The topic of this blog post is a discussion of confirming an arbitration award in the State of California. Many agreements and contracts now
include an arbitration provision providing that all disputes, or in some cases
certain specified disputes, shall be sent to arbitration.
Arbitration is growing in popularity as its primary purpose is to provide a speedy and relatively
inexpensive means of dispute resolution.
However, unless an arbitration award has been confirmed by a California
Court, collecting or otherwise enforcing the arbitration award against the other
party is difficult, although some but not all escrow companies
in California will accept a valid arbitration award and disburse funds according to the award of the arbitrator. A party to an
arbitration in which an award has been made may petition the court to confirm
the award. See Code of Civil Procedure §1285.
Any award confirmed by a California Court is considered the same as, and may
be enforced in the same manner as, any other judgment entered by a California
Court. See Code of Civil Procedure §1287.4.
A party seeking to confirm an award must file a petition not later than four
years after the date of service of a signed copy of the award on petitioner. See
Code of Civil Procedure §1288; see also Weinberg v. SafeCo Ins. Co. of
America (2004) 114 Cal. App. 4th 1075, 1083-1084.
If a petition or response under Code of Civil Procedure §§1285 through 1287.6
is duly served and filed after an award has been rendered, the court shall
confirm the award as made, unless, in accordance with those statues, it corrects
the award and confirms it as corrected, vacates the award, or dismisses the
proceeding. Code of Civil Procedure §1286; see Weinberg v. SafeCo Ins. Co. Of
America (2004) 114 Cal. App. 4th 1075, 1083; Pacific Law Group: USA v. Gibson
(1992) 6 Cal. App. 4th 557, 581-582.
Every presumption is in favor of the validity of arbitration award. The party
claiming invalidity has the burden of supporting that claim with evidence. See
United Brotherhood of Carpenters Etc., v. De Mello (1973) 22 Cal. App. 3d 838,
840; Walter v. National Indem. Co. (1970) 3 Cal. App. 3d 630, 633.
And the party against whom the arbitration award was entered is barred from
filing any petition to vacate the arbitration award unless a petition is filed
within 100 calendar days after service of a signed copy of the award on the
petitioner. See Code of Civil Procedure § 1288, see also Weinberg v. SafeCo Ins.
Co. of America (2004) 114 Cal. App. 4th 1075, 1083-1084.
Thus any party seeking to confirm an arbitration award should wait until at
least 101 calendar days after service of a signed copy of the award on the
petitioner before filing any petition to confirm an arbitration award to to prevent the other party for attempting to vacate the arbitration award.
Attorneys or parties in the State of California who wish to view a sample
petition to confirm arbitration award sold by the author can click below. http://www.scribd.com/doc/117474723/Sample-Petition-to-Confirm-Arbitration-Award
The author of this blog post, Stan Burman, is a freelance paralegal who has
worked in California litigation since 1995.
If you enjoy this blog post, tell others about it. They can subscribe to the
author's weekly California legal newsletter by visiting the following link: http://www.legaldocspro.net/newsletter.htm
The author's website: http://www.legaldocspro.net
View numerous sample documents sold by the author:
http://www.scribd.com/legaldocspro
Copyright 2012 Stan Burman. All rights reserved.
DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney
and as such is unable to provide any specific legal advice. The author is NOT
engaged in providing any legal, financial, or other professional services, and
any information contained in this blog post is NOT intended to constitute legal
advice.
These materials and information contained in this blog post have been
prepared by Stan Burman for informational purposes only and are not legal
advice. Transmission of the information contained in this blog post is not
intended to create, and receipt does not constitute, any business relationship
between the author and any readers. Readers should not act upon this information
without seeking professional counsel.
Tuesday, December 25, 2012
Tuesday, November 27, 2012
Assignments of judgments in the State of California
Assignments of judgments in the State of California are the topic of this blog post. Civil Code § 954 states that a judgment creditor in California may assign the judgment to a third person.
Assignments of judgments in California are now very widely used compared to 20 years ago when the author worked in commercial and industrial property management and collected Court judgments for his employer.
However the assignment should state that "all right, title and interest" in the judgment is being assigned to avoid any objections as the California Supreme Court has ruled that an assignment of only part of a judgment probably is not valid unless the judgment debtor consents or ratifies the assignment, see Buckeye Ref. Co. v. Kelly (1912) 163 Cal. 8, 12.
All of the assignments of judgment that the author uses in collecting judgments state that "all right, title and interest in the judgment" is being assigned.
An assignment of judgment in California generally transfers all the rights that the judgment creditor had to the assignee of record.
"In doing so, the judgment creditor assigns the debt upon which the judgment is based. Through such an assignment, the assignee ordinarily acquires all the rights and remedies possessed by the assignor for the enforcement of the debt, subject, however, to the defenses that the judgment debtor had against the assignor." Great Western Bank v. Kong (2001) 90 Cal. App. 4th 28, 31, 32, (internal citation omitted).
An assignee may become the assignee of record by filing an acknowledgment of assignment with the clerk of the court that entered the judgment, see Code of Civil Procedure, § 673(a).
The acknowledgment must be made in the same manner as an acknowledgment of a real property conveyance. It must be executed and acknowledged by the judgment creditor or by the prior assignee of record (if any), see Code of Civil Procedure § 673(c).
Pursuant to Code of Civil Procedure § 673(b), the acknowledgment must contain:
The title of the court where the judgment is entered and the cause and number of the action;
The date of entry of the judgment and any renewals, and where entered in the court records;
The judgment creditor's name and address, and the judgment debtor's name and last known address;
A statement describing the right represented by the judgment that is assigned to the assignee, such as whether the assignment is absolute such as a sale, or merely for collection, and whether the judgment is for money, etc.;
The assignee's name and address.
If the assignment does not contain the information listed the judgment debtor could object to any enforcement actions taken by the assignee of record.
However, so long as the assignment of judgment complies with the provisions of Code of Civil Procedure §§ 673 and 681.020, a judgment debtor cannot object to the legal standing of the assignee of record. See California Coastal Comm. v. Allen (2008) 167 Cal.App. 4th 322, 327, rehearing denied, review denied, in which the Court of Appeal stated that, "These statutes, read together, specify requirements for an assignee to obtain standing as a judgment creditor to enforce a judgment under the Enforcement of Judgments Law. No provision is made for a debtor to attack the judgment creditor's authority to make the assignment; the scope of the provision is limited to the process for an assignee to obtain standing to proceed as a creditor. For this reason, we conclude the Legislature did not intend a proceeding under the Enforcement of Judgments Law to become a forum for litigating the validity of the underlying assignment agreement", and at page 328 of California Coastal Comm. v. Allen 167 Cal.App. 4th, supra, it states that, "Allen argues this was insufficient because the acknowledgment stated that the judgment creditor "has temporarily assigned" its right in the judgment. We are provided no authority holding that an assignment must be permanent in order to grant standing to the assignee. " See also Cal. Forms of Pleading and Practice (2008) ch. 318, Judgments, § 318.155; 2 Goldsmith et al., Matthew Bender Practice Guide: Cal. Debt Collection and Enforcement of Judgments (2008) § 14.08; 8 Witkin, Cal. Procedure (5th ed. 2008) Enforcement of Judgment, §§ 24, 217.
An exception would be if the assignee of record lacks capacity to enforce the judgment such as with a suspended corporation or similar problem.
A party can also become the assignee of record by using any other available means to become an assignee of record such as pursuant to a probate court order where the judgment is an asset of the decedent, see Code of Civil Procedure § 673(d).
Upon execution and delivery to the assignee of a written assignment of the rights represented by a judgment, the judgment is perfected and becomes enforceable against third persons, see Fjaeran v. San Bernardino County Board of Supervisors (1989) 210 Cal. App. 3d 434, 440–441, in that case the Court ruled that a pre-tax-sale judgment assignee who did not record the assignment could still file a claim for excess sale proceeds.
However, an assignee must become the "assignee of record" before he or she can obtain a writ of execution or otherwise enforce the judgment under the Enforcement of Judgments Law, see Code of Civil Procedure § 681.020; see also Fjaeran v. San Bernardino County Board of Supervisors, supra, 210 Cal.App 3d at 440, and see also Great Western Bank v. Kong, supra, 90 Cal. App. 4th at 32.
Note that if a judgment creditor makes a bona fide assignment of the same judgment to two or more assignees neither of whom has notice of the other assignment(s), the assignee who first becomes the assignee of record by filing an acknowledgment of assignment with the court or otherwise has priority, see Civil Code § 954.5(b).
The author has seen that situation before as he collected unpaid judgments in the State of California from 1992 through 2008. Many judgment creditors will forget that they assigned their judgment to someone else, and will attempt to assign the judgment again to another person even though the previous assignment of judgment was filed with the Court.
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995. Visit his website at http://www.legaldocspro.com
If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California and Federal legal newsletter by visiting the following link:
Subscribe to FREE weekly newsletter
View numerous sample documents sold by the author: http://www.scribd.com/legaldocspro
Copyright 2012 Stan Burman. All rights reserved.
DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
Assignments of judgments in California are now very widely used compared to 20 years ago when the author worked in commercial and industrial property management and collected Court judgments for his employer.
However the assignment should state that "all right, title and interest" in the judgment is being assigned to avoid any objections as the California Supreme Court has ruled that an assignment of only part of a judgment probably is not valid unless the judgment debtor consents or ratifies the assignment, see Buckeye Ref. Co. v. Kelly (1912) 163 Cal. 8, 12.
All of the assignments of judgment that the author uses in collecting judgments state that "all right, title and interest in the judgment" is being assigned.
An assignment of judgment in California generally transfers all the rights that the judgment creditor had to the assignee of record.
"In doing so, the judgment creditor assigns the debt upon which the judgment is based. Through such an assignment, the assignee ordinarily acquires all the rights and remedies possessed by the assignor for the enforcement of the debt, subject, however, to the defenses that the judgment debtor had against the assignor." Great Western Bank v. Kong (2001) 90 Cal. App. 4th 28, 31, 32, (internal citation omitted).
An assignee may become the assignee of record by filing an acknowledgment of assignment with the clerk of the court that entered the judgment, see Code of Civil Procedure, § 673(a).
The acknowledgment must be made in the same manner as an acknowledgment of a real property conveyance. It must be executed and acknowledged by the judgment creditor or by the prior assignee of record (if any), see Code of Civil Procedure § 673(c).
Pursuant to Code of Civil Procedure § 673(b), the acknowledgment must contain:
The title of the court where the judgment is entered and the cause and number of the action;
The date of entry of the judgment and any renewals, and where entered in the court records;
The judgment creditor's name and address, and the judgment debtor's name and last known address;
A statement describing the right represented by the judgment that is assigned to the assignee, such as whether the assignment is absolute such as a sale, or merely for collection, and whether the judgment is for money, etc.;
The assignee's name and address.
If the assignment does not contain the information listed the judgment debtor could object to any enforcement actions taken by the assignee of record.
However, so long as the assignment of judgment complies with the provisions of Code of Civil Procedure §§ 673 and 681.020, a judgment debtor cannot object to the legal standing of the assignee of record. See California Coastal Comm. v. Allen (2008) 167 Cal.App. 4th 322, 327, rehearing denied, review denied, in which the Court of Appeal stated that, "These statutes, read together, specify requirements for an assignee to obtain standing as a judgment creditor to enforce a judgment under the Enforcement of Judgments Law. No provision is made for a debtor to attack the judgment creditor's authority to make the assignment; the scope of the provision is limited to the process for an assignee to obtain standing to proceed as a creditor. For this reason, we conclude the Legislature did not intend a proceeding under the Enforcement of Judgments Law to become a forum for litigating the validity of the underlying assignment agreement", and at page 328 of California Coastal Comm. v. Allen 167 Cal.App. 4th, supra, it states that, "Allen argues this was insufficient because the acknowledgment stated that the judgment creditor "has temporarily assigned" its right in the judgment. We are provided no authority holding that an assignment must be permanent in order to grant standing to the assignee. " See also Cal. Forms of Pleading and Practice (2008) ch. 318, Judgments, § 318.155; 2 Goldsmith et al., Matthew Bender Practice Guide: Cal. Debt Collection and Enforcement of Judgments (2008) § 14.08; 8 Witkin, Cal. Procedure (5th ed. 2008) Enforcement of Judgment, §§ 24, 217.
An exception would be if the assignee of record lacks capacity to enforce the judgment such as with a suspended corporation or similar problem.
A party can also become the assignee of record by using any other available means to become an assignee of record such as pursuant to a probate court order where the judgment is an asset of the decedent, see Code of Civil Procedure § 673(d).
Upon execution and delivery to the assignee of a written assignment of the rights represented by a judgment, the judgment is perfected and becomes enforceable against third persons, see Fjaeran v. San Bernardino County Board of Supervisors (1989) 210 Cal. App. 3d 434, 440–441, in that case the Court ruled that a pre-tax-sale judgment assignee who did not record the assignment could still file a claim for excess sale proceeds.
However, an assignee must become the "assignee of record" before he or she can obtain a writ of execution or otherwise enforce the judgment under the Enforcement of Judgments Law, see Code of Civil Procedure § 681.020; see also Fjaeran v. San Bernardino County Board of Supervisors, supra, 210 Cal.App 3d at 440, and see also Great Western Bank v. Kong, supra, 90 Cal. App. 4th at 32.
Note that if a judgment creditor makes a bona fide assignment of the same judgment to two or more assignees neither of whom has notice of the other assignment(s), the assignee who first becomes the assignee of record by filing an acknowledgment of assignment with the court or otherwise has priority, see Civil Code § 954.5(b).
The author has seen that situation before as he collected unpaid judgments in the State of California from 1992 through 2008. Many judgment creditors will forget that they assigned their judgment to someone else, and will attempt to assign the judgment again to another person even though the previous assignment of judgment was filed with the Court.
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995. Visit his website at http://www.legaldocspro.com
If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California and Federal legal newsletter by visiting the following link:
Subscribe to FREE weekly newsletter
View numerous sample documents sold by the author: http://www.scribd.com/legaldocspro
Copyright 2012 Stan Burman. All rights reserved.
DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
Sunday, November 18, 2012
Business and Professions Code Section 17200 litigation in California
This blog post gives a brief overview of litigation under California Business and Professions Code Section 17200, et. seq., also known as the Unfair Competition Law, or "UCL". The statutes are also referred to as the Unfair Business Practices Law and other names. The scope of the UCL in California is very broad.
The main purpose of the UCL is to protect the public from unscrupulous business practices. Its scope is very broad. In fact, until passage of Proposition 64 in November 2004, a violation of the UCL, as opposed to common law fraud, could be shown even if no one was actually deceived or relied upon the fraudulent practice or sustained any damage. A violation required only a showing that "members of the public are likely to be deceived." And the law also allowed individuals or groups that never suffered any loss or harm to sue on behalf of the "general public" without satisfying any of the traditional class action requirements.
In addition, the pleading requirements and standards of proof were very relaxed and allowed recovery, sometimes on a representative basis, upon merely a determination that the challenged conduct was "unfair" or "likely to deceive a reasonable consumer," without any proof whatsoever of actual injury or damages. The lack of any formal class action requirements also meant that UCL judgments bound only the named plaintiff and not the "general public" they were supposed to represent, raising the very real prospect of being sued again and suffering repeat liability for the same conduct for an unlucky defendant.
Several highly publicized cases in which several attorneys who have since been disbarred filed multiple lawsuits against multiple defendants for trivial violations of minor laws made the news. Clearly the UCL was being used by certain parties and attorneys to squeeze "nuisance money" out of defendants, many of whom were minority small business owners.
The resulting public uproar resulted in the passage of Proposition 64 in November 2004 which made important procedural changes to Section 17200 and Section 17500, which benefitted large and small businesses that do business in California.
As a result of the passage of Proposition 64, the UCL now requires that a plaintiff show he or she has suffered an actual injury and has lost money or property as a result of such unfair competition. The UCL also contains cross-references to California's class action statute, which means that all representative actions under Section 17200 or Section 17500 are now required to meet regular class action requirements.
The most common of the remedies under the UCL are injunctive relief, and restitution and/or disgorgement of business profits obtained in violation of the UCL. Section 17203 does authorize the court to fashion remedies to prevent, deter, and compensate for unfair business practices. In addition to injunctions, it authorizes orders that are necessary to prevent practices that constitute unfair competition and to make "orders or judgments…as may be necessary to restore" to persons in interest any money or property acquired by unfair competition.
Another huge advantage of the UCL is that plaintiffs can recover attorneys' fees by establishing the required elements under Code of Civil Procedure Section 1021.5, which is the private attorney general fee statute in California. Obviously, this creates a strong incentive for plaintiffs to diligently prosecute UCL claims.
As stated by a California Court of Appeal, the UCL itself does not prohibit any specific activities but it does prohibit any unlawful, unfair or fraudulent business acts or practices, as well as deceptive, untrue or misleading advertising.
"The UCL does not proscribe specific activities, but broadly prohibits any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising. The UCL governs anti-competitive business practices as well as injuries to consumers, and has as a major purpose the preservation of fair business competition. By proscribing "any unlawful business practice," section 17200 "borrows" violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable. Because section 17200 is written in the disjunctive, it establishes three varieties of unfair competition-acts or practices which are unlawful, or unfair, or fraudulent. In other words, a practice is prohibited as "unfair" or "deceptive" even if not "unlawful" and vice versa." Puentes v. Wells Fargo Home Mortg., Inc., (2008) 160 Cal. App. 4th 638, 643-644 (internal citations and quotations omitted).
In discussing the unfair aspect of the UCL, the California Supreme Court stated that, "Any finding of unfairness to competitors under section 17200 [must] be tethered to some legislatively declared policy or proof of some actual or threatened impact on competition. We thus adopt the following test: When a plaintiff who claims to have suffered injury from a direct competitor's "unfair" act or practice invokes section 17200, the word "unfair" in that section means conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition." See Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., (1999) 20 Cal. 4th 163, 186-187.
And in discussing the fraudulent aspect of the UCL, in Puentes, supra 160 Cal. App. 4th at 645 (internal citations and quotations omitted), a California Court of Appeal stated that, "The term "fraudulent" as used in section 17200 does not refer to the common law tort of fraud but only requires a showing members of the public are likely to be deceived. Unless the challenged conduct targets a particular disadvantaged or vulnerable group, it is judged by the effect it would have on a reasonable consumer. "
And a violation of any law, whether it be a federal, state or local law can support a cause of action under the UCL.
And in regards to the unlawful aspect of the UCL, a California Court of Appeal stated that, "By proscribing "any unlawful" business practice, Business and Professions Code section 17200 "borrows" violations of other laws and treats them as unlawful practices that the UCL makes independently actionable. An unlawful business practice under Business and Professions Code section 17200 is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law. Virtually any law, federal, state or local can serve as a predicate for an action under Business and Professions Code section 17200. " Hale v. Sharp Healthcare, (2010) 183 Cal. App. 4th 1373, 1382-1383 (internal citations and quotations omitted).
However, the facts supporting the statutory elements of the violation must be stated with reasonable particularity.
"A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation." Khoury v. Maly's of California, Inc., (1993) 14 Cal. App. 4th 612, 619 (internal citations and quotations omitted).
In addition to the many other advantages to traditional litigation, the UCL makes it economically feasible to sue when individual claims are too small to justify the expense of litigation and thereby encourages attorneys to undertake private enforcement actions
Attorneys or parties in California who would like to view a sample complaint that includes a cause of action for violations of the unfair competition law sold by the author can click below.
http://www.scribd.com/doc/117352108/Sample-Complaint-for-Unfair-Business-Practices-in-California
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.
If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California legal newsletter by visiting the following link: http://www.legaldocspro.net/newsletter.htm
The author's website: http://www.legaldocspro.net
View numerous sample documents sold by the author: http://www.scribd.com/legaldocspro
Copyright 2012 Stan Burman. All rights reserved.
DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
The main purpose of the UCL is to protect the public from unscrupulous business practices. Its scope is very broad. In fact, until passage of Proposition 64 in November 2004, a violation of the UCL, as opposed to common law fraud, could be shown even if no one was actually deceived or relied upon the fraudulent practice or sustained any damage. A violation required only a showing that "members of the public are likely to be deceived." And the law also allowed individuals or groups that never suffered any loss or harm to sue on behalf of the "general public" without satisfying any of the traditional class action requirements.
In addition, the pleading requirements and standards of proof were very relaxed and allowed recovery, sometimes on a representative basis, upon merely a determination that the challenged conduct was "unfair" or "likely to deceive a reasonable consumer," without any proof whatsoever of actual injury or damages. The lack of any formal class action requirements also meant that UCL judgments bound only the named plaintiff and not the "general public" they were supposed to represent, raising the very real prospect of being sued again and suffering repeat liability for the same conduct for an unlucky defendant.
Several highly publicized cases in which several attorneys who have since been disbarred filed multiple lawsuits against multiple defendants for trivial violations of minor laws made the news. Clearly the UCL was being used by certain parties and attorneys to squeeze "nuisance money" out of defendants, many of whom were minority small business owners.
The resulting public uproar resulted in the passage of Proposition 64 in November 2004 which made important procedural changes to Section 17200 and Section 17500, which benefitted large and small businesses that do business in California.
As a result of the passage of Proposition 64, the UCL now requires that a plaintiff show he or she has suffered an actual injury and has lost money or property as a result of such unfair competition. The UCL also contains cross-references to California's class action statute, which means that all representative actions under Section 17200 or Section 17500 are now required to meet regular class action requirements.
The most common of the remedies under the UCL are injunctive relief, and restitution and/or disgorgement of business profits obtained in violation of the UCL. Section 17203 does authorize the court to fashion remedies to prevent, deter, and compensate for unfair business practices. In addition to injunctions, it authorizes orders that are necessary to prevent practices that constitute unfair competition and to make "orders or judgments…as may be necessary to restore" to persons in interest any money or property acquired by unfair competition.
Another huge advantage of the UCL is that plaintiffs can recover attorneys' fees by establishing the required elements under Code of Civil Procedure Section 1021.5, which is the private attorney general fee statute in California. Obviously, this creates a strong incentive for plaintiffs to diligently prosecute UCL claims.
As stated by a California Court of Appeal, the UCL itself does not prohibit any specific activities but it does prohibit any unlawful, unfair or fraudulent business acts or practices, as well as deceptive, untrue or misleading advertising.
"The UCL does not proscribe specific activities, but broadly prohibits any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising. The UCL governs anti-competitive business practices as well as injuries to consumers, and has as a major purpose the preservation of fair business competition. By proscribing "any unlawful business practice," section 17200 "borrows" violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable. Because section 17200 is written in the disjunctive, it establishes three varieties of unfair competition-acts or practices which are unlawful, or unfair, or fraudulent. In other words, a practice is prohibited as "unfair" or "deceptive" even if not "unlawful" and vice versa." Puentes v. Wells Fargo Home Mortg., Inc., (2008) 160 Cal. App. 4th 638, 643-644 (internal citations and quotations omitted).
In discussing the unfair aspect of the UCL, the California Supreme Court stated that, "Any finding of unfairness to competitors under section 17200 [must] be tethered to some legislatively declared policy or proof of some actual or threatened impact on competition. We thus adopt the following test: When a plaintiff who claims to have suffered injury from a direct competitor's "unfair" act or practice invokes section 17200, the word "unfair" in that section means conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition." See Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., (1999) 20 Cal. 4th 163, 186-187.
And in discussing the fraudulent aspect of the UCL, in Puentes, supra 160 Cal. App. 4th at 645 (internal citations and quotations omitted), a California Court of Appeal stated that, "The term "fraudulent" as used in section 17200 does not refer to the common law tort of fraud but only requires a showing members of the public are likely to be deceived. Unless the challenged conduct targets a particular disadvantaged or vulnerable group, it is judged by the effect it would have on a reasonable consumer. "
And a violation of any law, whether it be a federal, state or local law can support a cause of action under the UCL.
And in regards to the unlawful aspect of the UCL, a California Court of Appeal stated that, "By proscribing "any unlawful" business practice, Business and Professions Code section 17200 "borrows" violations of other laws and treats them as unlawful practices that the UCL makes independently actionable. An unlawful business practice under Business and Professions Code section 17200 is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law. Virtually any law, federal, state or local can serve as a predicate for an action under Business and Professions Code section 17200. " Hale v. Sharp Healthcare, (2010) 183 Cal. App. 4th 1373, 1382-1383 (internal citations and quotations omitted).
However, the facts supporting the statutory elements of the violation must be stated with reasonable particularity.
"A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation." Khoury v. Maly's of California, Inc., (1993) 14 Cal. App. 4th 612, 619 (internal citations and quotations omitted).
In addition to the many other advantages to traditional litigation, the UCL makes it economically feasible to sue when individual claims are too small to justify the expense of litigation and thereby encourages attorneys to undertake private enforcement actions
Attorneys or parties in California who would like to view a sample complaint that includes a cause of action for violations of the unfair competition law sold by the author can click below.
http://www.scribd.com/doc/117352108/Sample-Complaint-for-Unfair-Business-Practices-in-California
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.
If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California legal newsletter by visiting the following link: http://www.legaldocspro.net/newsletter.htm
The author's website: http://www.legaldocspro.net
View numerous sample documents sold by the author: http://www.scribd.com/legaldocspro
Copyright 2012 Stan Burman. All rights reserved.
DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
Saturday, November 10, 2012
The rule of liberal construction of pleadings in California
The topic of this blog post is a brief discussion of the rule of liberal construction of pleadings in the State of California. The law in California is that all pleadings shall be liberally constructed.
Code of Civil Procedure § 452 states that: "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties."
The term pleading can mean many things including an answer, complaint, motion, petition or other document filed with the Court for the purpose of seeking relief.
The California Courts have interpreted section 452 broadly.
A California Court of Appeal has stated that "California is committed to the rule of liberal construction of pleadings, with a view to substantial justice between the parties." Simons v. Kern County (1965) 234 Cal.App.2d 362, 367. (Internal citations omitted).
And another California Court of Appeal has stated that the label or name given to petition or cause of action a is not determinative, rather it is the facts alleged and the remedy sought that determines the true nature of a pleading.
The true nature of a petition or cause of action is based on the facts alleged and remedy sought in that pleading and, as a result, the label given a petition, action or other pleading is not determinative. Escamilla v. Department of Corrections and Rehabilitation (2006) 141 Cal.App.4th 498, 511.
In discussing the policy of liberal construction as it relates to complaints, the California Supreme Court has stated that the fact that a plaintiff may have made a mistake as to the nature of their case, or even the legal theory under which they hope to prevail is not important, what is important is whether there it states any valid claim for relief.
It is not necessary that the cause of action be the one intended by plaintiff. The test is whether the complaint states any valid claim entitling plaintiff to relief. Thus, plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail. But if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.
The fact that California is committed to the rule of liberal construction of pleadings is very good news for a litigant who faces an objection to the alleged sufficiency of their pleading based on an incorrect name, or legal theory.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Any persons representing themselves should be aware that the author does NOT work directly with the public.
If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California legal newsletter by visiting the following link:
http://www.legaldocspro.net/newsletter.htm
The author's website: http://www.legaldocspro.net
View numerous sample documents sold by the author: http://www.scribd.com/legaldocspro
Copyright 2012 Stan Burman. All rights reserved.
DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
Code of Civil Procedure § 452 states that: "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties."
The term pleading can mean many things including an answer, complaint, motion, petition or other document filed with the Court for the purpose of seeking relief.
The California Courts have interpreted section 452 broadly.
A California Court of Appeal has stated that "California is committed to the rule of liberal construction of pleadings, with a view to substantial justice between the parties." Simons v. Kern County (1965) 234 Cal.App.2d 362, 367. (Internal citations omitted).
And another California Court of Appeal has stated that the label or name given to petition or cause of action a is not determinative, rather it is the facts alleged and the remedy sought that determines the true nature of a pleading.
The true nature of a petition or cause of action is based on the facts alleged and remedy sought in that pleading and, as a result, the label given a petition, action or other pleading is not determinative. Escamilla v. Department of Corrections and Rehabilitation (2006) 141 Cal.App.4th 498, 511.
In discussing the policy of liberal construction as it relates to complaints, the California Supreme Court has stated that the fact that a plaintiff may have made a mistake as to the nature of their case, or even the legal theory under which they hope to prevail is not important, what is important is whether there it states any valid claim for relief.
It is not necessary that the cause of action be the one intended by plaintiff. The test is whether the complaint states any valid claim entitling plaintiff to relief. Thus, plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail. But if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.
The fact that California is committed to the rule of liberal construction of pleadings is very good news for a litigant who faces an objection to the alleged sufficiency of their pleading based on an incorrect name, or legal theory.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Any persons representing themselves should be aware that the author does NOT work directly with the public.
If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California legal newsletter by visiting the following link:
http://www.legaldocspro.net/newsletter.htm
The author's website: http://www.legaldocspro.net
View numerous sample documents sold by the author: http://www.scribd.com/legaldocspro
Copyright 2012 Stan Burman. All rights reserved.
DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
Thursday, November 8, 2012
Opposing a motion for relief from the automatic stay in United States Bankruptcy Court
This blog post will discuss the opposing a motion for relief from the automatic stay in United States Bankruptcy Court. Note that the deadline for filing an opposition to a motion for relief from automatic stay varies with each individual Court but as a general rule the opposition should be served and filed at least fourteen (14) calendar days before the hearing, unless the notice of motion states otherwise, or the Court has otherwise ordered.
It must be stressed that the failure to file and serve a timely opposition to a motion for relief from the automatic stay may be construed by the Court as an admission that the motion has merit and should be granted. Thus a party who wishes to oppose the motion for relief from the automatic stay should do everything possible to ensure that a timely opposition is served and filed.
The automatic stay prevents creditors from taking certain actions once a petition for relief under the Bankruptcy Code has been filed. Those actions include but are not limited to, commencing or continuing any legal actions or proceedings against the debtor in another Court. It also includes attempting to collect on any judgment against the debtor that was entered in another Court before the Bankruptcy case was filed.
11 U.S.C . 362a states in relevant part: "Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of–(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title..."
The party requesting relief from the automatic stay bears the burden of establishing a prima facie case that "cause" exists for relief from the automatic stay. If the moving party fails to meet its initial burden relief should be denied.
"The burden of proof on a motion to modify the automatic stay is a shifting one. To obtain relief from the automatic stay, the party seeking relief must first establish a prima facie case that "cause" exists for relief under § 362(d)(1). Once a prima facie case has been established, the burden shifts to the debtor to show that relief from the stay is unwarranted. If the movant fails to meet its initial burden to demonstrate cause, relief from the automatic stay should be denied." In re Plumberex Specialty Products, Inc. 311 B.R. 551, 557 (Bkrtcy.C.D.Cal.,2004) (internal citations and quotations omitted).
The moving party must establish a factual and legal right to the relief that it is seeking.
"A prima facie case requires the movant to establish "a factual and legal right to the relief that it seeks." In re Plumberex Specialty Products, Inc. , supra at FN 11.
In some cases the moving party will have to show that the debtor’s actions constitute a clear abuse of the bankruptcy process, in other words bad faith on the part of the debtor.
"The existence of good faith depends on an amalgam of factors and not upon a specific fact. The test is whether the debtor is attempting to unreasonably deter and harass creditors or attempting to effect a speedy, efficient reorganization on a feasible basis. Good faith is lacking only when the debtor's actions constitute a clear abuse of the bankruptcy process." In re Plumberex Specialty Products, Inc. , supra at 559.
Any party that is served with a motion for relief from the automatic stay should carefully review the motion and supporting documents to determine if the moving party has met its initial burden. Many times a party will file a motion for relief with very little if any, supporting facts to support their motion hoping to gain some leverage for possible settlement negotiations.
Attorneys or parties in California who wish to purchase a sample opposition to a motion for relief from the automatic stay in United States Bankruptcy Court can click below.
http://www.scribd.com/doc/97317992/Sample-Opposition-to-Motion-for-Relief-From-Stay
The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Visit his website at http://www.legaldocspro.net
If you would like to subscribe to his weekly legal newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm
It must be stressed that the failure to file and serve a timely opposition to a motion for relief from the automatic stay may be construed by the Court as an admission that the motion has merit and should be granted. Thus a party who wishes to oppose the motion for relief from the automatic stay should do everything possible to ensure that a timely opposition is served and filed.
The automatic stay prevents creditors from taking certain actions once a petition for relief under the Bankruptcy Code has been filed. Those actions include but are not limited to, commencing or continuing any legal actions or proceedings against the debtor in another Court. It also includes attempting to collect on any judgment against the debtor that was entered in another Court before the Bankruptcy case was filed.
11 U.S.C . 362a states in relevant part: "Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of–(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title..."
The party requesting relief from the automatic stay bears the burden of establishing a prima facie case that "cause" exists for relief from the automatic stay. If the moving party fails to meet its initial burden relief should be denied.
"The burden of proof on a motion to modify the automatic stay is a shifting one. To obtain relief from the automatic stay, the party seeking relief must first establish a prima facie case that "cause" exists for relief under § 362(d)(1). Once a prima facie case has been established, the burden shifts to the debtor to show that relief from the stay is unwarranted. If the movant fails to meet its initial burden to demonstrate cause, relief from the automatic stay should be denied." In re Plumberex Specialty Products, Inc. 311 B.R. 551, 557 (Bkrtcy.C.D.Cal.,2004) (internal citations and quotations omitted).
The moving party must establish a factual and legal right to the relief that it is seeking.
"A prima facie case requires the movant to establish "a factual and legal right to the relief that it seeks." In re Plumberex Specialty Products, Inc. , supra at FN 11.
In some cases the moving party will have to show that the debtor’s actions constitute a clear abuse of the bankruptcy process, in other words bad faith on the part of the debtor.
"The existence of good faith depends on an amalgam of factors and not upon a specific fact. The test is whether the debtor is attempting to unreasonably deter and harass creditors or attempting to effect a speedy, efficient reorganization on a feasible basis. Good faith is lacking only when the debtor's actions constitute a clear abuse of the bankruptcy process." In re Plumberex Specialty Products, Inc. , supra at 559.
Any party that is served with a motion for relief from the automatic stay should carefully review the motion and supporting documents to determine if the moving party has met its initial burden. Many times a party will file a motion for relief with very little if any, supporting facts to support their motion hoping to gain some leverage for possible settlement negotiations.
Attorneys or parties in California who wish to purchase a sample opposition to a motion for relief from the automatic stay in United States Bankruptcy Court can click below.
http://www.scribd.com/doc/97317992/Sample-Opposition-to-Motion-for-Relief-From-Stay
The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Visit his website at http://www.legaldocspro.net
If you would like to subscribe to his weekly legal newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm
Wednesday, November 7, 2012
Collecting a California judgment against a judgment debtor with several aliases
The topic of this blog post is a very useful method that can be used by a judgment creditor in California to collect a judgment against a judgment debtor who uses several aliases without having to file a motion to amend the judgment, and without notice or a hearing. However, it can only be used in certain specified situations which are detailed in the California Code of Civil Procedure. The method is known as an affidavit of identity.
Proper use of an affidavit of identity is critical to effective judgment recovery in California . I have collected on several California judgments with the use of an affidavit of identity, and have never had an application for an affidavit of identity rejected.
Some of the larger counties in California including Los Angeles and Orange counties, have a specific local form which is used as the application for an affidavit of identity, and in some cases, the order approving the application as well.
If the judgment creditor can prove to the Court that a judgment debtor(s) are known by additional names which were not listed on the judgment, they can request that the Court issue an abstract of judgment and/or a writ of execution listing the additional names, without notice or a hearing.
This avoids the time and expense of filing a motion to amend the judgment which would require giving advance notice to the judgment debtor, thus alerting them that the judgment creditor is actively seeking to collect on the unpaid judgment.
Note that this procedure CANNOT be used in other ways such as attempting to collect against someone who was not listed on the judgment, nor can it be used to collect against any corporations, partnerships, or any legal entities not separately named in the judgment in which the judgment debtor is a partner, shareholder, or member, other than the judgment debtor.
The relevant code section that authorizes the issuance of an abstract of judgment listing additional names is Code of Civil Procedure § 674 (c)(1) which states that,
"The abstract of judgment shall be certified in the name of the judgment debtor as listed on the judgment and may also include the additional name or names by which the judgment debtor is known as set forth in the affidavit of identity, as defined in Section 680.135, filed by the judgment creditor with the application for issuance of the abstract of judgment. Prior to the clerk of the court certifying an abstract of judgment containing any additional name or names by which the judgment debtor is known that are not listed on the judgment, the court shall approve the affidavit of identity. If the court determines, without a hearing or a notice, that the affidavit of identity states sufficient facts upon which the judgment creditor has identified the additional names of the judgment debtor, the court shall authorize the certification of the abstract of judgment with the additional name or names. (2) The remedies provided in Section 697.410 apply to a recorded abstract of a money judgment based upon an affidavit of identity that appears to create a judgment lien on real property of a person who is not the judgment debtor. "
Affidavit of identity is defined in Code of Civil Procedure § 680.135 which states that,
"Affidavit of Identity" means an affidavit or declaration executed by a judgment creditor, under penalty of perjury, that is filed with the clerk of the court in which the judgment is entered at the time the judgment creditor files for a writ of execution or an abstract of judgment. The affidavit of identity shall set forth the case name and number, the name of the judgment debtor stated in the judgment, the additional name or names by which the judgment debtor is known, and the facts upon which the judgment creditor has relied in obtaining the judgment debtor's additional name or names. The affidavit of identity shall not include the name or names of persons, including any corporations, partnerships, or any legal entities not separately named in the judgment in which the judgment debtor is a partner, shareholder, or member, other than the judgment debtor. " (Emphasis added.)
The relevant code section that authorizes the issuance of an abstract of judgment listing additional names is Code of Civil Procedure § 699.510 (c)(1) which states that,
"The writ of execution shall be issued in the name of the judgment debtor as listed on the judgment and shall include the additional name or names, and the type of legal entity, by which the judgment debtor is known, as set forth in the affidavit of identity, as defined in Section 680.135, filed by the judgment creditor with the application for issuance of the writ of execution. Prior to the clerk of the court issuing a writ of execution containing any additional name or names by which the judgment debtor is known that are not listed on the judgment, the court shall approve the affidavit of identity. If the court determines, without a hearing or a notice, that the affidavit of identity states sufficient facts upon which the judgment creditor has identified the additional names of the judgment debtor, the court shall authorize the issuance of the writ of execution with the additional name or names."
Proper use of the affidavit of identity can make the difference between collecting or not collecting on an unpaid judgment. Judgment recovery professionals in the State of California will certainly agree with the previous statement.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995 and has collected unpaid California judgments since 1992.
If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California legal newsletter by visiting the following link: http://www.legaldocspro.net/newsletter.htm
The author's website: http://www.legaldocspro.net
View numerous sample documents sold by the author: http://www.scribd.com/legaldocspro
Copyright 2012 Stan Burman. All rights reserved.
DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
Proper use of an affidavit of identity is critical to effective judgment recovery in California . I have collected on several California judgments with the use of an affidavit of identity, and have never had an application for an affidavit of identity rejected.
Some of the larger counties in California including Los Angeles and Orange counties, have a specific local form which is used as the application for an affidavit of identity, and in some cases, the order approving the application as well.
If the judgment creditor can prove to the Court that a judgment debtor(s) are known by additional names which were not listed on the judgment, they can request that the Court issue an abstract of judgment and/or a writ of execution listing the additional names, without notice or a hearing.
This avoids the time and expense of filing a motion to amend the judgment which would require giving advance notice to the judgment debtor, thus alerting them that the judgment creditor is actively seeking to collect on the unpaid judgment.
Note that this procedure CANNOT be used in other ways such as attempting to collect against someone who was not listed on the judgment, nor can it be used to collect against any corporations, partnerships, or any legal entities not separately named in the judgment in which the judgment debtor is a partner, shareholder, or member, other than the judgment debtor.
The relevant code section that authorizes the issuance of an abstract of judgment listing additional names is Code of Civil Procedure § 674 (c)(1) which states that,
"The abstract of judgment shall be certified in the name of the judgment debtor as listed on the judgment and may also include the additional name or names by which the judgment debtor is known as set forth in the affidavit of identity, as defined in Section 680.135, filed by the judgment creditor with the application for issuance of the abstract of judgment. Prior to the clerk of the court certifying an abstract of judgment containing any additional name or names by which the judgment debtor is known that are not listed on the judgment, the court shall approve the affidavit of identity. If the court determines, without a hearing or a notice, that the affidavit of identity states sufficient facts upon which the judgment creditor has identified the additional names of the judgment debtor, the court shall authorize the certification of the abstract of judgment with the additional name or names. (2) The remedies provided in Section 697.410 apply to a recorded abstract of a money judgment based upon an affidavit of identity that appears to create a judgment lien on real property of a person who is not the judgment debtor. "
Affidavit of identity is defined in Code of Civil Procedure § 680.135 which states that,
"Affidavit of Identity" means an affidavit or declaration executed by a judgment creditor, under penalty of perjury, that is filed with the clerk of the court in which the judgment is entered at the time the judgment creditor files for a writ of execution or an abstract of judgment. The affidavit of identity shall set forth the case name and number, the name of the judgment debtor stated in the judgment, the additional name or names by which the judgment debtor is known, and the facts upon which the judgment creditor has relied in obtaining the judgment debtor's additional name or names. The affidavit of identity shall not include the name or names of persons, including any corporations, partnerships, or any legal entities not separately named in the judgment in which the judgment debtor is a partner, shareholder, or member, other than the judgment debtor. " (Emphasis added.)
The relevant code section that authorizes the issuance of an abstract of judgment listing additional names is Code of Civil Procedure § 699.510 (c)(1) which states that,
"The writ of execution shall be issued in the name of the judgment debtor as listed on the judgment and shall include the additional name or names, and the type of legal entity, by which the judgment debtor is known, as set forth in the affidavit of identity, as defined in Section 680.135, filed by the judgment creditor with the application for issuance of the writ of execution. Prior to the clerk of the court issuing a writ of execution containing any additional name or names by which the judgment debtor is known that are not listed on the judgment, the court shall approve the affidavit of identity. If the court determines, without a hearing or a notice, that the affidavit of identity states sufficient facts upon which the judgment creditor has identified the additional names of the judgment debtor, the court shall authorize the issuance of the writ of execution with the additional name or names."
Proper use of the affidavit of identity can make the difference between collecting or not collecting on an unpaid judgment. Judgment recovery professionals in the State of California will certainly agree with the previous statement.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995 and has collected unpaid California judgments since 1992.
If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California legal newsletter by visiting the following link: http://www.legaldocspro.net/newsletter.htm
The author's website: http://www.legaldocspro.net
View numerous sample documents sold by the author: http://www.scribd.com/legaldocspro
Copyright 2012 Stan Burman. All rights reserved.
DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
Sunday, November 4, 2012
Discovery procedures which can be used in probate cases in California
The topic of this blog post is discovery procedures which can be used in California probates. Note that the term probates encompasses any proceeding commenced under the Probate Code in California and includes not only the probate of estates and trust proceedings, but also conservatorship and guardianships as well.
Parties in California probates may utilize the same discovery procedures as are used in California civil litigation unless the Probate Code states otherwise. And all issues of fact in a probate proceeding are tried using the same rules of practice that are used in civil litigation.
Probate Code § 1000 states that, "Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings and proceedings under Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice in, proceedings under this code. All issues of fact joined in probate proceedings shall be tried in conformity with the rules of practice in civil actions".
This means that parties to probates may use form and special interrogatories, requests for admission, truth of facts and genuineness of documents, and requests for production of documents in addition to depositions and the other discovery procedures commonly used in civil litigation in the State of California.
The importance of discovery in probates as with other litigation cannot be emphasized strongly enough. Correct use of discovery procedures can mean the difference between winning and losing for many probates. Failure to properly use the discovery procedures will result in many cases which could have been won at trial, or a reasonable settlement reached before trial, being lost instead.
The following discovery procedures can be very cost effective when used properly in probates
.
Form and special interrogatories are very useful as a party can request the other party to state all facts, identify all persons having knowledge of the facts, and all documents in support of the facts which, support the other party’s requests made in that party’s petition, objection or other response.
Requests for admission can also be used to request the other party admit or deny certain pertinent facts, and/or admit that certain attached documents are genuine.
And requests for production of documents are also very useful in obtaining copies of correspondence, bank and financial records, and other documents that are pertinent to that particular probate case.
Other discovery procedures can also be used but the ones mentioned above are particularly cost effective.
The right use of discovery procedures in California probate cases is a vital tool in (1) evaluating the strengths and weaknesses of each party’s case; (2) preparing for trial, and (3) facilitating settlement negotiations.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Visit his website at http://www.legaldocspro.net
To view numerous sample documents for California litigation sold by the author click here: http://www.scribd.com/legaldocspro
If you would like to subscribe to his newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm
Parties in California probates may utilize the same discovery procedures as are used in California civil litigation unless the Probate Code states otherwise. And all issues of fact in a probate proceeding are tried using the same rules of practice that are used in civil litigation.
Probate Code § 1000 states that, "Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings and proceedings under Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice in, proceedings under this code. All issues of fact joined in probate proceedings shall be tried in conformity with the rules of practice in civil actions".
This means that parties to probates may use form and special interrogatories, requests for admission, truth of facts and genuineness of documents, and requests for production of documents in addition to depositions and the other discovery procedures commonly used in civil litigation in the State of California.
The importance of discovery in probates as with other litigation cannot be emphasized strongly enough. Correct use of discovery procedures can mean the difference between winning and losing for many probates. Failure to properly use the discovery procedures will result in many cases which could have been won at trial, or a reasonable settlement reached before trial, being lost instead.
The following discovery procedures can be very cost effective when used properly in probates
.
Form and special interrogatories are very useful as a party can request the other party to state all facts, identify all persons having knowledge of the facts, and all documents in support of the facts which, support the other party’s requests made in that party’s petition, objection or other response.
Requests for admission can also be used to request the other party admit or deny certain pertinent facts, and/or admit that certain attached documents are genuine.
And requests for production of documents are also very useful in obtaining copies of correspondence, bank and financial records, and other documents that are pertinent to that particular probate case.
Other discovery procedures can also be used but the ones mentioned above are particularly cost effective.
The right use of discovery procedures in California probate cases is a vital tool in (1) evaluating the strengths and weaknesses of each party’s case; (2) preparing for trial, and (3) facilitating settlement negotiations.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Visit his website at http://www.legaldocspro.net
To view numerous sample documents for California litigation sold by the author click here: http://www.scribd.com/legaldocspro
If you would like to subscribe to his newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm
Sunday, October 28, 2012
Thursday, October 25, 2012
Opposing a forum non conveniens action in the State of California
Opposing a forum non conveniens action also known as a
motion to dismiss on the grounds of inconvenient forum, in the State of California is the topic of this blog post.
The motion is made on the grounds that the forum state, namely California, is an inconvenient forum in which to have the case heard. The good news for a party opposing a motion to dismiss on the grounds of inconvenient forum in the State of California is that the moving Defendant(s) have the burden of proof. The entire motion should be reviewed along with all supporting attachments.
The author recently drafted an opposition to a motion in which the moving defendants provided NO sworn declarations with the Motion.
In a forum non conveniens action, the defendant has the burden of proof. Century Indem. Co. v. Bank of Am., (1997) 58 Cal. App. 4th 408, 411. (Citing text.)
And the United States Supreme Court has stated that unless the balance weighs strongly in favor of the defendants, the plaintiff's choice of forum should rarely be disturbed. See Piper Aircraft v. Reyno, (1981) 454 U.S. 235, 255.
In California the doctrine is typically applied where none of the parties is a California resident, and where the cause of action arose outside of the forum state. The doctrine is typically applied to litigation where all of the parties are out-of-state residents and where the cause of action arose outside the forum state. Appalachian Ins. Co. v. Superior Court, (1984) 162 Cal. App. 3d 427, 434. (Internal citations and quotations omitted.) The moving party must also establish that a suitable alternative forum exists.
Courts in California have utilized a two prong approach in motions to dismiss on the basis of forum non conveniens: 1) Defendants must establish that a suitable alternative forum exists and 2) The Court must balance the private interests of the parties and the public interest in maintaining an action in California. Stangvik v. Shiley, Inc., (1991) 54 Cal.3d 744, 751.
Code of Civil Procedure section 410.40 states that “Any person may maintain an action or proceeding in a court of this state against a foreign corporation or nonresident person where the action or proceeding arises out of or relates to any contract, agreement, or undertaking for which a choice of California law has been made in whole or in part by the parties thereto and which (a) is a contract, agreement, or undertaking, contingent or otherwise, relating to a transaction involving in the aggregate not less than one million dollars ($1,000,000), and (b) contains a provision or provisions under which the foreign corporation or nonresident agrees to submit to the jurisdiction of the courts of this state. This section applies to contracts, agreements, and undertakings entered into before, on, or after its effective date; it shall be fully retroactive. Contracts, agreements, and undertakings selecting California law entered into before the effective date of this section shall be valid, enforceable, and effective as if this section had been in effect on the date they were entered into; and actions and proceedings commencing in a court of this state before the effective date of this section may be maintained as if this section were in effect on the date they were commenced.“
This means that if an agreement signed by both parties, even if both parties are nonresident parties, includes what is known as a mandatory forum selection clause, the Court will most likely deny the motion unless the moving party can show that applying the clause would be unfair or unreasonable. The fact that the moving party might be inconvenienced or suffer additional expenses is not sufficient.
“Although not even a mandatory forum selection clause can completely eliminate a court's discretion to make appropriate rulings regarding choice of forum, the modern trend is to enforce mandatory forum selection clauses unless they are unfair or unreasonable. If there is no mandatory forum selection clause, a forum non conveniens motion `requires the weighing of a gamut of factors of public and private convenience. However if there is a mandatory forum selection clause, the test is simply whether application of the clause is unfair or unreasonable, and the clause is usually given effect. Claims that the previously chosen forum is unfair or inconvenient are generally rejected. A court will usually honor a mandatory forum selection clause without extensive analysis of factors relating to convenience. Mere inconvenience or additional expense is not the test of unreasonableness of a mandatory forum selection clause. “ Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1294. (Internal citations and quotations omitted.)
A party wishing to oppose a motion to dismiss on the grounds of inconvenient forum in California should definitely take the factors discussed in this blog post into account.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.
Visit his website at http://www.legaldocspro.com
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The motion is made on the grounds that the forum state, namely California, is an inconvenient forum in which to have the case heard. The good news for a party opposing a motion to dismiss on the grounds of inconvenient forum in the State of California is that the moving Defendant(s) have the burden of proof. The entire motion should be reviewed along with all supporting attachments.
The author recently drafted an opposition to a motion in which the moving defendants provided NO sworn declarations with the Motion.
In a forum non conveniens action, the defendant has the burden of proof. Century Indem. Co. v. Bank of Am., (1997) 58 Cal. App. 4th 408, 411. (Citing text.)
And the United States Supreme Court has stated that unless the balance weighs strongly in favor of the defendants, the plaintiff's choice of forum should rarely be disturbed. See Piper Aircraft v. Reyno, (1981) 454 U.S. 235, 255.
In California the doctrine is typically applied where none of the parties is a California resident, and where the cause of action arose outside of the forum state. The doctrine is typically applied to litigation where all of the parties are out-of-state residents and where the cause of action arose outside the forum state. Appalachian Ins. Co. v. Superior Court, (1984) 162 Cal. App. 3d 427, 434. (Internal citations and quotations omitted.) The moving party must also establish that a suitable alternative forum exists.
Courts in California have utilized a two prong approach in motions to dismiss on the basis of forum non conveniens: 1) Defendants must establish that a suitable alternative forum exists and 2) The Court must balance the private interests of the parties and the public interest in maintaining an action in California. Stangvik v. Shiley, Inc., (1991) 54 Cal.3d 744, 751.
Code of Civil Procedure section 410.40 states that “Any person may maintain an action or proceeding in a court of this state against a foreign corporation or nonresident person where the action or proceeding arises out of or relates to any contract, agreement, or undertaking for which a choice of California law has been made in whole or in part by the parties thereto and which (a) is a contract, agreement, or undertaking, contingent or otherwise, relating to a transaction involving in the aggregate not less than one million dollars ($1,000,000), and (b) contains a provision or provisions under which the foreign corporation or nonresident agrees to submit to the jurisdiction of the courts of this state. This section applies to contracts, agreements, and undertakings entered into before, on, or after its effective date; it shall be fully retroactive. Contracts, agreements, and undertakings selecting California law entered into before the effective date of this section shall be valid, enforceable, and effective as if this section had been in effect on the date they were entered into; and actions and proceedings commencing in a court of this state before the effective date of this section may be maintained as if this section were in effect on the date they were commenced.“
This means that if an agreement signed by both parties, even if both parties are nonresident parties, includes what is known as a mandatory forum selection clause, the Court will most likely deny the motion unless the moving party can show that applying the clause would be unfair or unreasonable. The fact that the moving party might be inconvenienced or suffer additional expenses is not sufficient.
“Although not even a mandatory forum selection clause can completely eliminate a court's discretion to make appropriate rulings regarding choice of forum, the modern trend is to enforce mandatory forum selection clauses unless they are unfair or unreasonable. If there is no mandatory forum selection clause, a forum non conveniens motion `requires the weighing of a gamut of factors of public and private convenience. However if there is a mandatory forum selection clause, the test is simply whether application of the clause is unfair or unreasonable, and the clause is usually given effect. Claims that the previously chosen forum is unfair or inconvenient are generally rejected. A court will usually honor a mandatory forum selection clause without extensive analysis of factors relating to convenience. Mere inconvenience or additional expense is not the test of unreasonableness of a mandatory forum selection clause. “ Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1294. (Internal citations and quotations omitted.)
A party wishing to oppose a motion to dismiss on the grounds of inconvenient forum in California should definitely take the factors discussed in this blog post into account.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.
If you are in need of assistance with any California or
Federal litigation matters, Mr. Burman is available on a freelance basis. Mr.
Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.
He accepts payments through PayPal which means that you can pay using most
credit or debit cards.
Visit his website at http://www.legaldocspro.com
If you would like to subscribe to his newsletter click on the following link:
Subscribe to FREE weekly newsletter
Sunday, August 5, 2012
Opposing an application for a writ of attachment in California
Filing an opposition to an application for a right to attach order in California is the topic of this blog post.
There are numerous grounds available for opposing such an
application which will be discussed below.
For example No right to attach order can be issued unless
the underlying debt or obligation is from a business transaction or loan. In
other words attachment cannot be requested if the underlying debt or obligation
is for personal, family or household purposes.
Once the right to attach order is issued a writ of
attachment is then issued by the clerk.
At least sixteen (16) Court days before the hearing the
defendant must be served with (a) A copy of the summons and complaint, (b) A
notice of application and hearing, (c) A copy of the application and of any
affidavit in support of the application. See Code of Civil Procedure § 484.040.
Note that if a defendant does not serve and file an
opposition within five (5) Court days before the hearing they will NOT be
permitted to oppose the issuance of the right to attach order. See Code of
Civil Procedure § 484.060(a).
Therefore, it is critical that an opposition be filed as
soon as possible. The defendant has the right to request a brief continuance to
enable them to oppose the issuance of the right to attach order. See Code of
Civil Procedure § 484.080(b). This means a defendant who needs more time to
prepare an effective opposition may include a request for a brief continuance
in their opposing papers.
Because the statutes relating to attachment law are purely
the creation of the legislature they are subject to strict construction. In
other words attachment is disfavored in the law. Plaintiff must prove each and
every element or their request will be denied.
The California Courts of Appeal have stated that it is well
settled that the attachment law statutes in California are subject to strict
construction.
Code of Civil Procedure § 482.040 states in pertinent part
that, “The facts stated in each affidavit filed pursuant to this title shall be
set forth with particularity.” The author has seen numerous applications for a
right to attach order where the facts stated in the affidavit were not stated
with particularity so any party opposing the issuance of an order should
carefully review everything submitted in support of the application, including
any exhibits attached to declarations. Code of Civil Procedure § 481.190 states
that, “A claim has probable validity where it is more likely than not that the
plaintiff will obtain a judgment against the defendant on that claim”.
Code of Civil Procedure § 484.030 states that, “The
application shall be supported by an affidavit showing that the plaintiff on
the facts presented would be entitled to a judgment on the claim upon which the
attachment is based.”
And the amount of the attachment must be based on easily
measurable damages whose basis is reasonable and certain.
The Court has great discretion in deciding whether a right
to attach order should issue. The trial court is not required to accept as true
the sworn testimony of any witness or undisputed affidavit testimony. It may
make contrary findings based on inferences drawn from other evidence. Bank of
America v. Salinas Nissan, Inc. (1989) 207 Cal.App. 3d 260, 273.
And if all, or a portion of, the amount being sought to be
attached is based on future damages the plaintiff must show that they have
taken reasonable steps to mitigate those damages as any plaintiff who suffers
damages as a result of a breach of contract or tort has a duty to take
reasonable steps to mitigate those damages. If they fail to do so they will not
be able to recover for any damages which could have been avoided.
Attorneys or parties
in California that would like to view a portion of an 11 page opposition to an
application for right to attach order containing brief instructions, a
memorandum of points and authorities with citations to case law and statutory
authority and proof of service by mail sold by the author can see below.
If you are in need of assistance with any California or
Federal litigation matters, Mr. Burman is available on a freelance basis. Mr.
Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.
He accepts payments through PayPal which means that you can pay using most
credit or debit cards.
Attorneys or parties who would like to view portions of over 300 sample legal documents for California and Federal litigation sold by the author of this blog post can use the link shown below.
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DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
Saturday, July 14, 2012
Demurring to a complaint in California for lack of standing to sue
This blog post will discuss filing a general demurrer to a complaint in California based on plaintiff's lack of standing to sue. Standing to sue means the right to obtain relief in Court. In order to have standing to sue, plaintiff must be the "real party in interest" with respect to the claims sued upon.
A general demurrer is made on one of two grounds, failure to state facts sufficient to constitute a cause of action, and the Court lacks subject matter jurisdiction. The grounds for a general demurrer are never waived. See Code of Civil Procedure § 430.80.
Code of Civil Procedure § 430.10 states, in pertinent part: "The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in section 430.30, to the pleading on any one or more of the following grounds...(e) the pleading does not state facts sufficient to constitute a cause of action.
The failure of the pleading to state a cause of action results from the fact that the complaint appears deficient on the face of the pleading or from judicially noticed matter. Hall vs. Chamberlin (1948) 31 Cal.2d 673, 679-680.
Section 425 of Code of Civil Procedure states that a complaint must contain "a statement of the facts constituting the cause of action in ordinary and concise language". A complaint must contain facts which are sufficiently clear and specific to inform both the Court and parties of the nature of the claim and the factual basis of the claim. Code of Civil Procedure §430.10.
Except as otherwise provided by statute, "every action must be prosecuted in the name of the real party in interest . . ." Code of Civil Procedure § 367; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004.
Generally, the real party in interest is the person who has the right to sue under the substantive law. It is the person who owns or holds title to the claim or property involved, as opposed to others who may be interested or benefitted by the litigation. Gantman v. United Pac. Ins. Co. (1991) 232 Cal.App.3d 1560, 1566.
The real party in interest requirement goes to the existence of a cause of action; i.e., whether plaintiff has a right to relief. Lack of standing is not waived by failure to object. Pillsbury v. Karmgard (1994) 22 Cal.App.4th 743, 757-758.
The purpose of the real party in interest requirement is to assure that any judgment rendered will bar the owner of the claim sued upon from relitigating. "It is to save a defendant, against whom a judgment may be obtained, from further harassment or vexation at the hands of some other claimant to the same demand." Giselman v. Starr (1895) 106 Cal. 651, 657; see also Cloud v. Northrop Grumman Corp. supra at 1003.
For instance, a plaintiff who unintentionally failed to schedule her prepetition claim for wrongful termination as an asset in her bankruptcy action lacked standing to sue. However, the defect could be cured by substituting the bankruptcy trustee as the real party in interest or obtaining the trustee's abandonment of the claim. Judicial estoppel does not arise absent a finding of bad faith. Cloud v. Northrop Grumman Corp., supra at 1002-1003; see also Kelsey v. Waste Management of Alameda County (1999) 76 Cal.App.4th 590, 599.
When a party lacks standing to sue, the action must be dismissed, unless the complaint can be amended by substituting a party who has standing. Cloud v. Northrop Grumman Corp. supra at 1004-1011.
If a plaintiff clearly does not have standing to sue than a general demurrer on that basis should be filed.
Attorneys or parties in California who wish to purchase a sample demurrer to a complaint for California based on lack of standing can click below.
http://www.scribd.com/doc/97255471/Sample-Demurrer-to-Complaint-for-Lack-of-Standing-in-California
The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
Visit his website at http://www.legaldocspro.com
If you would like to subscribe to his weekly legal newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm
A general demurrer is made on one of two grounds, failure to state facts sufficient to constitute a cause of action, and the Court lacks subject matter jurisdiction. The grounds for a general demurrer are never waived. See Code of Civil Procedure § 430.80.
Code of Civil Procedure § 430.10 states, in pertinent part: "The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in section 430.30, to the pleading on any one or more of the following grounds...(e) the pleading does not state facts sufficient to constitute a cause of action.
The failure of the pleading to state a cause of action results from the fact that the complaint appears deficient on the face of the pleading or from judicially noticed matter. Hall vs. Chamberlin (1948) 31 Cal.2d 673, 679-680.
Section 425 of Code of Civil Procedure states that a complaint must contain "a statement of the facts constituting the cause of action in ordinary and concise language". A complaint must contain facts which are sufficiently clear and specific to inform both the Court and parties of the nature of the claim and the factual basis of the claim. Code of Civil Procedure §430.10.
Except as otherwise provided by statute, "every action must be prosecuted in the name of the real party in interest . . ." Code of Civil Procedure § 367; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004.
Generally, the real party in interest is the person who has the right to sue under the substantive law. It is the person who owns or holds title to the claim or property involved, as opposed to others who may be interested or benefitted by the litigation. Gantman v. United Pac. Ins. Co. (1991) 232 Cal.App.3d 1560, 1566.
The real party in interest requirement goes to the existence of a cause of action; i.e., whether plaintiff has a right to relief. Lack of standing is not waived by failure to object. Pillsbury v. Karmgard (1994) 22 Cal.App.4th 743, 757-758.
The purpose of the real party in interest requirement is to assure that any judgment rendered will bar the owner of the claim sued upon from relitigating. "It is to save a defendant, against whom a judgment may be obtained, from further harassment or vexation at the hands of some other claimant to the same demand." Giselman v. Starr (1895) 106 Cal. 651, 657; see also Cloud v. Northrop Grumman Corp. supra at 1003.
For instance, a plaintiff who unintentionally failed to schedule her prepetition claim for wrongful termination as an asset in her bankruptcy action lacked standing to sue. However, the defect could be cured by substituting the bankruptcy trustee as the real party in interest or obtaining the trustee's abandonment of the claim. Judicial estoppel does not arise absent a finding of bad faith. Cloud v. Northrop Grumman Corp., supra at 1002-1003; see also Kelsey v. Waste Management of Alameda County (1999) 76 Cal.App.4th 590, 599.
When a party lacks standing to sue, the action must be dismissed, unless the complaint can be amended by substituting a party who has standing. Cloud v. Northrop Grumman Corp. supra at 1004-1011.
If a plaintiff clearly does not have standing to sue than a general demurrer on that basis should be filed.
Attorneys or parties in California who wish to purchase a sample demurrer to a complaint for California based on lack of standing can click below.
http://www.scribd.com/doc/97255471/Sample-Demurrer-to-Complaint-for-Lack-of-Standing-in-California
The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
If you are in need of assistance with any California or
Federal litigation matters, Mr. Burman is available on a freelance basis. Mr.
Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.
He accepts payments through PayPal which means that you can pay using most
credit or debit cards.
Visit his website at http://www.legaldocspro.com
If you would like to subscribe to his weekly legal newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm
Tuesday, June 19, 2012
Responding to a petition for dissolution of marriage (divorce) in California
Responding to a petition for dissolution of marriage (divorce) in California is the topic of this blog post. The response must be on the Judicial Council Form FL-120 Response-Marriage (Response) which is a mandatory form. If there are minor children under the age of 18 years old of the marriage or relationship involved a Declaration under Uniform Child Custody Jurisdiction and Enforcement Act (Declaration) Judicial Council Form FL-105 must be used as this is also a mandatory form.
A Response should be filed in any case where the two parties have not already discussed an amicable divorce settlement. The filing of the Response will avoid any default being entered against the responding party and will ensure that they are on equal legal footing with the petitioner. The Court will charge a filing fee when the Response is filed, in most counties the filing fee is currently $395.00 unless the responding party can qualify for a fee waiver. The responding party should call their local Court to verify the correct filing fee for their particular county.
In most cases the original Response, and Declaration if there are minor children, must be filed with the Court within thirty (30) calendar days from the date that the respondent is personally served. A copy of the Response, and Declaration if needed, must be served by mail on the petitioner, or their attorney if they have one, and a proof of service must be filed along with the original Response, and Declaration.
The appropriate boxes must be checked on the Response. As each case is different, the party responding should take care to ensure that the Response is filled out correctly. The Declaration must also be correctly filled out.
If the responding party anticipates that the reaching of an amicable settlement is not feasible at the time that they file their response, it may make sense to consider propounding discovery to the petitioner. Discovery can be very helpful to each party in evaluating the strengths and weaknesses of their case, facilitating a possible settlement, and in preparing for trial.
Parties in California divorce proceedings can utilize the same discovery procedures as are used in California civil litigation as the same rules and procedures are applicable unless another statute or rule has been adopted by the California Judicial Council. See Family Code § 210.
Form Interrogatories for divorce and other family law cases are available using Judicial Council Form FL-145. This form is extremely useful as the questions are specifically tailored to the issues involved in a typical case. For instance a party may ask the other party to provide the last three (3) years tax returns, and also to complete a Schedule of Assets and Debts, Judicial Council Form FL-142, if that form is attached to the Form Interrogatories and the appropriate box is checked. The other party has thirty five (35) calendar days to respond if the Form Interrogatories are served by first class mail.
In the opinion of the author, the Form Interrogatories should be utilized and served concurrently with the Response even in a simple case as they are relatively easy and can be completed fairly quickly. Proper use of the Form Interrogatories is an easy and quick way to obtain the most information with a minimum of effort.
Special Interrogatories are also extremely useful as a party can request the other party to state all facts, identify all persons having personal knowledge of the facts, and all documents in support of the facts, which support the other party’s request for attorney’s fees, sole custody, spousal support and other requests or contentions made in that party’s Petition or Response.
The requests for production and inspection of documents and other tangible things can be useful in obtaining bank and financial records and other documents that are pertinent to the issues involved in the divorce proceeding.
And last, but certainly not least, requests for admission can be used to request the other party to admit or deny certain pertinent facts, and/or admit that certain attached documents are genuine.
In a more complex case involving a long term marriage (over 10 years), minor children, and numerous community property assets and obligations, all of the discovery requests mentioned in this blog post should be at least considered, if not actually used.
The most important thing to keep in mind is the fact that a party served with a petition for divorce should file a timely Response or they risk a default being entered against them. As previously mentioned, the filing of a timely Response will protect the interests of the responding party and prevent any default being entered against the responding party. And it does not prevent the two parties from reaching an amicable settlement at a later date.
The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Visit his website at http://www.legaldocspro.net/
If you would like to subscribe to his newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm
A Response should be filed in any case where the two parties have not already discussed an amicable divorce settlement. The filing of the Response will avoid any default being entered against the responding party and will ensure that they are on equal legal footing with the petitioner. The Court will charge a filing fee when the Response is filed, in most counties the filing fee is currently $395.00 unless the responding party can qualify for a fee waiver. The responding party should call their local Court to verify the correct filing fee for their particular county.
In most cases the original Response, and Declaration if there are minor children, must be filed with the Court within thirty (30) calendar days from the date that the respondent is personally served. A copy of the Response, and Declaration if needed, must be served by mail on the petitioner, or their attorney if they have one, and a proof of service must be filed along with the original Response, and Declaration.
The appropriate boxes must be checked on the Response. As each case is different, the party responding should take care to ensure that the Response is filled out correctly. The Declaration must also be correctly filled out.
If the responding party anticipates that the reaching of an amicable settlement is not feasible at the time that they file their response, it may make sense to consider propounding discovery to the petitioner. Discovery can be very helpful to each party in evaluating the strengths and weaknesses of their case, facilitating a possible settlement, and in preparing for trial.
Parties in California divorce proceedings can utilize the same discovery procedures as are used in California civil litigation as the same rules and procedures are applicable unless another statute or rule has been adopted by the California Judicial Council. See Family Code § 210.
Form Interrogatories for divorce and other family law cases are available using Judicial Council Form FL-145. This form is extremely useful as the questions are specifically tailored to the issues involved in a typical case. For instance a party may ask the other party to provide the last three (3) years tax returns, and also to complete a Schedule of Assets and Debts, Judicial Council Form FL-142, if that form is attached to the Form Interrogatories and the appropriate box is checked. The other party has thirty five (35) calendar days to respond if the Form Interrogatories are served by first class mail.
In the opinion of the author, the Form Interrogatories should be utilized and served concurrently with the Response even in a simple case as they are relatively easy and can be completed fairly quickly. Proper use of the Form Interrogatories is an easy and quick way to obtain the most information with a minimum of effort.
Special Interrogatories are also extremely useful as a party can request the other party to state all facts, identify all persons having personal knowledge of the facts, and all documents in support of the facts, which support the other party’s request for attorney’s fees, sole custody, spousal support and other requests or contentions made in that party’s Petition or Response.
The requests for production and inspection of documents and other tangible things can be useful in obtaining bank and financial records and other documents that are pertinent to the issues involved in the divorce proceeding.
And last, but certainly not least, requests for admission can be used to request the other party to admit or deny certain pertinent facts, and/or admit that certain attached documents are genuine.
In a more complex case involving a long term marriage (over 10 years), minor children, and numerous community property assets and obligations, all of the discovery requests mentioned in this blog post should be at least considered, if not actually used.
The most important thing to keep in mind is the fact that a party served with a petition for divorce should file a timely Response or they risk a default being entered against them. As previously mentioned, the filing of a timely Response will protect the interests of the responding party and prevent any default being entered against the responding party. And it does not prevent the two parties from reaching an amicable settlement at a later date.
The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Visit his website at http://www.legaldocspro.net/
If you would like to subscribe to his newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm
Thursday, May 3, 2012
Filing a demurrer to a fraud complaint in California
Filing a demurrer to a fraud complaint in California is the topic of this blog post. It will mainly focus on a general demurrer to a fraud cause of action, in particular fraud by intentional misrepresentation, and to some extent fraud by a false promise, also known as "promissory fraud."
A general demurrer is made on one of two grounds, failure to state facts sufficient to constitute a cause of action, and the Court lacks subject matter jurisdiction. The grounds for a general demurrer are never waived. See Code of Civil Procedure § 430.80.
Code of Civil Procedure § 430.10 states in pertinent part that, "The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in section 430.30, to the pleading on any one or more of the following grounds...(e) the pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, "uncertain" includes ambiguous and unintelligible. (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct."
A demurrer can only be used to challenge defects that appear on the face of the complaint, or from matters that can be made the subject of judicial notice. Blank v. Kirwan (1985) 39 Cal.3d 311, 318.
A California Court of Appeal has ruled that if a defendant negates any essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action. See Cantu v. Resolution Trust Corp.(1992) 4 Cal.App. 4th 857, 880.
"A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Every element must be specifically pleaded." Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.
Fraud must be pleaded specifically; general and conclusory allegations do not suffice. This particularity requirement necessitates pleading facts that show how, when, where, to whom, and by what means the representations were tendered. Charpentier v. Los Angeles Rams Football Co., Inc. (1999) 75 Cal. App.4th 301, 312. (citing text).
And in California, pursuant to Code of Civil Procedure § 338(d) there is a three-year statute of limitations for an action for relief on the ground of fraud or mistake. The cause of action is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.
An action based on fraud may be brought more than three years after the fraud occurred if the plaintiff shows not only that he did not discover the facts but he could not with reasonable diligence have discovered them within that time. The complaint must set forth specifically (1) the facts of the time and manner of discovery; and (2) the circumstances which excuse the failure to have made an earlier discovery. Olson v. County of Sacramento (1969) 274 Cal.App 2d 316, 327 (internal citations omitted).
Clearly then anyone who has been served with a complaint that contains a fraud cause of action needs to carefully examine it for any defects, such as lack of specific allegations such as dates, what was said, etc.
This author has worked in civil litigation since 1995, and in that time has noticed that about one-half of the fraud causes of action he has reviewed were defective in some manner, mostly due to lack of specificity as to dates, what was said, etc. Also many times a fraud cause of action will be for an alleged false promise, many attorneys will attempt to "convert" a simple breach of contract action and add a fraud cause of action based on a false promise. Most of the time they are very sloppy at it, on numerous occasions the author has noticed that the damages for the breach of contract action and the fraud cause of action are exactly the same amount! That is a dead giveaway that the cause of action is demurrable.
"Whatever form it takes, injury or damage from fraud must not only be distinctly alleged but its causal connection with reliance on representations must be shown.... In order to recover for fraud, as in any other tort, the plaintiff must plead and prove the detriment proximately caused by the defendant's tortious conduct. Deception without resulting loss is not actionable fraud. Whatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representations must be shown." Service by Medallion, Inc., id., at 1818.
Thus in order to recover damages for fraud based on a false promise the plaintiff must show specific damages that resulted from the false promise, and show a causal connection between the false promise and the damages.
The issue of whether or not to file a general demurrer to a fraud cause of action should only be made after careful review of the entire complaint, and legal research on the elements required to state cause of action for fraud. If the complaint does not allege all of the required elements for a fraud cause of action then a general demurrer should be filed.
Attorneys or parties in the State of California who wish to view a portion of a sample demurrer to a fraud complaint for sale by the author please see below.
http://www.scribd.com/doc/47705170/Sample-Demurrer-to-Fraud-Complaint-for-California
The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
Visit his website at http://www.legaldocspro.com
Subscribe to his weekly newsletter with legal tips and tricks for California.
http://www.legaldocspro.net/newsletter.htm
A general demurrer is made on one of two grounds, failure to state facts sufficient to constitute a cause of action, and the Court lacks subject matter jurisdiction. The grounds for a general demurrer are never waived. See Code of Civil Procedure § 430.80.
Code of Civil Procedure § 430.10 states in pertinent part that, "The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in section 430.30, to the pleading on any one or more of the following grounds...(e) the pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, "uncertain" includes ambiguous and unintelligible. (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct."
A demurrer can only be used to challenge defects that appear on the face of the complaint, or from matters that can be made the subject of judicial notice. Blank v. Kirwan (1985) 39 Cal.3d 311, 318.
A California Court of Appeal has ruled that if a defendant negates any essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action. See Cantu v. Resolution Trust Corp.(1992) 4 Cal.App. 4th 857, 880.
"A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Every element must be specifically pleaded." Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.
Fraud must be pleaded specifically; general and conclusory allegations do not suffice. This particularity requirement necessitates pleading facts that show how, when, where, to whom, and by what means the representations were tendered. Charpentier v. Los Angeles Rams Football Co., Inc. (1999) 75 Cal. App.4th 301, 312. (citing text).
And in California, pursuant to Code of Civil Procedure § 338(d) there is a three-year statute of limitations for an action for relief on the ground of fraud or mistake. The cause of action is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.
An action based on fraud may be brought more than three years after the fraud occurred if the plaintiff shows not only that he did not discover the facts but he could not with reasonable diligence have discovered them within that time. The complaint must set forth specifically (1) the facts of the time and manner of discovery; and (2) the circumstances which excuse the failure to have made an earlier discovery. Olson v. County of Sacramento (1969) 274 Cal.App 2d 316, 327 (internal citations omitted).
Clearly then anyone who has been served with a complaint that contains a fraud cause of action needs to carefully examine it for any defects, such as lack of specific allegations such as dates, what was said, etc.
This author has worked in civil litigation since 1995, and in that time has noticed that about one-half of the fraud causes of action he has reviewed were defective in some manner, mostly due to lack of specificity as to dates, what was said, etc. Also many times a fraud cause of action will be for an alleged false promise, many attorneys will attempt to "convert" a simple breach of contract action and add a fraud cause of action based on a false promise. Most of the time they are very sloppy at it, on numerous occasions the author has noticed that the damages for the breach of contract action and the fraud cause of action are exactly the same amount! That is a dead giveaway that the cause of action is demurrable.
"Whatever form it takes, injury or damage from fraud must not only be distinctly alleged but its causal connection with reliance on representations must be shown.... In order to recover for fraud, as in any other tort, the plaintiff must plead and prove the detriment proximately caused by the defendant's tortious conduct. Deception without resulting loss is not actionable fraud. Whatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representations must be shown." Service by Medallion, Inc., id., at 1818.
Thus in order to recover damages for fraud based on a false promise the plaintiff must show specific damages that resulted from the false promise, and show a causal connection between the false promise and the damages.
The issue of whether or not to file a general demurrer to a fraud cause of action should only be made after careful review of the entire complaint, and legal research on the elements required to state cause of action for fraud. If the complaint does not allege all of the required elements for a fraud cause of action then a general demurrer should be filed.
Attorneys or parties in the State of California who wish to view a portion of a sample demurrer to a fraud complaint for sale by the author please see below.
http://www.scribd.com/doc/47705170/Sample-Demurrer-to-Fraud-Complaint-for-California
The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
If you are in need of assistance with any California or
Federal litigation matters, Mr. Burman is available on a freelance basis. Mr.
Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.
He accepts payments through PayPal which means that you can pay using most
credit or debit cards.
Visit his website at http://www.legaldocspro.com
Subscribe to his weekly newsletter with legal tips and tricks for California.
http://www.legaldocspro.net/newsletter.htm
Thursday, April 5, 2012
Requesting leave of Court to file a compulsory cross-complaint in California
Requesting leave of court to file a compulsory cross-complaint in California is the topic of this blog post. Many times during the course of litigation a party may discovery facts that support affirmative claims for relief which evolve from "a series of acts or occurrences logically interrelated" and thus are related causes of action subject to forfeiture if not pleaded in the action.
Code of Civil Procedure § 426.50 states that, "A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action".
Note that section 426.50 also allows a party to request leave of court to amend their cross-complaint to add additional causes of action at any time during the course of the action.
A California Court of Appeal has ruled that a motion for leave of court to file a cross-complaint at any time during the course of an action must be granted unless bad faith of the moving party is shown. See Silver Organizations Ltd. v. Frank (1990) 217 Cal.App 3d 94, 98-99 which stated that, "The legislative mandate is clear. A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court. A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result. Factors such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith."
The Court also ruled in Silver Organizations Ltd. v. Frank, at 100, that "Our review of the entire record fails to reveal, directly or inferentially, any substantial evidence of bad faith by the appellants. Looking at the entire period between the filing of the complaint and the denial of the section 426.50 motion, a time frame of less than six months, we find nothing in appellants' words or conduct remotely suggesting dishonest purpose, moral obliquity, sinister motive, furtive design or ill will".
In Silver Organizations Ltd. v. Frank the Court of Appeal ruled that a time period of less than six months between the filing of a complaint and a motion to file a compulsory cross-complaint did not constitute bad faith
While other cases have ruled that a lengthy delay of over six months may constitute bad faith, the decision in Silver Organizations Ltd. v. Frank has not been disapproved or otherwise disagreed with in any other published case in the State of California as of the date of this blog post.
Therefore it is imperative that a party file their motion within six months or less to avoid the possibility of the court denying their motion.
Attorneys or parties in California who would like to view a portion of a sample motion for leave of court to file a compulsory cross-complaint can use the link shown below.
http://www.scribd.com/doc/55161623/Sample-Motion-for-Leave-to-File-Cross-Complaint-in-California
The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
Visit his website at http://www.legaldocspro.com
Subscribe to his weekly newsletter with legal tips and tricks for California.
http://www.legaldocspro.net/newsletter.htm
Code of Civil Procedure § 426.50 states that, "A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action".
Note that section 426.50 also allows a party to request leave of court to amend their cross-complaint to add additional causes of action at any time during the course of the action.
A California Court of Appeal has ruled that a motion for leave of court to file a cross-complaint at any time during the course of an action must be granted unless bad faith of the moving party is shown. See Silver Organizations Ltd. v. Frank (1990) 217 Cal.App 3d 94, 98-99 which stated that, "The legislative mandate is clear. A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court. A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result. Factors such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith."
The Court also ruled in Silver Organizations Ltd. v. Frank, at 100, that "Our review of the entire record fails to reveal, directly or inferentially, any substantial evidence of bad faith by the appellants. Looking at the entire period between the filing of the complaint and the denial of the section 426.50 motion, a time frame of less than six months, we find nothing in appellants' words or conduct remotely suggesting dishonest purpose, moral obliquity, sinister motive, furtive design or ill will".
In Silver Organizations Ltd. v. Frank the Court of Appeal ruled that a time period of less than six months between the filing of a complaint and a motion to file a compulsory cross-complaint did not constitute bad faith
While other cases have ruled that a lengthy delay of over six months may constitute bad faith, the decision in Silver Organizations Ltd. v. Frank has not been disapproved or otherwise disagreed with in any other published case in the State of California as of the date of this blog post.
Therefore it is imperative that a party file their motion within six months or less to avoid the possibility of the court denying their motion.
Attorneys or parties in California who would like to view a portion of a sample motion for leave of court to file a compulsory cross-complaint can use the link shown below.
http://www.scribd.com/doc/55161623/Sample-Motion-for-Leave-to-File-Cross-Complaint-in-California
The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
If you are in need of assistance with any California or
Federal litigation matters, Mr. Burman is available on a freelance basis. Mr.
Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.
He accepts payments through PayPal which means that you can pay using most
credit or debit cards.
Visit his website at http://www.legaldocspro.com
Subscribe to his weekly newsletter with legal tips and tricks for California.
http://www.legaldocspro.net/newsletter.htm
Filing an ex-parte application to vacate an eviction judgment in California
Filing an ex-parte application to vacate a default and default judgment in an unlawful detainer (eviction or UD) proceeding in California is the topic of this blog post.
Because of the short time frames involved in an eviction in California, if the tenant is still living in the premises it is best to do an ex-parte application instead of a regular noticed motion. The ex-parte application must be heard by the Court before the scheduled lockout date.
The general rule is that a party seeking an ex parte order in a civil case must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance (absent a showing of exceptional circumstances justifying shorter notice). In unlawful detainer proceedings, however, an ex parte applicant may give shorter notice "provided that the notice given is reasonable." See California Rule of Court 3.1203. A declaration must be filed with the Court giving the details of when, and how notice was given to the opposing party.
Any motion to vacate would normally be made pursuant to Code of Civil Procedure § 473 which states in pertinent part that: "The Court may, upon any terms as may be just, relieve a party, or his or her legal representative from a judgment, dismissal, order or other proceeding, taken against him or her through his or her mistake, inadvertance, surprise or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken."
In order to qualify for relief from default and/or judgment under Section 473 the moving party is required to making a showing that they: (1) timely moved the Court for relief from default, (2) make a sufficient showing of mistake, inadvertance, surprise or excusable neglect, (3) and provide a copy of their proposed pleading along with their motion. Only then have they met all of the statutory conditions necessary for the Court to set aside the default and/or judgment entered against them.
A copy of the proposed Answer should be attached as an Exhibit to the declaration of the tenant, the declaration should include the details on why the tenant did not file a timely answer to the complaint, in other words they should make a showing of mistake, inadvertance, surprise or excusable neglect.
Attorneys or parties in the State of California who wish to purchase a sample 11 page ex-parte application to vacate a default and unlawful detainer judgment can see below.
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
If you are in need of assistance with any California or
Federal litigation matters, Mr. Burman is available on a freelance basis. Mr.
Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.
He accepts payments through PayPal which means that you can pay using most
credit or debit cards.
Attorneys or parties who would like to view portions of over 300 sample legal documents for California and Federal litigation sold by the author of this blog post can use the link shown below.
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DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
Wednesday, April 4, 2012
Opposing a motion to dismiss under Rule 12(b)(6)
Opposing a motion to dismiss under Rule 12(b)(6) in United States District Court is the topic of this blog post.
A Motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure as used in the Federal Courts is analogous to a general demurrer as is used in California Courts. The motion seeks to have a Complaint dismissed on the grounds that it fails to state facts sufficient to constitute a cause or causes of action. The motion to dismiss can also be used in Bankruptcy Court litigation as well.
While motions to dismiss under Rule 12(b)(6) are often filed they are rarely successful as numerous Appellate Courts have ruled that a motion to dismiss under Rule 12(b)(6) is disfavored and is rarely granted.
A motion to dismiss under Rule 12(b)(6) is disfavored and rarely granted. Hall v. City of Santa Barbara, 833 F.2d 1270, 1274 (9th Cir. 1986) ("It is axiomatic that '[t]he motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted.'") (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure 1357, at 598.
The issue is not whether the plaintiff will prevail or not. The issue is whether the plaintiff is entitled to offer evidence in support of their claims.
The U.S. Supreme Court has stated: "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence in support of the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely, but that is not the test." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Rather, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
"In reviewing the allegations, this Court construes the complaint in a light most favorable to the plaintiff, accepting all of the factual allegations as true and determines whether the plaintiff can prove no set of facts in support of his claims that would entitle him to relief." Arrow v. Fed. Reserve Bank of St. Louis, 358 F.3d 392, 393 (6th Cir. 2004).
Even a cause of action for fraud which must be specifically pleaded satisfies the particularity requirement for fraud if it identifies circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations. Deutsch v. Flannery, 823 F.2d 1361, 1365 (9th Cir.1987).
And Courts rarely grant a dismissal of a complaint without leave to amend.
"Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment." Schneider v. California DOC, 151 F.3d 1194, 1196 (9th Cir. 1998).
"Amendment should be refused only if it appears to a certainty that plaintiff cannot state a claim." Wright and Miller, Federal Practice and Procedure, vol 5A, 1357.
Attorneys or parties who wish to view a portion of a sample opposition to a motion to dismiss for sale by the author please use the link shown below.
http://www.scribd.com/doc/25605615/Sample-Opposition-to-Motion-to-Dismiss-under-Rule-12-b-6
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
Visit his website at http://www.legaldocspro.com
Subscribe to his weekly newsletter with legal tips and tricks for California and Federal litigation. http://www.legaldocspro.net/newsletter.htm
A Motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure as used in the Federal Courts is analogous to a general demurrer as is used in California Courts. The motion seeks to have a Complaint dismissed on the grounds that it fails to state facts sufficient to constitute a cause or causes of action. The motion to dismiss can also be used in Bankruptcy Court litigation as well.
While motions to dismiss under Rule 12(b)(6) are often filed they are rarely successful as numerous Appellate Courts have ruled that a motion to dismiss under Rule 12(b)(6) is disfavored and is rarely granted.
A motion to dismiss under Rule 12(b)(6) is disfavored and rarely granted. Hall v. City of Santa Barbara, 833 F.2d 1270, 1274 (9th Cir. 1986) ("It is axiomatic that '[t]he motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted.'") (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure 1357, at 598.
The issue is not whether the plaintiff will prevail or not. The issue is whether the plaintiff is entitled to offer evidence in support of their claims.
The U.S. Supreme Court has stated: "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence in support of the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely, but that is not the test." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Rather, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
"In reviewing the allegations, this Court construes the complaint in a light most favorable to the plaintiff, accepting all of the factual allegations as true and determines whether the plaintiff can prove no set of facts in support of his claims that would entitle him to relief." Arrow v. Fed. Reserve Bank of St. Louis, 358 F.3d 392, 393 (6th Cir. 2004).
Even a cause of action for fraud which must be specifically pleaded satisfies the particularity requirement for fraud if it identifies circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations. Deutsch v. Flannery, 823 F.2d 1361, 1365 (9th Cir.1987).
And Courts rarely grant a dismissal of a complaint without leave to amend.
"Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment." Schneider v. California DOC, 151 F.3d 1194, 1196 (9th Cir. 1998).
"Amendment should be refused only if it appears to a certainty that plaintiff cannot state a claim." Wright and Miller, Federal Practice and Procedure, vol 5A, 1357.
Attorneys or parties who wish to view a portion of a sample opposition to a motion to dismiss for sale by the author please use the link shown below.
http://www.scribd.com/doc/25605615/Sample-Opposition-to-Motion-to-Dismiss-under-Rule-12-b-6
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
If you are in need of assistance with any California or
Federal litigation matters, Mr. Burman is available on a freelance basis. Mr.
Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.
He accepts payments through PayPal which means that you can pay using most
credit or debit cards.
Visit his website at http://www.legaldocspro.com
Subscribe to his weekly newsletter with legal tips and tricks for California and Federal litigation. http://www.legaldocspro.net/newsletter.htm
Filing a demurrer to an answer in California
The filing of a demurrer to an answer in California is the topic of this blog post.
http://www.legaldocspro.com/blog/general-demurrer-to-an-answer-in-california/
Tuesday, April 3, 2012
Filing an action on a judgment under section 337.5(b) of the Code of Civil Procedure in California
Filing an action on a judgment under Code of Civil Procedure § 337.5(b) in California is the topic of this blog post.
Many people are under the impression that a California judgment is no longer collectible once 10 years have passed since the date of entry of the judgment.
That is not always true. In fact, Code of Civil Procedure § 683.020 states that, "Except as otherwise provided by statute, upon the expiration of 10 years after the date of entry of a money judgment or a judgment for possession or sale of property:
(a) The judgment may not be enforced.
(b) All enforcement procedures pursuant to the judgment or to a writ or order issued pursuant to the judgment shall cease.
(c) Any lien created by an enforcement procedure pursuant to the judgment is extinguished."
However, what many people do not know is that a separate action on the judgment may be commenced after the 10 year enforcement period has expired, if the statute of limitations provided by Code of Civil Procedure § 337.5(b) has not yet expired. That statute of limitations is also 10 years. However, it does not begin to run until the judgment has become final either upon expiration of the period within which an appeal may be taken, or, if an appeal is taken, upon the issuance of the remittitur when the judgment has been affirmed. See Hoover v. Galbraith (1972) 7 Cal.3d 519, 525-526.
And if the judgment debtor is absent from the state, the statute of limitations is tolled for the period of time they are absent pursuant to Code of Civil Procedure § 351; see also Green v. Zissis (1992) 5 Cal.App.4th 1219, 1223.
And if the judgment debtor files a bankruptcy petition the statute of limitations period is also tolled during the period of the automatic stay. Kertesz v. Ostrovsky (2004) 115 Cal.App.4th 369, 377.
This means that many California judgments that are considered not collectible may in fact be collectible simply by filing an action on the original judgment pursuant to the provisions of Code of Civil Procedure § 337.5.
And a judgment creditor is entitled as a matter of right to a judgment on the original judgment providing it is commenced within the 10- year statute of limitations period. Laches is no defense. See United States Capital Corp. v. Nickelberry (1981) 120 Cal.App.3d 864, 867-868.
Note that a stipulated judgment cannot normally be appealed and becomes final when entered, unless both parties enter into the stipulated judgment to facilitate an appeal. Cadle Co. II, Inc. v. Sundance Financial, Inc. (2007) 154 Cal.App.4th 622, 624.
Attorneys or parties in the State of California who would like to view a sample complaint for an action under Code of Civil Procedure § 337.5(b) can click below.
http://www.scribd.com/doc/117991884/Sample-Complaint-to-Renew-Judgment-Under-CCP-Section-337-5-b
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
If you are in need of assistance with any California or
Federal litigation matters, Mr. Burman is available on a freelance basis. Mr.
Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.
He accepts payments through PayPal which means that you can pay using most
credit or debit cards.
Visit his website at http://www.legaldocspro.com
Subscribe to his weekly newsletter with legal tips and tricks for California and Federal litigation. http://www.legaldocspro.net/newsletter.htm
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