CIV LIT PARA 97(a) MIDTERM STUDY GUIDE 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 1
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CIV LIT PARA 97(a) MIDTERM STUDY GUIDE
Negligence Fraud Para Paralegal
o Holds himself out as paralegalo Is qualified by education, experience or trainingo Performs substantive legal worko Under supervision of an attorney
CE req’s Every two years:
o 4 hours ethicso 4 hours general or specific legal education
civil litigation:o lawsuit between individuals or entitieso as opposed to criminal prosecution
actiono the lawsuit
allegationo statements asserted as truth
Alternative Dispute Resolutiono dispute resolution process short or trial, to expedite resolution
Arbitration ADR process:
o Each party presents its case to a neutral arbitratoro There is a discovery processo Is more formal than mediationo 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 actiono Legal theory on which the case is brought
Complainto Filed by plaintiffo 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); supremeo Fed: trial (district); court of appeal (circuit); supremeo 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
Primary and Secondary sources of law
o Primary:
State and federal constitutions;
State, federal, and local statutes;
Case law, state and federal
o Secondary
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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, etc.
o Common law
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
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prevails.
Remedieso Legalo Equitable
Common lawo That which we brought over from Englando Judge made law
Substantive lawo The laws themselves: what conduct is proscribed; what are the
elements of a prima facie caseo 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 trialo Think: the process by which the substantive law is put into practiceo Without procedure, there are no rights – it is that important
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 1.2.6o Remember: the action is commenced with the filing of the complaint
with the court: the complaint sets out the allegations against the ∆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:
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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 courto 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 Summonso Clerk “files” complaint: stamps w/ date and case numbero Summons is “issued”: Clerk signs, dates, stamps
But: you must still file Proof of Service of Summons within 60 days, or face penalties
This is done after you serve the defendant with the Summons and Complaint
To ∆ in some cases:o Personal injury: Statement of Damages
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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 fiveo days after mailing; = receipt dateo 30 days after receipt date, ∆’s response is due; = default dateo 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
o If serving Outside California by mail, used certified mail Service by publication
o By court order
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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
ordero 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” backo 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
defaulto 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
Jurisdiction is divided into two branches:
1: Subject matter jurisdiction:
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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 Constitutiono An exercise of Personal JX cannot exceed either source
Statutory Limitationso States have to power to decide over whom the courts may exercise
JXo 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
THREE TYPES OF PERSONAL JX
In personam JX
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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 JXo The court has the power to adjudicate the rights of all persons in the
world with respect to a particular item of propertyo Property in question must be within the physical borders of the stateo Applies to:
Condemnation (eminent domain cases) Forfeiture of property to the state (used for criminal purposes) Settlement of decedent’s estate
Quasi in Rem JXo When court has the power to determine whether particular
individuals own specific property within the court’s controlo 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:1. Where the ∆ is present in the forum state and is personally served
with process;2. Where the ∆ is domiciled in the forum state
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3. Where the ∆ consents to JX4. 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 statute2. CA has an Unlimited Long Arm Statute
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:
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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 caseso 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 contacto This is general in personam JX
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
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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:
o Individuals Residence = domicile
o Corporations
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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 actionso The county in which the land, or some portion of it, is located;
Transitory actionso Action that can be brought in any venue where the ∆ can be
personally served with processo In any county in which any ∆ resides at commencement of actiono If no ∆ resides in CA, venue is proper in any countyo Contract actions
In the county where the obligation is to be performed; or
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Where the contract was entered intoo 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 venueo ∆ only can move for transfer, if venue is impropero 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 lawo Primary:
State and federal constitutions; State, federal, and local statutes; Case law, state and federal
o Secondary The restatements (Restatement of Contracts Second)
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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 clauseo Statutory law
Fed over state; state over localo Administrative law
Administrative agencies with power of rule and regulation; some also have investigative and adjudicative power.
EEOCo Common law
Explain Here: case law
Precedent and stare decisiso 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.
Remedieso Legalo Equitable
Substantive law
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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 trialo Think: the process by which the substantive law is put into practiceo Without procedure, there are no rights – it is that important
Criminal Law v Civil Lawo Criminal law defines the proscribed behavior and establishes
punishment: punishment sets it aparto 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 Filingo 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 outcomeo What is acceptableo What is unacceptable
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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 Defaulto Answer
Or special appearance to challenge JXo Demurrer/motion to strikeo 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 defenseo others:
accord and satisfaction, assumption of risk, duress;
insanity, coerciono 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; Defect or misjoinder of parties;
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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
Discoveryo 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
Motionso A formal application made to the court to obtain a rule or order
directing some act be done in favor of the applicanto Law and Motion calendaring
Specific dates to clear motions and move the litigation forwardo Motions in limine
At beginning of trial; protective orders against prejudicial evidence or statements
Post-trial motionso Attorney’s feeso New trialo Reduce judgment
Appeal
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o Losing party claims errors of procedure or application Enforcement of Judgment
o When losing party fails to pay/performo Liens, levy’s, contempt
CIV LIT PARA 97(a) Ch 5 GREEN (most)
Confidentialityo In CA: part of oatho Protects all information from any disclosure related to
representation, regardless of where or when derivedo Differs from A/C privilege: A/C priv applies only to communications
made during course of relationship and only covers formal testimonyo 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 privilegeo 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 dutieso 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 interesto PL’s bring conflicts from their pasto 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 donor 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
representationo 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
Standingo A person must have a concrete stake in the outcome of a caseo 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
Capacityo Adult and Competent o Emancipated minors o Fugitives lack capacity
Considering COA’so What elements much be met;o What evidence is required for each elemento How to obtain that evidenceo 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 thingso 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 Acto Breach of Ko Misrepresentationo Fraud
1016
General and specific JXo 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 protections2. Claim must relate to forum-related activities; and3. 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
Qualitative Analysiso 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 transactiono Dispositive…
1020
Rule: standard of review
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o Abuse of discretiono 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