An is a whereas, a (usually for answer general appearance… motion to is a lack of personal jurisdiction) special appearance In federal court, is an lack of personal jurisdiction affirmative defense, which MAY be included in answer… BUT, in CA, b/c an is a answer general appearance, lack of personal … is waived if NO preceding (Roy jurisdiction motion to quash v. Sup. Ct.) CA does NOT like federal system allowing lack of personal to be raised later waste of time/$$… jurisdiction thus, D MAY file w/ motion to quash demurrer, motion to strike, … OR (CCP BUT, once answer § 418.10(e)(3))… general appearance is made, then is waived… lack of personal jurisdiction AND, easy to inadvertently to make make general appearance … narrowly-tailored (do NOT ask for more relief) motion to quash SoL as most common favored b/c avoids delay… BUT, SoL affirmative defense disfavored b/c there is NO assessment of merits Generally, accrues when last element of cause of action occurs SoL (wrongful act/result occurs AND consequent liability arises)… BUT, as per (exception), delayed until P reasonably discovery rule SoL … should have known OR does know (Norgart v. Upjohn) Best for D to determine the earliest point at which MAY have SoL accrued AND raise as then, prepare for P to affirmative defense… argue for statutory tolling Likewise, best for P to calculate conservatively file as far in SoL advance as possible (if ends on Saturday, file on Friday) SoL equitable (bar late/delayed equity claim, even if has NOT Laches SoL SoL run) Amendments CA allows one amendment to pleading w/ NO court permission (CCP § 472)… BUT, court permission required thereafter Timing of first amendment in CA either before answer/demurrer –OR– after BUT before trial… demurrer whereas, in federal amendment ONLY until responsive pleading … filed permission/costs almost always required (even w/ good grounds)
An answer is a general appearance… whereas, a motion to (usually for lack of personal jurisdiction) is a special appearance In federal court, lack of personal jurisdiction is an affirmative defense, which MAY be included in answer… … BUT, in CA, b/c an answer is a general appearance, lack of personal jurisdiction is waived if NO preceding motion to quash (Roy v. Sup. Ct.) CA does NOT like federal system allowing lack of personal jurisdiction to be raised later waste of time/$$… … thus, D MAY file motion to quash w/ demurrer, motion to strike, OR answer (CCP § 418.10(e)(3))… BUT, once general appearance is made, then lack of personal jurisdiction is waived… … AND, easy to inadvertently to make general appearance make motion to quash narrowly-tailored (do NOT ask for more relief) SoL SoL as most common affirmative defense favored b/c avoids delay… BUT, disfavored b/c there is NO assessment of merits Generally, SoL accrues when last element of cause of action occurs (wrongful act/result occurs AND consequent liability arises)… … BUT, as per discovery rule (exception), SoL delayed until P reasonably should have known OR does know (Norgart v. Upjohn) Best for D to determine the earliest point at which SoL MAY have accrued AND raise as affirmative defense… then, prepare for P to argue for statutory tolling Likewise, best for P to calculate SoL conservatively file as far in advance as possible (if SoL ends on Saturday, file on Friday) Laches equitable SoL (bar late/delayed equity claim, even if SoL has NOT run) Amendments CA allows one amendment to pleading w/ NO court permission (CCP § 472)… BUT, court permission required thereafter Timing of first amendment in CA either before answer/demurrer –OR– after demurrer BUT before trial… … whereas, in federal amendment ONLY until responsive pleading filed permission/costs almost always required (even w/ good grounds)
Civ-Pro-II_Bakhshian-Fall-2009.docx