california bar exam outline - civil procedure

California Bar Exam Outline - Civil Procedure

This is an outline which I created as part of my preparations for the July 2000 California Bar Exam. I started with the outline of subjects covered on the MBE exam provided by the National Conference of Bar Examiners. To that outline I added the additional topics tested on the California Bar Exam. I then filled in the substantive information for those categories from the following sources:
  • PMBR lecture tapes (24 tapes covering torts, K, property, con law, crim law, and evidence).
  • BarBri "Early Bird" lectures covering K, evidence, crim law, crim pro, con law, civ pro, bus org, community property, and property.
  • PMBR Multistate Workbook Volume 1 Outlines (torts, K, property, crim law, crim pro, evidence, con law)
  • PMBR Multistate Workbook Volume 1 MBE answers
  • PMBR Multistate Flashcards
  • Strategies and Tactics for the MBE, by Emanuel
  • PMBR 6-day lecture and �Early-Bird� Workbook (MBE answers and Multistate Issue Graphs)
Once I started the BarBri lectures, I stopped using this outline, and instead studied from flashcards (made in part from this outline), and checklists. Therefore, this outline does not contain any substantive information from BarBri, and any additions or corrections that I would have made using the BarBri information. You should not rely on this outline as an authoritative primary source.

  1. Civil Procedure

  1. Personal jurisdiction

  1. Tells us if we can we sue D in this jurisdiction (state/fed).
  2. Power over D himself: In personam
General: Sue D for claim that arose anywhere in the world.

  1. Given by substantial and continuous ties with the forum, such as domicile.
Specific: Sue D for claim that arose in that forum.Statutory requirements
All states have statutes granting jurisdiction based on the constitutional requirements. Non-resident motorist acts: Driving a motor vehicle in a state appoints state officer as agent for service and you have consented to jurisdiction for motor vehicle wreck.  Long-arm statutes (two types)

  1. California: We have jurisdiction over everyone, if it would be constitutional.
  2. Laundry-list statute specifying when forum has jurisdiction. Language varies from state to state, and same language may be interpreted differently in different states.
Constitutional requirements satisfied by:

  1. Presence: Service of process in the forum upon D or his agent; D domiciled in state; or D consents to jurisdiction. (Penoyer) Jurisdiction exists if D has such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fairness and substantial justice. (Int�l Shoe)

  1. Half the court said that the minimum contacts test isn�t needed if presence exists. Other half said this test is still necessary, but likely satisfied.
  2. Contacts: D must purposefully avail himself of the benefits and protections of the forum (making money there) rendering it foreseeable that D may get sued in the forum.

  1. Not the unilateral action of a TP or p (World-Wide Volkswagon).
  2. Stream of commerce: D puts product into stream of commerce, and products indirectly end up in forum. Purposeful availment exists if D can reasonably anticipate that product will end up in forum (but the other half of the court said that intent or purpose to serve the forum must exist). (Asahi)
Relatedness between contact and p �s claim Convenience: Burden on D to show that the forum is so gravely inconvenient that he is at a severe disadvantage in the litigation (nearly impossible) (Burger King). Forum�s interest in allowing p to sue D .Power over D �s property in forum

  1. Types

  1. In rem: Case is about who owns the subject property.  Quasi in rem: Case is not about the property, but the tangible or intangible property is the only way to get jurisdiction (in personam fails)
Statute: Attachment statute saying that the court can attach property.  Constitutional: D must meet minimum contacts test (probably automatically satisfied in in rem cases, since the property is in the forum).Notice

  1. Service of process (Rule 4)

  1. Summons from the court, and copy of complaint.
  2. Served by any non-party who is at least 18yo.

  1. Personal service, anywhere in forum
  2. Substituted service: D �s usual residence, and serve someone of suitable age and discretion who resides there.
  3. Service on agent (the only way a corporation can be served)
  4. Any method allowed by the state where federal court sits OR where service is effective. Example: Registered mail.

  1. Service must be performed in the state where the federal court sits. Out-of-state service allowed only if the state of the federal court allows.

  1. Necessary parties (but not original D ) can be served anywhere in the state, or within 100 miles of the federal courthouse.
Constitutional requirements

  1. Notice must be reasonably calculated, given all the circumstances, to apprise D of the case.

  1. Satisfied by Rule 4, even if D doesn�t get personal notice of the case.
  2. Service by publication rarely qualifies, but may if there are circumstances which indicate that it would met the test.
Opportunity to be heard

  1. Due process clause requires that for a seizure of property prior to judgment (pre-judgment seizure), i.e. for breach of secured K:

  1. p must give affidavit prior to seizure as to why he can seize the property;
  2. Judge must issue an order;
  3. p may be required to post a bond; and
  4. D gets hearing on merits either before or after seizure.
Subject matter jurisdiction (SMJ)

  1. Determines which court is proper within the forum
  2. Federal courts have limited SMJ

  1. State courts can also hear these cases, except exclusive jurisdiction over:

  1. Patent infringement
  2. Federal antitrust
  3. ____

  1. Diversity of citizenship (1332)

  1. Opposing parties are citizens (not residents) of different states; and

  1. Complete diversity rule: No diversity if any p is a citizen of the same state as any D .
  2. Diversity is tested when case is filed, and is not destroyed if parties later change citizenship.
  3. Citizenship of a person is determined by state of domicile. Person can only have one domicile: Given at birth, changed by affirmative act of (1) presence in new state, with (2) subjective intent to make it your perminant home.
  4. Citizenship of corporation is determined by (1) state(s) of incorporation, and (2) the one state of principal place of business (PPB) given total activities (usually HQ � nerve center test, unless all activities are in another state � muscle center test).
  5. Unincorporated businesses is a citizen of every state in which its members are citizens.
  6. Citizenship of represented parties: Decedents, minors and incompetents are determined by citizenship of the party, not the representative. Class action is citizen of representative.

  1. Amount in controversy exceeds $75k

  1. Amount must exceed $75k, not including interest and costs.
  2. p �s claim governs amount in controversy, unless it is clear to a legal certainty that p cannot recover that much.
  3. What p ultimately recovers is irrelevant.
  4. Injunction: Requirement satisfied if damage to p is more than $75k or cost of remedy to D is more than $75k.
  5. Aggregation of separate claims: Separate claims are added to get over $75k if the parties are identical in each claim. No aggregation if parties are not identical. In joint claims, use total value.
Federal question (1331)

  1. Claim in complaint arises under federal law.
  2. Well-pleaded complaint rule: Claim itself must arise under federal law � without examining anything but the complaint. Satisfied if p is trying to enforce a federal right.
Supplemental jurisdiction (1367)

  1. Every claim asserted in the case requires SMJ, not just the original claim.
  2. If the secondary (counter- or cross-) claim can�t meet diversity or federal question, claim can be heard if it involves a common nucleus of operative fact (same transaction or occurrence) with the original claim, even if the claim is against a separate party.
  3. Exception: Doesn�t apply in diversity cases to claims by p �s.
State courts have general SMJ, unless federal courts have exclusive SMJ  Removal
Allows state court claim to be transferred to federal court. Only D can remove. All D �s must agree. Removal is to the federal district embracing the state court. Removal must occur within 30 days of service of summons and complaint if removal is proper at that time. Removal proper only if there is federal SMJ.

  1. Exceptions: No removal allowed of diversity case if any D is a citizen of the forum. No removal of diversity case more than 1 year after case was filed in state court.
Improper removal results in remand to state court.Venue

  1. N/A in removal case.
  2. Local action (case involving land, including trespass): Venue is where the land lies.
  3. All other cases are transitory, and venue is govered by 1391:

  1. Any district where all D �s reside (for corporation, that�s anywhere it is subject to personal jurisdiction. If all D �s reside in different districts of the same state, then venue can be wherever any D resides.
  2. Any district where a substantial part of the claim arose.

  1. Transfer

  1. Can only transfer to a court that is a proper venue and has PJ over D (unless D waives).
  2. If the original court was proper venue, the test is convenience to the parties and the interest of justice (judge has wide discretion).
  3. If the original court is improper venue, case can be transferred or dismissed.
Forum non convenience: Court with proper venue dismisses case because another court in another judicial system (thus transfer not possible) is far more convenient. Example: Moving a case to an international judicial system. Dismissal is usually conditional on D allowing the case to go forward in other court.Challenging forum selection

    1. Minority of states allow D to make a special appearance challenge personal jurisdiction, but nothing else, without waiving PJ.
    2. Rule 12: D must either file an answer (pleading) or motion within 20 days after service of process. Defense motions can be raised in answer or separate motion:

      1. Rule

    3. Covers

    4. Waived

    5. 12b1

    6. Lack of SMJ

    7. Never � can be raised on appeal

    8. 12b2

    9. Lack of PJ

    10. Must be put in first Rule 12 response

    11. 12b3

    12. Improper venue

    13. Must be put in first Rule 12 response

    14. 12b4

    15. Insufficient process (summons or complaint is defective)

    16. Must be put in first Rule 12 response

    17. 12b5

    18. Insufficient service of process

    19. Must be put in first Rule 12 response

    20. 12b6

    21. Failure to state a claim on the face of the complaint (demurer � even if p proved everything in the complaint, he would still loose).

    22. Can be raised anytime before trial ends � not on appeal.

    23. 12b7

    24. Indispensible party

    25. Can be raised anytime before trial ends � not on appeal.

    Erie Doctrine

    1. Only applies to diversity cases.
    2. Substantive law: State law is applied  Procedural law: Federal procedure applied.

    1. If FRCP rule which is on point directly clashes with state law, FRCP applies, unless unconstitutional (never, because Sup. Ct. writs FRCP).
    2. If there is no FRCP rule on point (true Erie question), the issue is a matter of substance and state law applies if:

    1. Outcome determinative: Applying federal law will determine the outcome (?)
    2. Balacing: The state interest is more important than the federal interest.
    3. Forum shopping: Applying federal law would cause litigants to flock to federal court.

    1. Complaint (8a)

    1. Statement of SMJ (why are we in federal court?)
    2. Short and plain statement of the claim (notice pleading)

    1. All you have to do is put the other side on notice and lay out the cause of action. You can be fairly conclusory.
    2. Exceptions which require pleading with specificity: Fraud, mistake, special damages.

    1. Demand for judgment
    Answer (8b)

    1. Respond to allegations of the complaint:

    1. Admit
    2. Deny (failure to deny is treated as an admission)
    3. Don�t know (effect of denial)

    1. Raise affirmative defenses (SOF, statute of limitations, res judicata, etc.)
    Amending pleadings (15)

    1. p has right to amend once before D serves answer
    2. D has right to amend once within 20 days of serving answer
    3. If no right to amend, seek leave of court to amend. Court "shall" freely give leave if justice requires.
    4. Variance: Evidence at trial does not match the pleading. Evidence admitted if other side doesn�t object. If other side objects, then the evidence is inadmissible, but party can move to amend pleading to get the evidence in.
    5. Amending after statute of limitations has run:

    1. To add new claim: ??
    2. To add a new party: ??

    1. Each new claim or claim against new party must have SMJ
    2. Claim joinder by p

    1. Any and all claims against D can be joined.

    1. Claim joinder by D

    1. Counterclaim (claim against opposing party)

    1. Compulsory: One that arises from the same transaction or occurrence as p �s claim must be joined, or else party will never be able to assert the claim. If the claim doesn�t have its own SMJ, supplemental jurisdiction will give it SMJ.  Permissive: Does not arise from same transaction or occurance. Does not have to be asserted, but may be.
    Cross-claim (claim against co-party)

    1. Must arise from same transaction or occurrence
    2. Permissive � not compulsory.
    Proper parties
    Co-p �s may (not must) sue a common D when claims arise from same transaction or occurrence, and raise at least one common question.Necessary & indispensable parties
    Is the absent party necessary?

    1. Needed to accord complete relief;
    2. Absent party�s interest would be harmed if not joined; or
    3. Absent party claims an interest which subjects D to threat of multiple liability.
    4. Joint tortfeasors are not necessary parties.
    Is joinder feasible?

    1. PJ must exist over absent party
    2. Joinder will not destroy diversity, in a diversity case.
    If joinder is not feasible, case can either proceed without absentee, or dismiss entire case (which makes the party indispensable). Factors:

    1. Existence of alternative forum
    2. �?
    Joining new party as a third party D by an existing D to because TPD owes D indemnity or contribution (i.e. joint tortfeasors). Also allows p to assert a claim against TPD as long as the claim arises from same occurrence or transaction. TPD can also claim against p .Intervention
    Non-party can intervene into an existing case, either as p or D , with a timely request. Intervention of right: TP�s interests may be harmed if she is not joined, and is not adequately represented now. Permissive interventon: TP�s claim or defense has at least one question in common with the case.Interpleader
    Case involves a thing, and the stakeholder-party has possession, and interpleads all claimants into the case.  Rule interpleader is just a diversity case, and all of those requirements apply.

    1. Stakeholder must be diverse from every claimant.
    Statutory Interpleader (1335)

    1. Differences between regular diversity case: All you need for diversity is one claimant diverse from another claimant, and an amount in controversity of at least $500. Nationwide service of process. Venue is the district where any claimant resides.
    Class action
    Representative sues on behalf of a group. All requirements must be satisfied:

    1. Numerosity: Too many p �s for practicable joinder.
    2. Commonality: Some question in common to the entire class.
    3. Typicality: Representative�s claim must be typical of the claims of the group
    4. Representative and lawyer must adequately represent the class
    Types of class actions

    1. 23b1

    1. No right of members to opt-out

    1. 23b2

    1. No right of members to opt-out

    1. 23b3

    1. Common questions predominate
    2. Class action is the superior method of resolving dispute
    3. Rep pays to give individual notice to all reasonably identifiable members.
    4. All members are bound except those who opt-out.
    In a diversity case, you look only to the rep�s citizenship � not all the members. Split as to amount in controversy: Some courts say every member must claim more than $75k, other courts say as long as rep�s claim is more than $75k, you�re set.Discovery

    1. Required disclosures: There are three times in the trial when certain evidence must be disclosed.
    2. Discovery devices (only against party unless otherwise noted)

    1. Deposition: Subpoena necessary for non-party.
    2. Interrogatories: Q�s in writing, answered in writing.
    3. Request to produce: Subpoena necessary for non-party
    4. Medical examination of party or someone in party�s control (child). Requires court order.
    5. Request for admission
    Anything relevant: Anything reasonably calculated to lead to admissible evidence. Excludes privileged matter Work product (material prepared in anticipation of litigation) is generally immune from discovery. Exception if requesting party shows substantial need, and that the material is not otherwise available. But mental impressions, conclusions, opinions, and legal theories are absolutely protected.Pretrial adjudication

    1. Summary judgment (Rule 56)

    1. Party entitled if there is no dispute, supported by the admissible evidence, on a material issue of fact, and party entitled to judgment as a matter of law (JMOL).
    2. Rarely granted in favor of party with burden at trial.
    3. Judge does not balance the evidence � merely looks to see if any evidence exists creating a dispute.

    1. Right to jury trial

    1. Jury decides disputes of fact
    2. Jury must be demanded in writing, otherwise waived.
    3. 7th Amendment preserves right of jury trial for actions at law (but not suits at equity). The right exists for any case in which a jury trial would have existed in 1791 under British common law.

    1. Right is determined issue-by-issue.
    2. If issue underlies law and equity, jury ok.
    3. Always try jury issues first.
    Selection of jury
    Each party has 3 peremptory strikes, and unlimited strikes for-cause.

    1. Peremptory strikes must be race and gender neutral.
    Motion for Judgment as a Matter Of Law (JMOL / Directed Verdict)

    1. Dismisses jury, and judge decides the case himself.
    2. Proper if reasonable people could not disagree on the results. Same as summary judgment, except at trial.
    3. Brought after other side has been heard (p can bring at close of all evidence, D can bring after p goes, and at close of all evidence).
    Renewed JMOL (formerly JNOV): Brought by looser after judgment has been entered. Same as JMOL, only later (jury reached a conclusion that reasonable people could not reach). Prerequisite: Must have moved for JMOL at close of all evidence, otherwise you waived Renewed JMOL.  Motion for new trial: Caused by some mistake at trial, such as jury misconduct.

    1. Complete
    2. Partial
    3. Conditional (where liability is clear but damages were shocking to the conscious).

    1. Remititure: p has choice between new trial and taking lower amount.
    2. Additure: Jury awarded p too little money, judge wants to do new trial, but tells D he�ll not do new trial if D pays more damages. Unconstitutional in federal court because of 7th Amendment.

    1. Final judgment rule: No appeal until court enters final judgment (at which point trial judge has nothing left to do on the merits of the case). Exceptions:

    1. Interlocutory appeals, if trial judge certifies it and appeals court agrees to take it.
    2. Injunctions
    3. Court of appeal has power to hear collateral orders:

    1. Important issue separable from merits;
    2. Order completely resolved that issue; and
    3. Effectively unreviewable if we wait for final judgment.

    1. Grant or denial of class certification, at the discretion of the court of appeals.
    Res judicata and collateral estoppel

    1. Two cases, and one case has already gone to judgment. Question is if the judgment in C1 precludes litigation of something in C2.

    1. In deciding whether C2 is precluded, court apples the res judicata and collateral estoppel rules of the jurisdiction of C1.

    1. Res judicata: Claim preclusion

    1. You only get to sue on a claim once, so seek all rights to relief in that one suit.
    2. Applies when:

    1. Both cases are brought by same p against same D ;
    2. Case one must have ended in a valid, final judgment on the merits (includes all judgments except those based on jurisdiction, venue, or indispensable parties); and
    3. Both cases must involve the same claim (all rights to relief arising from same transaction or occurrence). Note: Minority view look to see if cases arrive from different primary rights.

    1. Example: A sues B for persona injury arising from car accident. A then sues B for property damage from same car accident. Second case barred by res judicata.
    2. Merger / Bar:

    1. Merger: Claimant won first case.
    2. Bar: Claimant lost first case.
    Collateral estoppel
    Issue which was litigated in C1 is barred from relitigation in C2, and is simply adopted as something that has already been decided. Requirements:

    1. C1 must have ended in a valid final judgment on the merits (any judgment except on jurisdiction, venue, or indispensable parties);
    2. Same issue actually litigated and determined in C1;
    3. Issue was essential to the judgment in C1;
    4. Estoppel can only be asserted against one who was a party in C1 (or in privity with a party in C1); and
    5. Estoppel is being asserted by:

    1. Maj: Anyone (non-mutual [defensive | offensive] collateral estoppel)

    1. Defensive: Person asserting is D , and can do so, so long as p had full chance to litigate in C1
    2. Offensive: Person asserting is p . Most courts do not allow, but federal law does allow so long as it isn�t unfair. Factors of fairness (just factors � not requirements):

    1. D had full chance to litigate in C1;
    2. D could foresee multiple suits;
    3. p could not have easily joined into C1;
    4. There are no inconsistent judgments (i.e. in prior litigation, D was sometimes found negligent, sometimes not).

    1. Min: Party in C1

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