Friday, March 30, 2012
Thursday, March 29, 2012
Requesting judicial notice in California
Requesting judicial notice in California is the topic of this blog post.
The statutes governing judicial notice are contained in Evidence Code Sections 450 through 460.
Evidence Code § 451 states that the Court must take judicial notice of the following matters:
(a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution.
(b) Any matter made a subject of judicial notice by Section 11343.6, 11344.6, or 18576 of the Government Code or by Section 1507 of Title 44 of the United States Code.
(c) Rules of professional conduct for members of the bar adopted pursuant to Section 6076 of the Business and Professions Code and rules of practice and procedure for the courts of this state adopted by the Judicial Council.
(d) Rules of pleading, practice, and procedure prescribed by the United States Supreme Court, such as the Rules of the United States Supreme Court, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Admiralty Rules, the Rules of the Court of Claims, the Rules of the Customs Court, and the General Orders and Forms in Bankruptcy.
(e) The true signification of all English words and phrases and of all legal expressions.
(f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute.
Evidence Code § 452 states that the Court may take judicial notice of the following matters:
(a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state.
(b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.
(c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.
(d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.
(e) Rules of court of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.
(f) The law of an organization of nations and of foreign nations and public entities in foreign nations.
(g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.
(h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.
Judicial notice may not be taken of any matter unless authorized or required by law. See Evidence Code § 450.
Any party requesting judicial notice must give notice of such request to each adverse party to enable that party to meet the request, and must furnish the Court with sufficient information to enable it to take judicial notice of the matter. See Evidence Code § 453.
Note that judicial notice of other Court records and files is limited to matters that are indisputably true. See Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App. 4th 97, 113. This means that judicial notice is limited to the orders and judgments in the other court file, as distinguished from the contents of documents filed therein.
However, there are exceptions to this rule when a party amends a pleading, particularly a verified pleading and omits material factual allegations that were included in the original pleading without an adequate explanation.
"The general rule is that material factual allegations in a verified pleading that are omitted in a subsequent amended pleading without adequate explanation will be considered by the court in ruling on a demurrer to the later pleading." Shoemaker v. Myers (1990) 52 Cal. 3d 1, 13.
Judicial notice is a very useful tool for any party involved in California civil litigation. They just need to be aware of its limitations.
Attorneys or parties in California who wish to view a sample request for judicial notice created by the author can click below.
www.scribd.com/doc/37754803
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 and Federal litigation. http://www.legaldocspro.net/newsletter.htm
Obtaining leave to amend pleadings in California
Obtaining leave to amend pleadings in California is the topic of this blog post.
This post will discuss the the issue of amendment of pleadings in California litigation and the circumstances when leave to amend is required. Leave to amend means that a party must seek permission from the Court to amend their pleadings, whether that be an answer, a complaint, cross-complaint or similar pleadings.
One of the main statutes governing amendment of pleadings is Code of Civil Procedure Section 472 which states that, "Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, and the time in which the adverse party must respond thereto shall be computed from the date of notice of the amendment." The same rule also applies to cross-complaints.
And any part of the complaint may be changed without leave including the addition of new parties as plaintiff or defendant. See Ryan G. v. Department of Transportation (1986) 180 Cal.App. 3d 1102, 1105, where applicable, CCP § 472 prevails over CCP § 473(a) (requiring leave of court to add new parties. This means that not only could new parties be added but presumably also new causes of action. That is vital because if a party waits until after a demurrer hearing in which leave to amend is granted they can only amend those causes of action ruled upon at the demurrer hearing. If they try to add new causes of action they risk another demurrer on that basis. If a party wishes to add new parties or causes of action they should request leave of Court if and when the demurrer is sustained.
Note that while an answer can be amended without leave of Court if a demurrer has been filed, if no demurrer has been filed, the answer can be amended as a matter of right only during the time that a demurrer could have been interposed (i.e., within 10 days after the answer was filed). See Code of Civil Procedure § 430.40(b).
Normally, when a demurrer is sustained, or motion to strike is granted, some material allegation of the prior pleading has to be changed. An amended pleading making substantive changes (changes in material allegations) is treated as a new pleading, and must be served on all opposing parties—not just those who objected to the prior pleading. See Cohen v. Sup.Ct. (Southern Pacific Co.) (1966) 244 Cal. App. 2d 650, 656.
If leave to amend is needed and an answer has already been filed then a party must file a noticed motion to request it. However the policy of law in California is that leave to amend should be liberally granted.
Courts are bound to apply a policy of great liberality in permitting amendments "at any stage of the proceedings, up to and including trial," absent prejudice to the adverse party. See Atkinson v. Elk Corp. 109 (2003) Cal.App. 4th 739, 761.
Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence or added costs of preparation, increased burden of discovery, etc. See Magpali v . Farmers Group, Inc. (1996) 48 Cal.App. 4th 471, 486-488.
Further, there is a right to amend "to correct inadvertent misstatements of facts or erroneous allegations of terms." See Berman v. Bromberg (1997) 56 Cal.App. 4th 936, 945.
Courts usually display great liberality in allowing amendments to answers because "a defendant denied leave to amend is permanently deprived of a defense." See Hulsey v. Koehler (1990) 218 Cal.App. 3d 1150, 1159.
However, a party should be extremely careful in amending a pleading and omitting certain material facts that were including in the original pleading. That can backfire in a big way.
"The general rule is that material factual allegations in a verified pleading that are omitted in a subsequent amended pleading without adequate explanation will be considered by the court in ruling on a demurrer to the later pleading." See Shoemaker v. Myers (1990) 52 Cal. 3d 1, 13.
And the same principle has been held equally applicable to unverified complaints. See Pierce v. Lyman (1991) 1 Cal.App. 4th 1093, 1109.
Plaintiff can avoid the effect of earlier admissions by including in the complaint a satisfactory explanation why the earlier admissions are incorrect. Absent such explanation, however, the self-destructive allegations in the earlier pleading or discovery response are "read into" the complaint, and allegations inconsistent therewith treated as sham and disregarded. See Owens v. Kings Supermarket (1988) 198 Cal. App. 3d 379, 384.
The most important thing to remember is that parties should make sure that any amended complaint does not omit any material factual allegations without a good explanation. Otherwise serious legal consequences can result.
Demurrers have been sustained due to inconsistent statements made by the pleader in a different lawsuit. "The principle is that of truthful pleading" See Cantu v. Resolution Trust Corp. (1992) 4 Cal.App. 4th 857, 877–878.
Attorneys or parties in California who wish to view sample legal documents used by the author can click below.
http://www.scribd.com/LegalDocsPro
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 newsletter with legal tips and tricks for California. http://www.legaldocspro.net/newsletter.htm
Default judgment by the court clerk in California
A default judgment by the court clerk in California is the topic of this blog post.
In the State of California, the court clerk is authorized upon a request by the plaintiff to enter a default judgment against the defendant without a court hearing or judicial action of any kind. However, the law does strictly limit the power of the court clerk to enter a default judgment and the requirements are strictly construed.
Entry of a default judgment by the court clerk is authorized only in the following situations: (1) The action is one "arising upon a contract or judgment"; (2) the action seeks recovery of "money or damages only" in a fixed or determinable amount; and (3) Defendant was not served by publication.
In unlawful detainer cases, the clerk will enter judgment for possession of the premises immediately upon proper request therefor. However, plaintiff must apply to the court for damages or any other relief sought in the complaint including court costs. See Code of Civil Procedure § 1169.
The first requirement for a clerk's judgment is that the action be one "arising upon a contract or judgment " See Code of Civil Procedure § 585(a). This includes implied, as well as express, contracts such as actions in quasi-contract as long as the judgment is for a fixed and determinable amount.
The clerk is authorized to enter default judgment in an action based on a judgment rendered in any previous court action, and this power is not limited to California judgments. See Code of Civil Procedure § 585(a).
The recovery sought must be of "money or damages only." The courts have construed this language narrowly. As a result, in an action based on contract, the amount due must either be fixed in the contract itself, or be determinable by calculation from its terms. If there is any uncertainty as to the amount due, the court clerk has no power to resolve it. Instead, a court judgment will be required. See Liberty Loan Corp. of North Park v. Petersen (1972) 24 Cal.App 3d 915, 919.
The court clerk is authorized to enter a default judgment where the amount due can be computed from the contract itself such as:
Actions on open book accounts such as running charge account balances. See Diamond National Corp. v. Golden Empire Builders, Inc. (1963) 213 Cal.App. 2d 283, 288, 289.
Action on account stated (statements received and accepted by defendant showing charges and credits to date). See Fallon & Co. v. United States Overseas Airlines, Inc. (1961) 194 Cal.App. 2d 546, 551, 552.
But the court clerk cannot adjudicate the amount due by taking evidence or exercising discretion. Thus, where the amount claimed by plaintiff cannot be computed from the contract itself, the court clerk has no power to enter judgment. A judgment by the court is required in such situations as:
Action for an accounting. See Crossman v. Vivienda Water Co. (1902) 136 Cal. 571, 574.
Action for "reasonable value" of property or services conferred; or "net profits" of a business. See Gray v. Laufenberger (1961) 195 Cal.App. 2d Supp. 875, 878.
Action on a secured promissory note claiming that security has become "worthless". The Court in one case ruled that testimony was necessary to determine whether this is so. See Ford v. Sup.Ct. (Orton) (1973) 34 Cal.App 3d 338, 342.
Action on a secured promissory note for $500, where the demand was only $253, without any explanation as to how reduction occurred, the Court ruled that the complaint failed to negate the possibility that the collateral securing the note had not been dealt with or sold. See Liberty Loan Corp. of North Park v. Petersen (1972) 24 Cal.App 3d 915, 919, 920.
If the complaint includes a demand for attorney fees, this may affect the clerk's power to enter a default judgment.
If the contract sued upon stipulates the amount of attorney fees recoverable in such action, the clerk is authorized to enter judgment accordingly. For example if the Promissory note provides for attorney's fee in an amount equal to 10% of principal and interest due the court clerk can compute and enter the amount.
But where the contract merely calls for an "attorney's fee as fixed by the court," or a "reasonable attorney's fee," the court clerk has no power to determine the amount. See Landwehr v. Gillette (1917) 174 Cal.654, 657, 658.
Courts are authorized to adopt schedules of attorney fees allowable in default cases where a statute or contract authorizes fee awards such as actions on a promissory note containing an attorney fee provision. See California Rule of Court 3.1800(b). Where such fee schedules are in effect, and plaintiff is willing to accept the scheduled fee, the court clerk may include that amount in the default judgment. See Code of Civil Procedure § 585(a).
If the causes of action joined in a complaint are in fact, separate and distinct, the clerk can enter default judgment on the "contract" or "judgment" cause of action only. Plaintiffs who want judgment on the other cause of action as well will have to obtain a default judgment from the court. See Norman v. Berney (1965) 235 Cal.App 2d 424, 431, 432. This means that if a complaint joins a cause of action for breach of a construction contract with a cause of action to foreclose a mechanic’s lien for work done, the clerk can enter default judgment only on the "contract" cause of action. If the plaintiff wants his mechanic's lien foreclosed, he will have to obtain a court judgment.
But the clerk cannot enter a valid default judgment where the "contract" cause of action is merely an alternative theory for recovery on a claim that otherwise does not qualify for a clerk's default judgment. See Brown v. Sup.Ct. (Stewart) (1966) 242 Cal.App 2d 519, 525. For example if a complaint joined a cause of action for "reasonable value" of services rendered with cause of action for "account stated" based on billings for same services the clerk could not enter a default judgment on the "reasonable value" count because there is no fixed or determinable amount, and the "account stated" claim is merely an alternative theory for recovery, the clerk has no authority to enter default judgment on either count. A court judgment is required.
A promissory note or other written obligation to pay money such as a negotiable instrument, if any, upon which the action is brought must be submitted to the clerk. The court clerk is required to note across the face of the writing, over his official signature, the date and fact that judgment has been rendered on such contract. See California Rule of Court 3.1806.
If the original writing has been lost or destroyed, plaintiff should obtain a declaration to that effect and apply for an ex parte court order directing the court clerk to accept a copy in lieu of the original. Otherwise the clerk cannot enter judgment as the clerk must have the original writing in order to enter a judgment unless the court orders otherwise.
If the action is one to enforce an earlier judgment, a certified copy of that judgment must be provided to the clerk in order for them to enter the judgment.
And where the action is on an open book account, the court clerk may require copies of the bills or invoices, and a declaration negating the existence of any written agreement with the defendant.
And it should also be stressed that if a clerk’s judgment is obtained and the clerk awards attorney fees pursuant to the schedule of the court then plaintiff will not be allowed attorney fees as a cost of enforcing any judgment because the fees were not awarded pursuant to a contract. See Code of Civil Procedure § 685.040 which states that attorney fees incurred for enforcing a judgment are not included as costs unless the underlying judgment includes an award of attorney fees pursuant to a contract. See also Code of Civil Procedure § 1033.5(10)(a).
The attorney fees are considered to have been awarded pursuant to the court’s schedule. This can prove to be a major tactical mistake if the plaintiff is seeking a large judgment and anticipates that enforcement of the judgment will be difficult. In that case, it may be better to obtain a court judgment where a judge can award "reasonable" attorney fees pursuant to a contract.
Plaintiff should find out beforehand how long it usually takes to obtain a clerk’s default judgment in the court in which their case is pending as some court’s take almost as long to enter a clerk’s judgment as they do to enter a court judgment. And a party is not required to obtain a clerk's default judgment, even in cases in which it is available.
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 and Federal litigation. http://www.legaldocspro.net/newsletter.htm
Saturday, March 17, 2012
Filing a motion to quash in a California unlawful detainer (eviction) case
Filing a motion to quash service in a California unlawful detainer (eviction) case is the topic of this blog post.
http://www.legaldocspro.com/blog/motion-to-quash-service-in-an-unlawful-detainer-case-in-california/
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