California Bar Examination Civil Procedure (California & Federal) Syllabus

What is the federal pleading standard for a complaint after Twombly and Iqbal?

Under Rule 8(a)(2) and Twombly/Iqbal, a complaint must contain enough factual matter, accepted as true, to state a claim to relief that is plausible on its face. Legal conclusions are disregarded; the facts must allow a reasonable inference of liability beyond mere possibility.

How does California's pleading standard differ from the federal standard?

California is a fact-pleading (code pleading) state: the complaint must allege the ultimate facts constituting each element of the cause of action. Federal courts use notice pleading governed by the Twombly/Iqbal plausibility standard.

What claims must be pleaded with particularity under Federal Rule 9(b)?

Fraud and mistake must be stated with particularity (the who, what, when, where, and how). Conditions of mind such as malice, intent, and knowledge may be alleged generally. Special damages must be specifically stated.

What are a defendant's options when served with a complaint in federal court, and the deadline to respond?

The defendant must serve an answer within 21 days of service (60/90 days if waiving service) or file a Rule 12 motion. Options: answer (admit/deny + affirmative defenses) or pre-answer motions raising Rule 12(b) defenses.

List the seven defenses available under Federal Rule 12(b).

12(b)(1) lack of subject matter jurisdiction; 12(b)(2) lack of personal jurisdiction; 12(b)(3) improper venue; 12(b)(4) insufficient process; 12(b)(5) insufficient service of process; 12(b)(6) failure to state a claim; 12(b)(7) failure to join a required party under Rule 19.

Which Rule 12 defenses are waived if not raised in the first response, and which are not?

The 'disfavored' defenses, 12(b)(2) personal jurisdiction, 12(b)(3) venue, 12(b)(4) process, and 12(b)(5) service, are waived if omitted from the first Rule 12 motion or responsive pleading. Failure to state a claim (12(b)(6)) and failure to join a required party (12(b)(7)) can be raised later, and lack of subject matter jurisdiction (12(b)(1)) can be raised at any time.

What is the California analog to a federal 12(b)(6) motion, and how does it operate?

The general demurrer challenges the legal sufficiency of a pleading (failure to state facts sufficient to constitute a cause of action). California also allows a motion to strike for irrelevant/improper matter. A demurrer admits all well-pleaded facts as true for purposes of the motion.

When may a party amend a pleading once 'as a matter of course' under Federal Rule 15(a)?

A party may amend once as a matter of course within 21 days after serving it, or, if a responsive pleading is required, within 21 days after service of the responsive pleading or a Rule 12(b)/(e)/(f) motion, whichever is earlier. Otherwise amendment requires the opposing party's consent or leave of court, which is freely given when justice so requires.

State the relation-back rule for an amendment changing the defendant (Rule 15(c)).

An amendment changing the party relates back to the original filing date if: (1) it arises from the same conduct/transaction, and (2) within the Rule 4(m) service period the new party received notice such that it won't be prejudiced AND knew or should have known the action would have been brought against it but for a mistake concerning identity.

Distinguish compulsory from permissive joinder of claims under Federal Rules 18 and 13.

Claim joinder under Rule 18 is permissive: a party may join any claims it has against an opposing party. A counterclaim is compulsory under Rule 13(a) if it arises from the same transaction/occurrence (waived if not pleaded); it is permissive under 13(b) if unrelated.

When is joinder of a party 'required' (necessary) and 'indispensable' under Rule 19?

A party is required if (1) complete relief cannot be granted in their absence, or (2) their absence impairs their interest or exposes existing parties to multiple/inconsistent obligations. If a required party cannot be joined (e.g., destroys diversity), the court decides under Rule 19(b) whether the party is indispensable, requiring dismissal in equity and good conscience.

State the requirements for permissive party joinder under Rule 20.

Plaintiffs (or defendants) may be joined if (1) their claims arise out of the same transaction, occurrence, or series of transactions/occurrences, AND (2) there is a common question of law or fact to all of them.

List the four prerequisites for a class action under Federal Rule 23(a).

(1) Numerosity (class so numerous joinder is impracticable), (2) Commonality (common questions of law or fact), (3) Typicality (representative's claims are typical of the class), and (4) Adequacy (representative will fairly and adequately protect the class).

Describe the three types of class actions under Rule 23(b).

23(b)(1): separate actions risk inconsistent results or impair absent members' interests; 23(b)(2): defendant acted on grounds generally applicable to the class, making injunctive/declaratory relief appropriate; 23(b)(3): common questions predominate and a class action is superior, requiring notice and opt-out rights for damages classes.

What notice and opt-out rights apply to a Rule 23(b)(3) damages class?

Members must receive the best notice practicable, including individual notice to those reasonably identifiable. Members have the right to opt out (request exclusion). Members of (b)(1) and (b)(2) classes generally have no notice/opt-out right.

State the scope of discovery and the proportionality standard under Federal Rule 26(b)(1).

Parties may discover any nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case. Proportionality factors: importance of issues, amount in controversy, parties' relative access to information, parties' resources, importance of discovery to resolving issues, and whether burden/expense outweighs likely benefit. Information need not be admissible to be discoverable.

What are the principal discovery devices in federal practice?

Depositions (oral or written), interrogatories (Rule 33, to parties only, max 25 without leave), requests for production of documents/ESI (Rule 34), physical/mental examinations (Rule 35, court order required), and requests for admission (Rule 36).

What special requirements apply to a Rule 35 physical or mental examination?

Rule 35 requires a court order (not just a request), the party's mental or physical condition must be in controversy, and there must be good cause. It is the only discovery device requiring a court order and the only one that can compel a nonparty in the party's custody/control to be examined.

Distinguish the attorney-client privilege from the work-product doctrine.

The attorney-client privilege protects confidential communications between attorney and client made to obtain legal advice; it is absolute and survives litigation. Work product (Rule 26(b)(3)) protects materials prepared in anticipation of litigation; it is a qualified protection that can be overcome for ordinary work product on a showing of substantial need and undue hardship.

What is the distinction between 'ordinary' and 'opinion' work product?

Ordinary (fact) work product (e.g., witness statements, collected facts) is discoverable upon substantial need and inability to obtain the equivalent without undue hardship. Opinion work product, the attorney's mental impressions, conclusions, opinions, and legal theories, receives near-absolute protection.

Compare the disclosure rules for retained testifying experts versus consulting (non-testifying) experts.

A retained testifying expert must provide a written report (Rule 26(a)(2)(B)) and may be deposed. A non-testifying consulting expert is generally not discoverable except upon a showing of exceptional circumstances making it impracticable to obtain the facts/opinions by other means.

What are the three categories of required initial disclosures under Rule 26(a)(1)?

(1) Names/contact of individuals with discoverable information the disclosing party may use to support its claims/defenses, (2) copies or descriptions of documents/ESI/things it may use to support its claims/defenses, (3) a computation of damages, and (4) applicable insurance agreements. (Plus pretrial expert and witness disclosures under 26(a)(2)-(3).)

What must a party do before moving to compel discovery, and what sanctions follow noncompliance?

The movant must certify a good-faith attempt to confer (meet and confer) before moving under Rule 37(a). If a motion to compel is granted, the court usually awards reasonable expenses. If a party then violates the compel order, Rule 37(b) sanctions include establishing facts, barring claims/defenses, striking pleadings, dismissal, default, contempt, and adverse-inference instructions.

What is the safe harbor for failing to preserve electronically stored information under Rule 37(e)?

If ESI that should have been preserved is lost because a party failed to take reasonable steps and it cannot be restored/replaced, the court may order measures no greater than necessary to cure prejudice. Only upon finding intent to deprive may the court presume the information was unfavorable, instruct an adverse inference, or dismiss/enter default.

State the standard for summary judgment under Federal Rule 56.

Summary judgment is granted when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court views evidence in the light most favorable to the nonmoving party; a genuine dispute exists if a reasonable jury could return a verdict for the nonmovant.

How does California summary adjudication differ from a full summary judgment motion?

California summary judgment (CCP 437c) disposes of the entire action. Summary adjudication disposes of one or more causes of action, affirmative defenses, claims for damages (e.g., punitive damages), or duty issues, but only if it completely disposes of that cause of action/defense. The motion must be heard at least 30 days before trial and served 75 days before the hearing.

Compare voluntary and involuntary dismissal under Federal Rules 41(a) and 41(b).

Voluntary dismissal (41(a)): plaintiff may dismiss without court order before the answer or summary judgment motion, or by stipulation; the first such dismissal is without prejudice, but a second voluntary dismissal of the same claim operates as an adjudication on the merits (two-dismissal rule). Involuntary dismissal (41(b)): defendant moves to dismiss for plaintiff's failure to prosecute or comply with rules/orders; it operates as an adjudication on the merits (with prejudice) unless otherwise stated, except for jurisdiction, venue, or joinder dismissals.

How is a default entered and a default judgment obtained in federal court?

First, the clerk enters default when a defendant fails to plead/defend (Rule 55(a)). Then a default judgment may be entered by the clerk if the claim is for a sum certain (Rule 55(b)(1)), or otherwise by the court (Rule 55(b)(2)). A defendant who has appeared must receive 7 days' written notice of the judgment hearing. The judgment cannot exceed the amount demanded in the complaint.

What is the right to a jury trial in federal civil cases and how is it demanded?

The Seventh Amendment preserves the jury right for legal (not equitable) claims. In mixed cases, legal issues are tried to the jury first. A party must serve a written jury demand within 14 days after the last pleading directed to the issue, or the right is waived. Federal civil juries typically have 6-12 members and verdicts must be unanimous unless stipulated otherwise.

Distinguish a motion for judgment as a matter of law (JMOL) from a renewed JMOL (formerly directed verdict and JNOV).

A JMOL (Rule 50(a), formerly directed verdict) is made after the opposing party has been fully heard but before the case goes to the jury, granted when no reasonable jury could find for that party. A renewed JMOL (Rule 50(b), formerly JNOV) is made after an unfavorable verdict, within 28 days of judgment, and is available only if a Rule 50(a) motion was first made before submission to the jury.

State the standards for a motion for new trial under Rule 59 and the related remittitur/additur distinction.

A new trial may be granted for prejudicial errors, verdict against the great weight of the evidence, excessive/inadequate damages, juror/attorney misconduct, or newly discovered evidence; the motion is due within 28 days of judgment. Remittitur (reduce an excessive award or face new trial) is permitted in federal court; additur (increase an inadequate award) is unconstitutional in federal court but allowed in California.

What are the requirements for a preliminary injunction and a temporary restraining order?

A preliminary injunction requires the movant to show (1) likelihood of success on the merits, (2) irreparable harm absent relief, (3) the balance of equities/hardships favors the movant, and (4) the injunction serves the public interest; notice and a hearing are required, plus security under Rule 65(c). A TRO may issue ex parte and lasts up to 14 days (extendable once) to preserve the status quo until a PI hearing.

State the elements of claim preclusion (res judicata).

Claim preclusion bars relitigation when (1) a valid final judgment on the merits was entered, (2) the same claim/cause of action is asserted (same transaction or occurrence under the majority/federal view), and (3) the cases involve the same parties or those in privity. It bars all matters that were or could have been litigated in the first suit.

State the elements of issue preclusion (collateral estoppel).

Issue preclusion bars relitigation of an issue when (1) the same issue was actually litigated and determined, (2) it was essential to a valid, final judgment, and (3) it is asserted against a party (or one in privity) who had a full and fair opportunity to litigate it in the first action.

Distinguish offensive from defensive nonmutual issue preclusion.

Defensive nonmutual collateral estoppel: a new defendant uses a prior judgment to prevent a plaintiff from relitigating an issue the plaintiff lost before (generally permitted). Offensive nonmutual collateral estoppel: a new plaintiff uses a prior judgment against a defendant who lost the issue before; courts have discretion and consider fairness factors (whether the plaintiff could have joined earlier, foreseeability, prior inconsistent judgments).

State the final judgment rule and identify key exceptions allowing interlocutory appeal in federal court.

Under 28 U.S.C. 1291, generally only final judgments (those ending litigation on the merits) are appealable. Exceptions: injunction orders (1292(a)(1)); certified controlling questions of law (1292(b)); Rule 54(b) entry of final judgment on some claims in multi-claim cases; the collateral order doctrine; class certification (Rule 23(f)); and mandamus.

What is the collateral order doctrine?

An interlocutory order is immediately appealable if it (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits, and (3) is effectively unreviewable on appeal from a final judgment (e.g., denial of immunity).

Identify the three principal standards of appellate review and what each applies to.

(1) De novo: questions of law (no deference); (2) Clearly erroneous: trial court findings of fact in bench trials; (3) Abuse of discretion: discretionary rulings (e.g., evidentiary, discovery, new trial). Jury fact findings are reviewed under the highly deferential substantial-evidence standard. Harmless errors do not warrant reversal.

What is writ review in California and when is it used?

A writ (typically a writ of mandate, prohibition, or certiorari/review) is a discretionary mechanism to obtain immediate appellate review of an interlocutory order that is not appealable, where an ordinary appeal would be an inadequate remedy (e.g., to compel/restrain a lower court act, often for discovery rulings or denial of summary judgment). The petitioner must show irreparable harm or lack of adequate remedy at law; many statutes set short deadlines (e.g., 20 days for certain orders).

What does a Rule 11 certification require and what is its safe-harbor provision?

By signing a pleading or motion, an attorney certifies that it is not for an improper purpose, the legal contentions are warranted by law/nonfrivolous argument, and factual contentions have evidentiary support. Rule 11 provides a 21-day safe harbor: the challenged paper may be withdrawn/corrected before the sanctions motion is filed with the court.