David Levine - Quick Review of California Civil Procedure

JESSE H. CHOPER

Professor of Law and Dean Emeritus,
University of California, Berkeley

JOSHUA DRESSLER

Distinguished University Professor, Frank R. Strong Chair in Law
Michael E. Moritz College of Law, The Ohio State University

YALE KAMISAR

Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan

MARY KAY KANE

Professor of Law, Chancellor and Dean Emeritus,
University of California,
Hastings College of the Law

LARRY D. KRAMER

President, William and Flora Hewlett Foundation

JONATHAN R. MACEY

Professor of Law, Yale Law School

ARTHUR R. MILLER

University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University

GRANT S. NELSON

Professor of Law, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles

A. BENJAMIN SPENCER

Earle K. Shawe Professor of Law,
University of Virginia School of Law

JAMES J. WHITE

Robert A. Sullivan Professor of Law Emeritus,
University of Michigan

Third Edition

David I. Levine

Professor of Law
University of California
Hastings College of the Law

Rochelle J. Shapell

Adjunct Professor of Law
University of California
Hastings College of the Law

QUICK REVIEW SERIES

The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

Sum & Substance Quick Review Series is a Publication of West Academic Publishing.

West, a Thomson business, 2008
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2016 LEG, Inc. d/b/a West Academic

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ISBN: 978-0-314-29022-9

For Our Parents

As students go through law school, they sometimes wonder whether they should know more about the differences in civil practice in state and federal courts. Failing to act on this concern is risky. Students who start their professional careers assuming that civil procedure in Californias state courts fully mirrors the federal system they encountered in their first procedure course are in for a surprise. It is especially perilous to presume that the two systems operate the same now that state civil procedure is eligible for testing on the California Bar Examination.

Readers who find their way to this Quick Review will probably fall into one of four groups. Some law students will have chosen to take an advanced course in California Civil Procedure and are now looking for a study guide. Other students will have neglected or elected not to take a state procedure course, but are nevertheless interested in learning about the differences between the two systems. Graduating students looking toward the California Bar Examination may find this outline a helpful supplemental study aid. New (or not so new) lawyers may also find this Quick Review to be a handy guide if they are about to be cast into the unfamiliar territory of state court. Whichever category describes you best, we hope that this Quick Review will fill your needs.

This Quick Review provides a tour through the most important aspects of California civil procedure. The book focuses on topics usually not covered in the standard first-year course in procedure where California has taken a road not followed in federal practice. It also features topics where California procedural law has solved problems in somewhat different fashion than in federal courts. Throughout the book you will find sections entitled Compare Federal Procedure, which expressly highlight the state/federal differences that are so crucial to this field of study. Finally, each chapter contains many illustrations and sample examination questions, placed in California state courts, so you can test your understanding of the topics. (All characters appearing in illustrations and sample examination questions are fictitious. Any resemblance to real persons, living or dead, is coincidental.)

Nearly all of the state and federal statutes and rules cited in the Quick Review can be found in David I. Levine, Civil Procedure in California: State and Federal. West Academic publishes this paperback of supplemental materials annually. In Chapter 1 of the vi Quick Review, we cite to useful secondary sources for further understanding of, or research in, California Civil Procedure.

We express our sincere thanks to Sarah Barr for her valuable research assistance in the development of this edition of the Quick Review. Her help would not have been possible without the support of our home institution, University of California, Hastings College of the Law. Most of all, we thank William R. Slomanson of Thomas Jefferson School of Law, our co-author on Cases and Materials in California Civil Procedure (West Academic, 5th ed. 2015). Through our long collaboration on that project, he has contributed mightily to our understanding of this complex field.

D.I.L.
R.J.S.

November 2015

Third Edition

Primary authorities constitute the law. See CCP 18951899. All primary authorities have binding force in their respective jurisdictions.

Californias Constitution contains several procedural provisions. For example, the Constitution sets out the structure and hierarchy of the states trial and appellate courts (art. VI), and it secures the right to a jury trial in civil and criminal cases (art. I, 16). In contrast to the U.S. Constitution, the state Constitution explicitly provides an inalienable right to privacy (art. I, 1), which affects such procedural matters as the scope of discovery (see Chapter 4).

The federal Constitution impacts California procedure to the extent its provisions apply to the states. For example, the Due Process Clause of the Fourteenth Amendment is applicable to the exercise of personal jurisdiction in California. (See Chapter 2(II).) However, the Seventh Amendments right to a jury trial in civil cases does not apply to the states. Minneapolis & St. Louis Railroad Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595 (1916). (See Chapter 6(II).)

The California Code of Civil Procedure (CCP) is the repository for numerous provisions enacted by the California Legislature that govern state civil procedure. In addition to the CCP, several other California codes contain important procedural statutes, including the Civil, Evidence, and Government Codes.