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.

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.

   Sample Ex-Parte Application to Vacate Judgment for California by Stan Burman

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.

View over 300 sample legal documents for sale

You can view sample legal document packages by clicking the link shown below.

View sample document packages


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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.

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.

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/ 

 

Enforcing a sanctions order as a judgment in California

http://www.legaldocspro.com/blog/sanctions-order-enforcement-in-california/

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

Filing a demurrer to common counts in California

http://www.legaldocspro.com/blog/demurrer-to-a-breach-of-contract-complaint-in-california/

Affirmative defenses in unlawful detainer (eviction) proceedings in California

Affirmative defenses which may be used by a defendant (tenant) in an unlawful detainer (eviction) action in California are the topic of this blog post. 

http://www.legaldocspro.com/blog/affirmative-defenses-to-an-unlawful-detainer-complaint-in-california/

How to object to a defective three-day notice in California

How to object to a defective three-day notice in California is the topic of this blog post.  

http://www.legaldocspro.com/blog/demurrer-to-an-unlawful-detainer-complaint-in-california/

Opposing a motion for summary judgment/adjudication in California

http://www.legaldocspro.com/blog/summary-judgment-motion-opposition-in-california/

Filing a petition to compel arbitration in California

Filing a petition to compel arbitration in California is the topic of this blog post. 

Many agreements and contracts now include an arbitration provision providing that all disputes, or in some cases certain disputes, shall be sent to arbitration. The California Code of Civil Procedure has provisions relating to a petition to compel arbitration.


The primary purpose of arbitration is to provide a speedy and relatively inexpensive means of dispute resolution.  Arbitration has grown in popularity  over the last ten to twenty years as a useful alternative to the California court system.

California Code of Civil Procedure § 1281.2 states in pertinent part that: "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy, and that a party thereto refuses to arbitrate the controversy, the court shall order the parties to so arbitrate if it determines that such an agreement exists."

Thus the statutes in California provide a procedure by which a party who wishes to submit a dispute to arbitration can petition the court to compel the other party to arbitrate the dispute, provided that a valid agreement exists with a provision that certain disputes, or in some cases all disputes, shall be arbitrated. The statutes regarding arbitration state that the party seeking to compel arbitration has the burden of proving that a written agreement to arbitrate exists.

California Code of Civil Procedure § 1281.2 states in pertinent part that, "When a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must decide whether the agreement exists, and if any defense to its enforcement is raised, whether the agreement is enforceable. Because existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence."

The case law in California is clear that there is a strong public policy in favor of arbitration, and that any doubts as to the scope of an agreement to arbitrate are to be resolved in favor of arbitration. However, a party can be compelled to arbitrate only those issues it has agreed to arbitrate.

The California Supreme Court has stated that it is well established that under California law there is a strong public policy in favor of arbitration. See Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 971-972

And a California Court of Appeal has also stated that any doubts as to the scope of an agreement to arbitrate are to be resolved in favor of arbitration. See Hayes Children Leasing Co. v. NCR Corp. (1995) 37 Cal.App.4th 775, 788.

Attorneys or parties in California who would like to view a portion of a sample petition to compel arbitration can see below to a sample motion complete with a memorandum of points and authorities with full citations to case and statutory authority and a sample declaration that is sold by the author.

http://www.scribd.com/doc/27239005/Sample-Petition-to-Compel-Arbitration-for-California


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