July 2015 CA essay Forum

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Well, today, I will start.

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In CA, complaint must contain the demand for relief and statement of facts containing each cause of action. CA state court requires fact pleading, not notice pleading. For damages, damages must be pleaded but the actual and punitive damages for wrongful death and personal injury cannot be pleaded.

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The defense of failure to state a claim can be raised in any pleading, in a motion, for judgment on the pleading or at trial.

The defense of failure to join a necessary or indispensable party under rule 19 may be raised in nay pleading, in a motion for judgment on the pleadings, or at trial.

[goldeneye]

What the hell is this? July?

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A defendant may choose to object to the allegations in a complaint by filing an answer, or either a general or special demurrer to the entire complaint or any of its causes of act

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Under rule 12(b)(6), if the matter outside pleading such as affidavit is presented the motion must be treated as motion for summary judgment under rule 56 and all parties must be given an opportunity to present all material information.

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two step analysis: 12(b)(6)

1) conclusionary statement not allowed
2) plausibility must be met

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Motion granted

P can amend and continue. P can also appeal if judgment is entered.

Motion denied

D can answer claim or appeal after allowing default judgment to be entered.

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Motion for judgment on the pleadings

12(c)

Not often used because of availability of 12(b)(6) and 56

It allows a court to dispose of a case when the material facts are not in dispute and the judgment can achieved based on the content of the pleadings. After the pleadings are closed a party may move.

After answer is filed it is made.

Standard is same as 12(b)(6).

If matters outside pleading are presented and the court exclude, this motion is to be treated as a motion under rule 56.

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Motion for a more definite statement

12(e)

If a claim is vague and ambiguous, and responding party cannot draft a responsive pleading, the responding party may move. Must specify defects and details.

The party must make a motion for a more definite statement before filing a responsive pleading. The court may strike the failure to respond to such a motion within 14 days of the notice.

Because discovery is available, courts are generally reluctant.

It may be appropriate when the pleader fails to allege facts required to be specifically pleaded, such as ( ) or ( ).

The standard for granting such a motion is whether the pleading provides enough ( ) from which the responding party can ( ) a responsive pleading and commence ( ).

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MOTION TO STRIKE

12(f)

If a pleading contains insufficient defense, redundant, immaterial, impertinent, scandalous material, the court may order such defense or material be stricken.

The party must move prior to responding. When no responsive pleading is permitted, the party must make a motion within ( ) days after the service of the pleading.

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CA

(1) motion to strike

A party may move to strike any ( ), false, or ( ) matter or any part of pleading not in conformity with rule or court order. It must be filed in 30 days.

(2) ( ) motion to strike

A defendant may, within ( ) days after service of complaint, file an anti-SLAPP motion, when the plaintiff has filed a strategic lawsuit against public ( ).

Defendant must show that the cause of action in the complaint arises from a protected activity (free speech or petition for redress of grievances). Burden shifts to plaintiff to show a ( ) of prevailing on the ( ). Motions are restricted to certain ( ) interest lawsuits, ( ) actions, and actions that arise from commercial statements or ( ).

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An answer is a pleading by the defendant that responds to plaintiff's complaint. A plaintiff would also file an answer if responding to a defendant's counterclaim.

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The answer must admit or ( ) the allegations of the plaintiff's complaint. Lack of sufficient information amounts to denial. Defendant must make a reasonable investigation into whether the information exists and how difficult it would be to ascertain.

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Specific denial is a denial of a particular paragraph or allegation in the complaint or other claim for relief(counterclaim, cross-claim,etc.).

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A party can respond to each paragraph of the complaint by either 1) denying the allegation in the paragraph, 2) admitting it, 3) pleading insufficient knowledge to either admit or deny it, or 4) admitting part of the allegation and either denying or pleading insufficient knowledge as to the rest.

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A party can make a general denial stating that he denies every allegation of the complaint. This may be only done, if the party, in good faith, intends to controvert all of the allegations.

A party can also make a qualified general denial, stating that he denies evey allegation in the complaint, except certain specified allegations.

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Effect of failure to deny

An allegation, other than one relating to the amount of ( ), will be deemed admitted if a responsive pleading is required and the allegation is not denied.

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The answer must state any avoidance or affirmative defenses that the defendant or responding party has, or that defense is deemed waived.

[goldeneye]

Can you please explain what you are doing for those of us taking this exam

[A. Nony Mouse]

TLS isn't a note-taking depository. What are you doing here?

[hyc9598]

AFFIRMATIVE DEFENSES

Accord and satisfaction

Arbitration and award

Assumption of risk

Contributory negligence

Duress

Estoppel

Failure of consideration

Fraud

Illegality

Injury by fellow servant

Laches

License

Payment

Release

Res judicata

Statute of Frauds

Statute of limitations

Waiver

The list is non-exhaustive. If there are other affirmative defenses like novation, qualified immunity, even if they are inconsistent they must be raised.

[A. Nony Mouse]

Explain to me why I shouldn't lock this?

[hyc9598]

I think UCC will not appear, but who knows?

[Feb 2005] The key to answering contract question is quick resolution of the issues as there are so many issues. This was the question 2. I would write question 2 first.

PC manufactures computers. Mart operates electronic stores.

On August 1, after some preliminary discussion, PC sent a fax on PC letterhead to Mart stating:

We agree to fill any orders during the next 6 months for our model X computer (maximum 4,000 units) at $1,500 each.

On August 10, Mart responded with a fax stating:

We are pleased to accept your proposal. Our stores will conduct an advertising campaign to introduce the Model X computer to our customers.

On September 10, Mart mailed an order to PC for 1,000 Model X computers. PC subsequently delivered them. Mart arranged with local newspapers for advertisements touting the Model X. The advertising was effective, and the 1,000 units were sold by the end of October.

On November 2, Mart mailed a letter to PC stating:

Business is excellent. Pursuant to our agreement, we order 2,000 more units.

On 11/3, before receiving M's 11/2 letter, P sent the following fax to M:

We have named W as our exclusive distributor. All orders must now be negotiated through W.

After M received the fax from P, it contacted W to determine the status of its order. W responded that it would supply M with all the Model X computers that M wanted, but at a price of $1,700 each.

On 11/15, M sent a fax to P stating:

We insist on delivery of our 11/2 order for 2,000 units of Model X at the contract price of $1,500 each. We also hereby exercise our right to purchase the remaining 1,000 units of Model X at that contract price.

P continues to insist that all orders must be negotiated through W, which still refuses to sell the Model X computers for less than $1,700 each.

1. If M buys the 2,000 Model X computers ordered on 11/2 from W for $1,700 each, can it recover the $200 differential from P?
2. Is M entitled to buy the 1,000 Model X computers ordered on 11/15 for $1,500 each? Discuss.

[s1m4]

This is actually pretty helpful - please keep it up.