…
CIV LIT PARA 97(A) CH 4 GREEN
 Pre litigation analysis: First Contact Through Filing
o Does the case have merit
 It is an ethical violation to take on a case that lacks merit; but…
o If so, then:
 What are the potential claims
 What relief
 To client: What is your best case scenario outcome
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o What is acceptable
o What is unacceptable
 Who is the proper π
 Who to name as ∆’s
 In what court
o Before complaint, facts are checked and allegations investigated
 Do not assume the client is telling the truth
 Complaint and summons
 ∆’s response
o Default
o Answer
 Or special appearance to challenge JX
o Demurrer/motion to strike
o If alleging affirmative defenses, must do so in Answer, or they are
waived
 Affirmative Defenses:
 New matter, which, assuming the complaint to be true,
constitutes a defense to it;
o True = the facts, not the legal conclusion;
 e.g. : Yes, I hit the guy; however, it is not
battery because I stuck him in self defense
o others:
 accord and satisfaction, assumption of risk,
duress;
 insanity, coercion
o Demurrer or MTS
 General Demurrer
 Pleading fails to state facts sufficient to constitute a
cause of action;
 Court lacks SMJX
 Special Demurrer
 Lack of legal capacity;
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 Defect or misjoinder of parties;
 Uncertain pleading (same as Fed motion for more
definitive pleading)
 Motion to strike
 As to some portion of complaint or answer
 Cross-Complaint
Court’s response
o Court can grant or deny demurrer; with or without prejudice
Amended pleadings
o Frequently done, both voluntarily or when court grants demurrer
w/out prejudice
Discovery
o Pretrial devices that can be used by one party to obtain facts from
the other party to prepare for trial
 Depositions
 Interrogatories (Rogs)
 Requests for production (RFP’s); docs and things
 Requests for admission
 Physical and mental exams
 Requests to enter property
Motions
o A formal application made to the court to obtain a rule or order
directing some act be done in favor of the applicant
o Law and Motion calendaring
 Specific dates to clear motions and move the litigation forward
o Motions in limine
 At beginning of trial; protective orders against prejudicial
evidence or statements
Post-trial motions
o Attorney’s fees
o New trial
o Reduce judgment
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 Appeal
o Losing party claims errors of procedure or application
 Enforcement of Judgment
o When losing party fails to pay/perform
o Liens, levy’s, contempt
CIV LIT PARA 97(a) Ch 5 GREEN (most)
 Confidentiality
o In CA: part of oath
o Protects all information from any disclosure related to
representation, regardless of where or when derived
o Differs from A/C privilege: A/C priv applies only to communications
made during course of relationship and only covers formal testimony
o Exceptions to Confidentiality:
 Compelled by law or court order;
 To collect attorney’s fees
 To defend against IAC claim
 Allows, but does not require:
 When necessary to prevent a criminal act that will cause
death or substantial bodily injury
 A/C privilege
o Client is holder
 A person, or entity, seeking legal services
 Extends to representatives of clients
o Attorney
 One reasonably believed by client to be so
 Extends to agents of
o Corporate A/C privilege
 Old rule: control group
 Recent: if information divulged was gained during the course
of corporate duties
o Examination by doctor
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 If examined at attorney’s request, A/C priv attaches; not
physician patient
o Duration
 Indefinite
 Outlasts representation and life
o Non-applicability
 Future wrongdoing
 Dispute between attorney and client
 Conflicts of interest
o PL’s bring conflicts from their past
o Concurrent conflicts
 Representation of one client is directly adverse to the interests
of another; or,
 There is a significant risk that the representation of a client will
be materially limited by a lawyer’s personal interests, or those
of another client; former client; or third person
 Consent
 Clients can consent to waive conflict;
 Written, informed consent; court approval if challenged
o Imputed conflicts
 If one lawyer in a firm is conflicted, that conflict is imputed to
all others in the firm
 Screening
 If conflicted lawyer is timely screened;
 Does not share in fee;
 Potentially conflicted former clients are notified;
o Actual confidential information
 If gleaned from representation, you are conflicted
o Specific Conflicts
 Financial interest adverse to client
 Unless:
o Fair and reasonable;
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o Fully disclosed with opportunity to seek
independent counsel;
o Written consent
 Improper use of information
 Cannot use
 Designation oneself as beneficiary
 Unless related to done
 Substantial gift when preparing instrument
 Assumption of undue influence
 Media Rights
 CA does not follow model: if client waives and court
accepts
 Financial assistance
 CA ban is very broad: no financial assistance to clients,
except court costs up front
 Proprietary interest in outcome of case
 Cannot have, but can take case on contingency fee
 No file liens in CA
 Sex with client:
 CA is less strict than model rules
o Can’t demand it;
o No coercion or undue influence;
o Can’t let it interfere with competent
representation
o Former clients
 Cannot accept representation that is materially adverse to a
former client’s interests; and
 Cannot if lawyer gleaned material information from adverse
client
o Prospective clients
 Ban extends to prospective clients regarding any and all
received information
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 Extends to initial consultation
 Muddying the waters
 Standing
o A person must have a concrete stake in the outcome of a case
o Components
 Injury in fact;
 Causation;
 Redressability
 Decision in litigant’s favor must be capable of
eliminating grievance
o Exceptions
 Guardian ad litem
 Class actions – sort of
 Child support: county can sue on behalf of parent

 Capacity
o Adult and Competent
o Emancipated minors
o Fugitives lack capacity
 Considering COA’s
o What elements much be met;
o What evidence is required for each element
o How to obtain that evidence
o Sources of information
 The client
 Third parties
 First-hand witnesses
 Experts
 Opposing party
o Book mentions, but be sure to check with client
first;
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o Once opposing party has counsel, cannot contact
party directly, at all
 Docs and things
o When to sue
 Learn SOL’s : Ch 5, p 11
Boschetto v. Hansing, (2008) 539 F. 3d. 1011
1015
 Discovery: π wanted more; court declined as request was
insufficiently supported
 De novo review
 ∆’s filed motion to dismiss: π bears burden of production
 California’s long-arm statute = federal standards (coextensive with)
 Minimum contacts; fair play and substantial justice
 COA’s
o Violation of Consumer Protection Act
o Breach of K
o Misrepresentation
o Fraud
1016
 General and specific JX
o Here only specific
 RULE:
o 3 part test
1. Purposefully direct, consummate with forum; or
 Perform some act by which he purposefully avails,
invoking benefits and protections
2. Claim must relate to forum-related activities; and
3. JX must comport with fair play and substantial justice
(reasonable)
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o When π establishes one and two, ∆ must make showing that JX
is not reasonable
 Purposeful direction/Purposeful availment
1017
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Qualitative Analysis
o We are guided by the Supreme Court… (precedent)
Analysis:
o Lone transaction does not establish P.A.
o No ongoing obligations
 One-shot affair
1018
 Sliding scale analysis of interactive website
 Why is Cybersell inapplicable?
o b/c we are not concerned with JX over ebay
 π does not allege that ∆’s are regular users of ebay
o should π have inquired about the business website? (yes)
o jurisdictional significance if site maintains ongoing contact with
forum state
1019
 Distinction regular users of ebay (systematic)
 One time K; no substantial connection
 Π’s ease does not determine
o But, ebay does not create a moat
 Analysis:
o Facts of this case – one time transaction
o Dispositive…
1020
 Rule: standard of review
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o Abuse of discretion
o Actual and substantial prejudice to litigant
 Does the Boucher website conduct sales? Would that matter?
 Could π have drafted a better complaint?
o What should he have included?
 (that ∆’s did regular business on ebay)
Concurrence
 Individually targeting residents
 CA” Long –arm statute extends to limits of DP
1021
 Random, fortuitous, attenuated contacts
 Substantial connection
 Purposefully directs (effects test)
1. Intentional act;
2. Expressly aimed;
3. Causes harm that he knows is likely to be suffered
1022
 ∆ had no control over highest bidder’s location
 ∆ required buyer to get the car
 Foreseeable participation by Californian not enough
CIV LIT 97a LBN Ch 2
THIS CHAPTER HAS GREAT INFO ON CALENDARING
Vocab:
 Know:
o Attorney of record
 Currently representing a given party
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 Creates duties and binds attorney to rules regarding ending
representation
o Calendar day/court day
o Electronic
 Filer
 Filing electronically directly with the court
o Directly or through agent/service
 Notification
o Notification that a doc is served; provides
hyperlink to doc
 Electronic service:
o must be “allowed”
o Service by electronic transmission to an electronic
service address
o Two day extension: each way
 Watch out: courts list midnight deadlines,
but the two day deadlines is a 5:00 pm close
of business deadline.
o Supplemental e-service is being required by some
courts
o Email the service, or a hyperlink to the service
o For proof of service on efile
 May be made by any manner, plus:
 The electronic address used
 Date sent to e address
 Use electronic address on the POS
 Statement that service was electronic
 Proof of service in practice
o Most lawyers and firms have a template; but
o There is one general and three specific POS forms at the Judicial
Counsel site
 READ 2.6 – 2.9
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 Calendaring steps: program: deadlines.com
o Identify the triggering event
o Identify what deadlines are triggered
o Identify what rules must be met: CRC, California Civil Procedure, local
court rules
 Identify the events that which define the time period in
question
 If you are filing a motion with the court, calendar notice
date/deadline; response deadline;
o You will have liquid dates: you will need to
respond to responses, but you will not know the
exact deadlines until you have been noticed
 For a hearing date: count backward from the hearing
date and calendar all events
o Exclude the hearing date
 Specifics
o Deadline:
 To serve ∆ and file POS: CRC 3.110
 To serve response to rogs: CCP §2030.260
 To move to compel further responses to rogs: CCP §2030.300
 To serve notice of motion, opposition, and responses to
motions: CCP §1005(b) AND CCP §12c
 Remember:
o responses do not need to be received by the service deadline; they
need to be served by that deadline;
o remember Cesar Chavez!
o Limited service day = open court day
o Weekends are treated as holidays: you move the date to the next
closest non-holiday; remember whether you are counting forward or
backward; and court days and calendar days
o Receipt date – the other party: is the date of service PLUS the
additional days dictated by the form of service
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 The triggering date becomes the receipt date, regardless of
when the party actually received it
 When in doubt, always use the earlier date.
o Counting backward
 With hearing dates: if you have 16 days to serve before a
hearing; you must count 16 days – subtracted from the hearing
date, and subtract the additional days for the form of notice to
reach recipient;
 THE CHARTS ON 2-28 AND 2-31 ARE VERY HELPFUL
CIV LIT 97a LBN CH 3
WALKING THROUGH DEFAULT
 Default: failure to respond to a complaint (or appear at a hearing)
 Default Judgment: decision regarding rights of parties after defendant
defaults
 Due date: date by which a doc must be filed and served
 Entry of default: notation by the clerk of the court regarding ∆’s failure to
respond/appear
 1st step:
o Request clerk to enter the ∆’s default in the court file
 Mandatory Form: “Request for Entry of Default”
 Blocks ∆ from responding, without successful motion to set
aside default
 Is a vital part of calendaring and completing
 If ∆ defaults, π is expected to file, and is exposed to
sanctions for failure to do so
 2nd step:
o Obtain default judgment
o Default Judgment entered by Clerk:
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



o Clerk can enter Default Judgment (CCP § 585(a)) in cases that:
 Case arises from contract; or
 Case has a judgment; and
 Damages are in a fixed, determinable amount; and
 The summons was not served by publication
o Court must enter Default Judgment (CCP § 585(b)) when:
 Service was by publication; or
 Amount is to be determined
Before filing, contact local court for reject list/ check sheet
Form: “Request for Entry of Default” CIV – 100 pg’s 3-5 and 3-6 LBN
o Allows for steps one and two to be done simultaneously or not
o NOTE: default judgments are not entered against active military ∆’s;
always check, and check the box (section 8)
Service of request for Entry of Default
o Once signed:
 Mail a copy to each defaulting ∆/ ∆’s attorney
After a copy of the Request for Entry of Default” has been served (mailed),
original is filed with court clerk
o This is now added to the court file for your case;
o Must already contain:
 Proof of service of summons
 Statement of damages for personal injury
 With its own POS
Obtaining Default Judgment
o Must prove entitlement to the damages
o Submit written declaration: court may require a “prove-up” hearing
o Submit with Proposed Judgment
 Proposed Judgment (Jud – 100):
 For simple cases
 Pleading paper pg 9-11 in LBN
o Submitting
 C.R.C. 3.1800
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 Brief summary of case (for Court Judgments)
 Declarations and docs
o i.e. the contract
 Interest Computations (if seeking)
 Memorandum of Costs and Disbursements (part of form,
and not as difficult as it sounds)
 Declaration on non-military status
 A Dismissal
o “Request for Dismissal” form
 For all parties against whom judgment is
not sought
 Exhibits
o Check with court, may require
 Request for attorney’s fees
o Court may have schedule of fees applicable to
your case
 Make copies of everything
File with the court
CIV LIT 97a LBN CH 4
THE DEFENDANT APPEARS
 Answer
o 30 day limit may be extended, by:
o One 15 day by stipulation without court involvement
o After that, by court
o Calendaring for Defendant
 Date complaint was filed
 Date of service and 30 days after
 All appearance dates, including:
 Case Management Conference
 Final status conference
 Trial date
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 Demurrer
o Arguing that Complaint is defective
o If demurrer is denied, ∆ has ten days to file answer
 Time begins as of date of service of court’s ruling
 Motion to dismiss
o Standing, JX,
 Motion to quash
o Arguing that service or process of service was defective
 Motion to strike
o Specific aspects of complaint
 Cross complaint
o Filed by defendant: he becomes cross-complainant
 Complex or Not Complex
o If π has filed the case as complex, the discovery rules are changed
and allow for more time consuming discovery;
o So, if you do not agree that case is complex, there is a form:
 Using Civil Case Cover Sheet, CM-010, check the box near the
top that says: Complex Case Designation, and check: COUNTER
 Is now a “Counter Case Cover Sheet”
 The caption
o Matches the complaint exactly, except for the title – the part below
the case #
o Title: DEFENDANT’S (S’) ANSWER TO COMPLAINT FOR ____
o VERIFIED or not: some attorneys state in the Caption
 If the complaint if “verified” the answer must be also
 You are swearing to the accuracy of statements; ergo, you
must state if you do not know
 If verified, no general denials
o LBN has Dept and Judge: you will not always know this at this point
 The Body
o DEFENDANT, TERRY ELLIS, ANSWERS PLAINTIFF’S COMPLAINT AS
FOLLOWS:
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o Respond to each COA, staring your numbered paragraphs with the
first response
o Any material allegations not denied are deemed admitted
o AFFIRMATIVE DEFENSES
 Follow responses to COA’s with consecutive numbering
 Filing and serving answer
o Same procedure as filing complaint
o $ for Defendant’s appearance fees: can vary; court clerk will tell you
 Counterclaims
o Compulsory and permissive
o Compulsory
 Same transaction or occurrence as π’s; must be pleaded as a
counterclaim or be barred
o Permissive
 Against same π, but from different transaction or occurrence
o In CA: The Cross Complaint
 Do not confuse with Cross-Claim: that is against a fellow
defendant
o Filed with the answer to the complaint
 Unless you are cross-suing a non-party; then you have until
trial date is set
o “Cross Complainants” and “Cross Defendants”
o Cross Complainants allege that Plaintiff, Cross Defendant Benjamin Laney, is in
material Breach of Contract pursuant to the terms of a written agreement between
Cross Complainant McBay International Inc., and Cross Defendant Laney
o Format Note:
 The double box party names
o Filing and service
 If filing against a party: You are not bringing anyone new into
the case
 Same process as filing a complaint, and it is filed with
the answer
 If filing against a non-party
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 Summons must be prepared, issued, and served to bring
cross-defendant into action
 Preparing the package
o Make copies of the summons and cross complaint;
o Good practice to attach a copy of the complaint
o File with court clerk
o If against a party, court will serve
o If against a non-party
 Must serve as if new complaint and POS must be filed with the
court;
 Must also serve
 a copy of the complaint;
 a copy of any answer;
 Responding to cross complaint
o Cross defendant has 30 days to respond
o Is exactly the same as responding to a complaint
CIV LIT 97(a) PRODUCTS LIABILITY LECTURE
 Liability of a supplier of a defective product to someone injured by the
product
 Five base theories
o Intent
o Negligence
o Strict liability
o Implied warranties
 Merchantability
 Fitness for a particular purpose
o Representation theories
 Express warranty
 Misrepresentation
 Common elements
o Π must show:
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 A defect; and,
 Existence of the defect when the product left ∆’s control
 Types of defects
o Manufacturing
 Emerges different and more dangerous than the products
made properly
o Design
 When all products of a line are the same, but have dangerous
propensities
o Inadequate warnings
 Failure to give adequate warnings as to the risk involved in
using a product that may not be apparent to users
 Drugs/medical devices
 Warnings given to ‘learned intermediaries’ usually
suffice
 Proving defect
o Manufacturing
 Product failed to perform as safely as an ordinary customer
would expect
 ∆ must anticipate reasonable misuse
 Test applies to defective food products
o Design
 ∆ could have made product safer, without serious impact to
the product’s price or utility
o Government safety standards
 Noncompliance with establishes that it is defective; but,
 Compliance with safety standards is evidence (and only
evidence), but not conclusive, that the product is not defective
o Scientifically unknowable risks
 ∆ not liable for damages not knowable at the time of
marketing
o Unavoidably unsafe products
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


 No liability if the danger is apparent and there is no safer way
to make the product
Existence of defect when product left ∆’s control
o Will be inferred from Normal channels of distribution
Liability based on intent
o If ∆ intended consequences or knew that they were substantially
certain to occur
o Privity is not required
Liability based on negligence
o Duty is owed to any foreseeable π
 Users; Consumers; bystanders
o Chain of supply liable
 Manufacturers; wholesalers; retailers
o Breach of duty
 Negligent conduct of ∆ leading to;
 The supplying of a defective product
 Proof of negligence
 Same as standard
 Π can invoke Res ipsa loquitor
 Wholesalers and retailers
 Duty satisfies with cursory inspection
o Causation
 Intermediary’s failure to discover does not supersede
manufacturer’s, unless;
 Unless intermediary’s exceeds foreseeable negligence
o Damage
 Physical or property must be shown
Strict liability in tort
o Why is it called this?
 To distinguish from product liability in warranty
 Warranty liability can be limited by disclaimer: as is, etc.
 Liability in tort alleviates privity and evidentiary burdens
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o Any merchant who sells a product in a defective condition
unreasonably dangerous to the user or consumer or to his property
o A strict duty owed by a commercial supplier or a product;
o Production or sale of a defective product;
o Causation
o Damages
o Duty
 ∆ has duty so provide safe products
o Π’s
 No privity required
 Much reach π w/ No substantial alterations
 Does not extend to services
o Any commercial supplier
 Does not extend to casual sellers
o Production or sale
 Dangerous beyond expectation of ordinary consumer
 Retailers may be held liable even with no opportunity to
inspect
o Comparative negligence applies
o Disclaimers are irrelevant
 Merchantability and Fitness/particular purpose
o Merchantability: applies to all goods sold
 Acceptable quality and generally fit for intended purpose
o Fitness/particular purpose
 When seller knows or has reason to know the particular
purpose for which the goods will be used; and
 Buyer is relying on seller’s superior knowledge
o Breach
 In either case, warranty is breached and ∆ is liable
 Proof of fault unnecessary
o Disclaimers
 Valid for property loss; not for personal injury
 Representation theories
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o Express warranty
 Affirmation of fact or promise that becomes part of the basis
of the bargain
 Privity not required as long as someone relied on the claim(s)
o Breach
 Fault need not be shown;
 Π only shows that product did not live up to warranty
o Disclaimer
 Could be valid, but would have to be consistent with warranty
o Misrepresentation of fact
 Fraud
CIV LIT 97a AMENDED PLEADINGS
 Amended pleadings
o Changing a pleading after it has been served or filed
o Amendments can and do occur at all stages of litigation
o CA: party may amend a complaint once as a matter of right Before an
answer or demurrer is filed
o After that, must obtain leave of the court by motion; liberally granted
 Relation back: that an act done at a later time is deemed to have occurred
at an earlier time
 refers to the date the complaint was originally filed for
purposes of SOL
 Amending to add new COA against already named defendant:
o Relation back applies if the new COA is based on the same general
set of facts
 Amending to add a new ∆
o If SOL has not run, then amendment is allowed to add new ∆
 No need to refer to relation back doctrine
o If SOL has run, then usually not allowed, unless:
 Relation back in cases of mistake in CA court:
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 Can to correct typos, but not to create new ∆’s
 Can, under equitable estoppel, π may be allowed to
allowed to correct a mistake in naming a closely related
entity for the true ∆
o California DOE amendments:
 Allowed: if:
 Timely filed and contains charging allegations against all
defendants, including the DOES;
 Π must be genuinely ignorant of the true names of the
DOE defendants;
 Π’s ignorance must be pleaded in the complaint;
 Given all three above, π has three years from original
filing to discover identities of DOE defendants and serve
them with the complaint
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