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Pretrial Adjudication: Dismissals, Default, and Summary Judgment

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California Bar Exam Exam

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1 Exam Format and Core Skills

California Bar Exam Blueprint: Subjects, Components, and Recent Changes Exam Format, Scoring, and the 1390 Passing Score Essay Strategy: Issue Spotting and IRAC Core Written Skills and Timing Strategy

2 Civil Procedure

Subject Matter Jurisdiction: Federal Question, Diversity, Supplemental, Removal Personal Jurisdiction, Long-Arm, Minimum Contacts, and Service of Process Venue, Transfer, and Forum Non Conveniens The Erie Doctrine and Choice of Law Pleadings, Rule 11, Amendments, and California Demurrers / Anti-SLAPP Joinder of Claims and Parties, Impleader, Intervention, Interpleader Class Actions (Rule 23 and California) Discovery: Scope, Devices, Privilege, and Sanctions Pretrial Adjudication: Dismissals, Default, and Summary Judgment Trial, Jury, Judgment as a Matter of Law, and Post-Trial Motions Appeals, the Final Judgment Rule, and Claim/Issue Preclusion

3 Constitutional Law

Judicial Review, Justiciability, Standing, Ripeness, Mootness, and Political Questions Federal Legislative Power: Commerce, Taxing & Spending, and the Tenth and Eleventh Amendments Separation of Powers: Executive, Legislative, and Judicial Authority Federalism, Supremacy, Preemption, the Dormant Commerce Clause, and Privileges & Immunities State Action and Congressional Enforcement of the Reconstruction Amendments Procedural Due Process Substantive Due Process and Fundamental Rights Equal Protection and Levels of Scrutiny First Amendment: Speech, Press, Forums, and Association First Amendment Religion Clauses and the Takings Clause

4 Contracts

Applicable Law: Common Law vs. UCC Article 2 and Mixed Contracts Mutual Assent: Offer, Acceptance, Mailbox Rule, and UCC 2-207 Consideration, Bargained-for Exchange, and Promissory Estoppel Defenses to Formation: Capacity, Mistake, Misrepresentation, Duress, Unconscionability The Statute of Frauds Parol Evidence Rule and Contract Interpretation Conditions and Performance: Express, Constructive, and Substantial Performance Breach, Anticipatory Repudiation, and the Perfect Tender Rule Excuse of Performance: Impossibility, Impracticability, and Frustration UCC Warranties and Risk of Loss Third-Party Beneficiaries, Assignment, and Delegation Contract Remedies and UCC Buyer/Seller Remedies

5 Criminal Law and Procedure

Actus Reus, Mens Rea, Concurrence, and Causation Accomplice Liability and Parties to Crime Inchoate Crimes: Attempt, Conspiracy, and Solicitation Homicide: Murder, Manslaughter, Felony Murder, and California Degrees Other Crimes Against the Person: Assault, Battery, Kidnapping, and Sex Offenses Property and Theft Crimes: Larceny, Embezzlement, Robbery, Burglary, Arson Criminal Defenses: Insanity, Intoxication, Self-Defense, Duress, Necessity, Mistake Fourth Amendment: Searches, Seizures, Warrants, and Exceptions The Exclusionary Rule, Standing, and Fruit of the Poisonous Tree Fifth Amendment: Miranda, Self-Incrimination, and Double Jeopardy Sixth Amendment: Right to Counsel, Confrontation, Speedy Trial, and Jury Pretrial Identifications, the Eighth Amendment, and Trial Rights

6 Evidence

Relevance: Logical and Legal, Rule 403, and California Proposition 8 Policy-Based Exclusions: Subsequent Remedial Measures, Settlements, Insurance, Pleas Authentication and the Best Evidence Rule Witness Competency, Personal Knowledge, and Examination Impeachment of Witnesses Lay and Expert Opinion Testimony (Daubert and California Kelly/Sargon) Character Evidence and Other Acts (MIMIC) Habit and Methods of Proving Character Hearsay: Definition, Non-Hearsay, and Exemptions Hearsay Exceptions: Availability Immaterial (FRE 803) Hearsay Exceptions Requiring Unavailability (FRE 804) and the Confrontation Clause Privileges, Judicial Notice, and Presumptions (Federal and California)

7 Real Property

1.1 Estates in Land 1.2 Future Interests 1.3 Rule Against Perpetuities 1.4 Concurrent Ownership 1.5 Landlord-Tenant Law 1.6 Easements and Servitudes 1.7 Covenants Running with Land 1.8 Recording Acts and Title 1.9 Mortgages 1.10 Land Use Regulation Adverse Possession and Rights Incident to Ownership Land Sale Contracts, Marketable Title, and Risk of Loss Deeds, Delivery, Warranties of Title, and Fixtures

8 Torts

Intentional Torts Against the Person: Battery, Assault, False Imprisonment, IIED Intentional Torts to Property and Defenses/Privileges Negligence: Duty and the Standard of Care Negligence: Breach, Res Ipsa Loquitur, and Negligence Per Se Causation: Actual and Proximate Cause Negligence Damages and Defenses: Comparative Fault and Assumption of Risk Strict Liability: Animals and Abnormally Dangerous Activities Products Liability Private and Public Nuisance Defamation Invasion of Privacy, Misrepresentation, and Economic Torts Vicarious Liability, Joint Tortfeasors, and Immunities

9 Business Associations

Agency: Formation, Actual and Apparent Authority, and Ratification Agency: Principal/Agent Duties, Respondeat Superior, and Tort Liability General Partnerships: Formation, Rights, and Partnership Property Partnership Liability, Fiduciary Duties, Dissociation, and Dissolution Limited Partnerships, LLPs, and LLCs Corporations: Formation, Promoters, and Piercing the Corporate Veil Corporate Finance: Stock, Securities, Dividends, and Distributions Directors and Officers: Fiduciary Duties, the Business Judgment Rule, and Indemnification Shareholders, Derivative Suits, Fundamental Changes, and Federal Securities (10b-5, 16(b))

10 Community Property

General Principles, the Community Estate, and Marital Economic Community Characterization: Separate vs. Community Property and Presumptions Tracing and Commingling (Exhaustion and Direct Tracing) Transmutation and Premarital/Marital Agreements Special Assets: Businesses (Pereira/Van Camp), Goodwill, Education, Pensions, Disability Management, Control, and Spousal Fiduciary Duties Debts and Creditors' Rights Distribution at Dissolution and Death; Quasi-Community Property

11 Professional Responsibility

Regulation of the Profession, Admission, and Discipline (California Rules vs. ABA Model Rules) Competence, Diligence, Communication, and Scope of Representation Confidentiality and Its Exceptions (California vs. ABA) Conflicts of Interest: Current Clients Conflicts: Former Clients, Imputation, and Business Transactions Fees, Client Trust Accounts (IOLTA), and Safekeeping Property Duties to the Court and Third Parties: Candor, Advocacy, and Fairness Forming, Declining, and Terminating the Attorney-Client Relationship Advertising, Solicitation, and the Unauthorized Practice of Law Judicial Ethics, Reporting Misconduct, and Special Prosecutor Duties

12 Remedies

Compensatory Damages: Causation, Foreseeability, Certainty, and Mitigation Punitive, Nominal, and Liquidated Damages Restitution and Unjust Enrichment Constructive Trust and Equitable Lien Injunctions: Temporary Restraining Orders, Preliminary, and Permanent Specific Performance Reformation, Rescission, and Cancellation Equitable Defenses, Declaratory Relief, and Remedy Selection

13 Trusts

Trust Creation, Required Elements, and Types of Trusts Charitable Trusts, Cy Pres, and the Rule Against Perpetuities in Trusts Trustee Powers and Trust Administration Trustee Duties: Loyalty, Prudent Investor, and Impartiality Beneficiary Rights and Principal/Income Allocation Spendthrift, Discretionary, and Support Trusts; Creditors' Rights Modification and Termination of Trusts Breach of Trust, Remedies, and Will Substitutes (Totten, POD, Revocable Trusts)

14 Wills and Succession

Intestate Succession and California Distribution Will Execution and Formalities (Attested and Holographic; California) Testamentary Capacity, Undue Influence, Fraud, Duress, and Mistake Will Components: Integration, Incorporation, Acts of Independent Significance, and Pour-Over Revocation, Revival, and Dependent Relative Revocation Lapse, Anti-Lapse, Class Gifts, Ademption, Abatement, and Exoneration Protection of the Family: Omitted Spouse and Child, Pretermitted Heirs Will Contests, Standing, and No-Contest Clauses Probate Administration, Powers of Appointment, and Will Substitutes

15 Performance Test

The Performance Test: Task Memo, File, and Library Objective PT Products: Memos, Briefs, and Client Letters Persuasive PT Products and 90-Minute Execution

Pretrial Adjudication: Dismissals, Default, and Summary Judgment

Key Takeaways Explain This Topic AI

A plaintiff may voluntarily dismiss once without prejudice by notice before the answer or summary-judgment motion (Rule 41(a)); a second voluntary dismissal of the same claim operates as an adjudication on the merits.

An involuntary dismissal under Rule 41(b) for failure to prosecute or obey a court order generally operates as an adjudication on the merits (with prejudice).

Default judgment requires entry of default first (Rule 55(a)); the clerk may enter default judgment only for a sum certain, otherwise the court enters it.

Summary judgment under Rule 56 is granted when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law (Celotex/Anderson/Matsushita trilogy).

California summary judgment under CCP 437c requires 75 days' notice of the hearing, must be heard at least 30 days before trial, and the moving defendant must negate an element or show the plaintiff cannot establish one.

Last updated: June 2026

  • Voluntary and Involuntary Dismissals (Rule 41)
  • Voluntary dismissal (Rule 41(a))

A plaintiff may voluntarily dismiss an action:

By notice , without a court order, before the defendant serves an answer or a motion for summary judgment — this is without prejudice the first time.

Otherwise, only by stipulation of all parties or court order .

The 'two-dismissal rule': a second notice-dismissal of a claim the plaintiff previously dismissed (in any court) operates as an adjudication on the merits — i.e., with prejudice , barring refiling.

Involuntary dismissal (Rule 41(b))

A defendant may move to dismiss for the plaintiff's failure to prosecute or to comply with the rules or a court order . Unless the order states otherwise, a 41(b) dismissal (and any dismissal not under 41(a) or for lack of jurisdiction, venue, or failure to join a Rule 19 party) operates as an adjudication on the merits — with prejudice , triggering claim preclusion.

Trap: Dismissals for lack of jurisdiction, improper venue, or failure to join are expressly without prejudice — they don't bar refiling in a proper court.

Default and Default Judgment (Rule 55)

When a defendant 'has failed to plead or otherwise defend ,' the plaintiff proceeds in two steps:

Entry of default (Rule 55(a)): the clerk notes the defendant's default on the record. This is not yet a judgment; it merely establishes liability.

Entry of default judgment (Rule 55(b)):

The clerk may enter judgment only if the claim is for a sum certain (or a sum that can be made certain by computation) and the defendant did not appear.

Otherwise the court enters the judgment, and if the defendant has appeared , it must receive 7 days' written notice of the application; the court may hold a hearing to determine damages .

The default judgment cannot exceed the amount demanded in the complaint or differ in kind (Rule 54(c)).

A default or default judgment may be set aside for good cause (55(c)) or under Rule 60(b) (e.g., excusable neglect). California (CCP 473(b)) has a notable mandatory relief provision: a default caused by the attorney's sworn affidavit of fault must be set aside (within 6 months).

  • Summary Judgment: Federal Rule 56 and California CCP 437c
  • Federal summary judgment (Rule 56)

The court grants summary judgment if 'there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law .' A dispute is genuine if a reasonable jury could return a verdict for the nonmovant; a fact is material if it affects the outcome.

The Celotex trilogy sets the framework:

Celotex Corp. v. Catrett: a movant who does not bear the burden of proof may prevail by pointing out the absence of evidence supporting the nonmovant's case — it need not affirmatively disprove the claim.

Anderson v. Liberty Lobby: the court applies the substantive evidentiary standard (e.g., clear and convincing) in deciding whether a genuine issue exists.

Matsushita: where the claim is implausible, the nonmovant must come forward with more persuasive evidence.

The court views evidence in the light most favorable to the nonmovant and does not weigh credibility . A motion may be filed until 30 days after the close of discovery (default).

California summary judgment (CCP 437c)

California imposes strict, heavily tested mechanics:

  • Requirement California rule
  • Notice of hearing At least 75 days before the hearing (plus extensions for mail service)
  • Hearing timing No later than 30 days before trial unless the court orders otherwise for good cause
  • Earliest filing Generally not until 60 days after the general appearance of the responding party

Burden-shifting: A moving defendant must either (1) negate an element of the plaintiff's cause of action, OR (2) show the plaintiff cannot reasonably obtain evidence to establish an element. Only then does the burden shift to the plaintiff to produce evidence of a triable issue of material fact . California also allows summary adjudication of individual causes of action, affirmative defenses, or duty issues.

Judgment on the pleadings and the dismissal-preclusion overlap

A Rule 12(c) motion for judgment on the pleadings — made after the pleadings close — tests legal sufficiency like a 12(b)(6) motion but can be brought by either party;

California's analogue is the motion for judgment on the pleadings (CCP 438), now subject to a meet-and-confer requirement. Preclusion overlap: because most involuntary dismissals 'on the merits' under Rule 41(b) and a granted 12(b)(6) (with prejudice) trigger claim preclusion , the difference between a 'with prejudice' and 'without prejudice' dismissal is outcome-determinative for any refiling. Traps: (1) A voluntary notice-dismissal before the answer is without prejudice the first time — only the second triggers the merits bar.

(2) A default judgment cannot exceed the relief demanded in the complaint (Rule 54(c)), so a plaintiff who under-pleads damages is capped. (3) On summary judgment the court may not weigh credibility or resolve genuine factual disputes — doing so is reversible error; it only decides whether a triable issue exists.