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Monday, November 25, 2013

Bifurcation of marital status in California


Bifurcation of marital status allows for termination of marital status in California dissolution (divorce) proceedings even if the other issues in the case have not been settled.

As it can take many months, even several years, for a contested divorce to wind its way through the courts in California many spouses want to terminate the marriage quickly. There might also be situations in which it makes sense to have a separate trial of a particular issue. This is particularly true now that the financial crisis has resulted in the courts in California having to lay off support personnel such as clerks.

This has caused the courts in California in certains counties to take much longer to schedule hearing and trial dates.

Bifurcation basically means that either the marital status is terminated and the parties are restored to their single status or a separate trial is to be held concerning a specific issue.

Bifurcations are generally requested because one or both of the spouses want to remarry. They are also sought because one or both of them want to file their tax returns for the current year as a single taxpayer.

The tax laws state that a person can file as a single person as long as his or her marital status was terminated before the end of the year. Thus, even if the marital status is terminated on December 31st, the taxpayer can still file as a single person for the entire year.

This can result in significant tax savings, particularly for the person who is paying spousal or family support.

Payments of spousal and family support are 100% deductible for the person who is ordered to make those payments and must be reported as income by the person receiving them. Income tax laws state that these support payments are not deductible if the spouses file a joint tax return.

The court can also bifurcate the trial of certain issues. For example, where there is a family business that was owned before the marriage, the spouses might disagree as to whether it is community property or the separate property and what it is worth. If the business is ultimately found to be the separate property of the spouse who started it, the value of the business would be irrelevant. In such a case, the judge might order that there will be a bifurcated trial to first determine if the business is community property or separate property. If the result of that trial is a finding that the business is community property, then there would be a trial on the value to be placed on it.
 
The law provides that the marital status can be terminated not less than six months from when the respondent was served with the petition for dissolution of marriage. So, only cases in which the respondent was served or made a general appearance on or before June 30th can be bifurcated during that year.

Most courts require the filing of a motion for bifurcation, although some courts allow it to be done simply by filing a written stipulation.  Anyone considering requesting bifurcation should check with their court to determine if a written stipulation is acceptable.

If a motion is required, the appropriate court papers must be prepared, which must then be filed with copies mailed to the spouse or his/her attorney. Approximately 4-6 weeks or more after the motion is filed, the requesting spouse and his/her attorney if they have one have to appear before the judge, who will almost always grant the request.

California law favors bifurcation in the absence of particularized, compelling reasons to the contrary. Under this approach, bifurcation will be granted for almost any reason, such as possible tax advantages, fewer constraints in social and financial matters, or the fact that the property issues will require more discovery and a more lengthy trial.

For example, in Gionis v. Superior Court (1988) 202 Cal. App. 3d 786, 788-790, the California Court of Appeal held that a request for bifurcation does not have to be justified by a compelling showing of need, and that on the contrary a spouse opposing bifurcation must present compelling reasons for denial. Reviewing California case law, the court found that bifurcation was a favored procedure because it implemented the policy underlying no-fault divorce. The court noted that the state's high court had endorsed the concept of bifurcation by stating that:

"Severance of a personal relationship which the law has found to be unworkable and, as a result, injurious to the public welfare is not dependent upon final settlement of property disputes. Society will be little concerned if the parties engage in property litigation of however long duration; it will be much concerned if two people are forced to remain legally bound to one another when this status can do nothing but engender additional bitterness and unhappiness." Hull v. Superior Court (1960) 54 Cal. 2d 139, 147.

While the granting of a request for bifurcation of the marital status is virtually automatic in the great majority of cases, there are some prerequisites and conditions that must be followed by the requesting party. Initially, the party requesting bifurcation must serve his or her preliminary declaration of disclosure on the other spouse before the request for bifurcation is filed.

The judge will usually impose certain conditions on the granting of a bifurcation. These include:

(1) The obligation to reimburse opposing party for any tax consequences or loss of right to claim probate homestead or family allowance; (2) The employee-spouse must maintain existing medical insurance for the other spouse; (3) The employee-spouse must indemnify the other spouse for loss of pension death benefits. In addition, the law requires that, before a bifurcation is granted, the pension plans of the spouses must be joined in the divorce case.

The condition that existing medial insurance be maintained is particularly significant. Under that condition, the spouse requesting bifurcation must maintain existing medical insurance for the other spouse. If such coverage is no longer available, the requesting spouse must purchase medical insurance for the spouse that provides coverage that is comparable to the existing coverage. If such insurance is not available, the requesting spouse must pay for all medical bills incurred by the other spouse that would have been paid by the existing medical coverage.

As previously mentioned, a person can file as a single taxpayer for the entire year, as long as the marital status was terminated sometime in that year, even as late as December 31st. This is why there is usually a flood of bifurcation motions filed at the end of the year. To make sure that the clerk places a bifurcation motion on the court's calendar before the end of the year, the motion should be filed not later than October 15th, if not earlier.

Attorneys or parties in California who would like to view a portion of a sample stipulation and order for bifurcation of marital status sold by the author can use the link shown below.

Sample California stipulation and order for bifurcation of marital status

To view more than 200 sample legal documents for California and Federal litigation sold by the author of this blog post use the link shown below.

View more than 200 sample legal documents for California and Federal litigation
 
The author of this article, 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 for more information on subscribing to his FREE weekly newsletter with legal tips and tricks for California and Federal litigation.

 

 

 

Discovery in California dissolution (divorce) proceedings

Discovery in California dissolution (divorce) proceedings is the topic of this blog post.

Parties in California divorce proceedings can utilize the same discovery procedures as are used in California 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 section 210.

The importance of discovery in divorce and other family law litigation cannot be emphasized enough. Utilizing discovery correctly can mean the difference between winning and losing for many divorce cases. Yet many law firms and solo attorneys are so overworked and understaffed that they do not have the time to propound enough discovery on their divorce cases. The result is that many cases which could have been won at trial, or a reasonable settlement reached before trial, instead are lost. The following discovery procedures have been found to be very cost effective in divorce cases.

Form interrogatories for divorce 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 on Judicial Council Form FL-142 if that form is attached to the form interrogatories.

Special interrogatories are also 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 request for attorney’s fees, sole custody, spousal support and other requests or contentions made in that party’s petition or response.

Additionally, 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 divorce proceeding. And a party can demand that the other party allow them to inspect and to photograph, test, or sample any tangible things that are in the possession, custody, or control of the party on whom the demand is made as well as demand that any other party produce and permit the party making the demand, or someone acting on that party's behalf, to inspect, copy, test, or sample electronically stored information in the possession, custody, or control of the party on whom demand is made.

Thus a party who believes that the other party is hiding assets may demand to inspect their computer, or other electronically stored information. This could be extremely valuable as computer records may show certain websites that were visited such as bank websites for hidden accounts, or e-mails to banks or other parties which have information on where hidden assets are located. And many people keep a spreadsheet or other list of their assets on their computer thinking that their spouse will never find it.

And requests for admission can be used to request the other party admit or deny certain pertinent facts, and/or admit that certain attached documents are genuine.

The California courts have ruled that the scope of discovery in California litigation is very broad. Any doubts are applied liberally in favor of discovery.

For discovery purposes, information is relevant if it might reasonably assist a party in evaluating case, preparing for trial, or facilitating settlement. Gonzalez v. Superior Court (City of San Fernando) (1995) 33 Cal.App.4th 1539, 1546.

Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. Davies v. Superior Court (1984) 36 Cal.3d 291, 301.

These rules are applied liberally in favor of discovery. Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790, and (contrary to popular belief), fishing expeditions are permissible in some cases. Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 385, ("although fishing may be improper or abused in some cases, that "is not of itself an indictment of the fishing expedition per se").

Propounding discovery is a vital tool in (1) evaluating the strengths and weaknesses of each party’s case; (2) preparing for trial, and (3) facilitating settlement. This is particularly so in a divorce case involving disputed issues such as community property and/or debts.

Form and special interrogatories, request for admissions, and requests for production and inspection of documents and other tangible things all need to be utilized so that the facts, witnesses and documents that support the opposing party’s claims or defenses can be ascertained, deposed and reviewed, and getting certain admissions or denials of issues relevant to the divorce on record before the trial.

Attorneys or parties who wish to view a portion of sample request for production of documents specifically designed for use in divorce cases with 36 separate categories of document requests for sale by the author please click below.

http://www.scribd.com/doc/25882576

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. Visit his website at http://www.legaldocspro.com for more information on subscribing to his FREE weekly newsletter with legal tips and tricks for California and Federal litigation.

 

 

 

Motion to dismiss adversary complaint for fraud in United States Bankrutpcy Court

A motion to dismiss an adversary complaint for fraud in United States Bankruptcy Court is the topic of this blog post. The motion to dismiss is generally made on the grounds that the adversary complaint fails to state a claim. This type of motion is often called a 12(b)(6) motion as it is based on Federal Rule of Civil Procedure 12(b)(6) (FRCP), or Federal Rule of Bankruptcy Procedure 7012(b)(6) (FRBP).

A party may also request in the alternative, that the party be required to provide a more definite statement under FRCP 12(e) or FRBP 7012(e).

FRCP and FRBP 12 (e) both state in pertinent part that, "A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired".

The motion for a more definite statement may be joined with the motion to dismiss pursuant to FRCP and FRBP 12(g).

Most adversary complaints filed in bankruptcy courts are made under 11 U.S.C. § 523(a)(2) on the grounds of fraudulent representations. Note that FRCP 9(b) states in pertinent part that, "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake".

"It is established law, in this circuit and elsewhere, that Rule 9(b)'s particularity requirement applies to state-law causes of action. "While a federal court will examine state law to determine whether the elements of fraud have been pled sufficiently to state a cause of action, the Rule 9(b) requirement that the circumstances of the fraud must be stated with particularity is a federally imposed rule." Vess v. Ciba-Geigy Corp. 317 F. 3d 1097, 1103 (9th Cir. 2003) (internal citations omitted).

The reason for the particularity requirement is due to the fact that fraud is a serious charge against another party.

As the author mainly works on cases from California any fraud claims would most likely be a California cause of action.

California law requires that four (4) elements be specifically pleaded in any cause of action for fraud.

"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. 44 Cal.App.4th 1807, 1816 (1996).

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. at 1818.

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 274 Cal.App 2d 316, 327 (1969) (internal citations omitted).

While leave to amend is usually granted if a motion to dismiss is successful, the Ninth Circuit has ruled that leave to amend does not need to be granted where amending the complaint would be futile, and that any discretion to deny leave to amend is particularly broad where plaintiff has previously amended their complaint.

Leave need not be granted where the amendment of the complaint . . . constitutes an exercise in futility," and "the district court's discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint." Ascon Properties v. Mobil Oil Co. 866 F.2d 1149, 1160 (9thCir. 1989).

A motion to dismiss and/or a motion for a more definite statement are very useful when used in the right situation as many adversary complaints for fraud are filed but fail to allege the fraud with particularity, or they are so vague and ambiguous that the defendant cannot reasonably prepare a proper response.

Attorneys or parties in California who would like to view a portion of a sample motion to dismiss an adversary complaint can use the link shown below.

http://www.scribd.com/doc/55067234/Sample-Motion-to-Dismiss-Adversary-Complaint-for-Fraud

The author of this article, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995.  

Subscribe to his weekly newsletter with legal tips and tricks for California and Federal litigation.  http://www.legaldocspro.net/newsletter.htm

Adopting an adult in California

Adopting an adult in California is the topic of this blog post. This post will briefly discuss adult adoption procedure in California.

California law states that any adult person may adopt another younger person so long as the person adopting is at least ten (10) years older than the person being adopted. An adult adoption is when someone adopts a person who is 18 years old or over and not necessarily related to them. An adult adoption changes the legal rights of the adoptive parent and the adoptee. It severs the existing relationship with biological parents.

The person being adopted may be unrelated, or may be an adult stepchild, niece, nephew, cousin or grandchild of the adopting person. Often in a stepparent situation, when the legal parent’s rights cannot be terminated nor consent obtained, the parties can wait until the minor is 18 and proceed with an adult adoption.

In adult adoptions:

Neither the consent of the natural parent or parents of the person to be adopted is required;

A Social Services investigation is usually not required;

A married person who is not legally separated from his or her spouse cannot adopt an adult person without the consent of the spouse of the adopting person;
 
A married person who is not legally separated from his or her spouse cannot be adopted without the consent of the spouse of the person to be adopted;

The person being adopted may elect to change his or her name through the adoption proceeding or may elect to keep his or her existing name.

A petition for adult adoption is filed with the court listing the name, age, date and place of birth of the petitioners, how long the petitioners have known each other, why the petitioners want the adoption to take place and why the adoption is in the public interest. The petition must also ask the court to approve the adoption agreement and to make an adoption order.

If either petitioner is married, the name of the spouse (if any), the date of their marriage, and the names and ages of their children. If spouses have signed consents to the adoption, their names and dates they signed the consents must be listed in the petition and the original signed consents must be attached as well.

An adoption agreement between the person to be adopted and the adoptive parent must also be filed with the petition. Both petitioners must sign and date the agreement. The agreement must say that they both agree to assume the legal relationship of parent and child and all the duties and responsibilities of that relationship.

An amended birth certificate must be filed with the clerk of the court on or before the final hearing date. This form must be obtained by the clerk of the court. After the adoption is final, the clerk will mail the VS44 to the State Registrar at the Department of Health Services in Sacramento. An amended birth certificate will then be issued.

Attorneys or parties in California who wish to view a portion of a sample of an adult adoption kit for California sold by the author can use the link shown below.

http://www.scribd.com/doc/27235449/Sample-Adult-Adoption-Kit-for-California

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.com

Subscribe to his weekly newsletter with legal tips and tricks for California and Federal litigation. http://www.legaldocspro.net/newsletter.htm

 

Friday, November 15, 2013

Default judgment by declaration in California

http://www.legaldocspro.com/blog/code-of-civil-procedure-section-585d-default-judgment-in-california/

Piercing the corporate veil in California

Alter ego liability also known as piercing the corporate veil in California is the topic of this blog post.

The allegations are known as piercing the corporate veil because they are used to "pierce the corporate veil" and allow a plaintiff to add an individual person, or persons, or even another corporation as a defendant and seek to hold them responsible for the debt of the main corporation.

Alter ego allegations are generally used against smaller corporations, particularly corporations with only one or two owners. However, they can also be used against Limited Liablity Companies in California pursuant to California Corporations Code Section 17101(b).

The author recently drafted a complaint with alter ego allegations against an individual who was the managing member of a California Limited Liability Company on the grounds that this particular managing member took the proceeds from a business loan and deposited them into their personal bank account.

There are two main requirements of alter ego liability in California as stated by a California Court of Appeal.

There must be such unity of interest and ownership that the separate personalities of the corporation and individual no longer exist, and that if the acts are treated as those of the corporation alone, it would sanction a fraud or promote injustice to uphold the corporate entity and allow the shareholders to escape personal liability for the debt. See Associated Vendors Inc. v. Oakland Meat Co. (1962) 210 Cal. App. 2d 825, 836.

Another California Court of Appeal stated that alter ego liability is premised upon the notion that when a corporation is used by an individual or individuals, or by another corporation, to perpetrate a fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose, a court may disregard the corporate entity and treat the acts as if they were done by the individuals themselves. See Kohn v. Kohn (1950) 95 Cal. App. 2d 708, 717-720.

A party cannot totally avoid the possibility that someone may seek to hold them personally liable for the debts for a corporation which they own or control. However, if they just keep in mind the fact that if they want their business to be treated like a corporation they need to act like a corporation with totally separate bank accounts, hold all required directors’ and shareholders meeting, and keep accurate records and/or minutes of any corporate meetings.

Attorneys or parties in California who would like to view a sample complaint for California that includes alter ego or corporate veil piercing allegations sold by the author can use the link shown below.

Sample California complaint with alter ego allegations

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 235 sample legal documents. Visit his website at LegalDocsPro website and his Facebook page at Facebook page

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:  Subscribe to FREE weekly newsletter

Copyright 2013 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.

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.

Thursday, November 14, 2013

Deposition notice for individual in California

A deposition notice for an individual in California is the topic of this blog post.  The statutes that govern deposition notices in the State of California are found in Code of Civil Procedure sections 2025.010 through 2025.620.

A defendant may serve a deposition notice without leave of court at any time after that defendant has been served, or has appeared in the action, whichever occurs first. The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. On motion with or without notice, the court, for good cause shown, may grant to a plaintiff leave to serve a deposition notice on an earlier date. See Code of Civil Procedure § 2025.210.

Code of Civil Procedure 2025.220 states that a party that wants to take the oral deposition of another party must give notice in writing and the notice must contain certain required information.

Code of Civil Procedure § 2025.230 states that, "If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent."

The party who prepares a notice of deposition shall give the notice to every other party who has appeared in the action. The deposition notice, or the accompanying proof of service, shall list all the parties or attorneys for parties on whom it is served. See Code of Civil Procedure § 2025.240(a).

The deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent's residence, or within the county where the action is pending and within 150 miles of the deponent's residence. See Code of Civil Procedure § 2025.250(a)

If a party wants to take the deposition of a party who lives farther away than the limits specified in Code of Civil Procedure § 2025.250 they must file a motion with the Court under Code of Civil Procedure § 2025.260.

The notice of deposition must be served at least ten (10) days before the deposition unless the notice is served by mail in which case it must be served at least fifteen (15) days before the deposition. If production of consumer or employment records is being requested the notice must be served at least (20) days before the deposition unless the notice is served by mail in which case it must be served at least twenty five (25) days before the deposition. In unlawful detainers the notice must be served at least five (5) days before the deposition, ten (10) days if served by mail.

Attorneys or parties in California who wish to view a portion of a deposition notice with request for production of documents for a natural person can use the link shown below.

Sample deposition notice for individual in California
 
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 235 sample legal documents. Visit his website at LegalDocsPro website and his Facebook page at Facebook page

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: Subscribe to FREE weekly newsletter

Copyright 2013 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.

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.

Answer to complaint in California

An answer to a complaint in California is the topic of this blog post.  The term complaint is also applicable to a cross-complaint as well.

http://www.legaldocspro.net/blog/answering-a-complaint-in-california/


Wednesday, November 13, 2013

Filing a motion to vacate a void default judgment in California under Code of Civil Procedure section 473(d)

Filing a motion to vacate a void default judgment in California under Code of Civil Procedure section 473(d) is the topic of this blog post. Proper use of this motion is very useful to a defendant against whom a void judgment has been entered.

A judgment can be void as a matter of law for several reasons including, (1) lack of subject matter jurisdiction, (2) lack of personal jurisdiction, (3) lack of or improper service of summons, (4) default improperly entered, and (5) a default judgment exceeding the amount demanded in the complaint.

Code of Civil Procedure section 473(d) states that, "The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order."

It must be noted that in order to obtain relief under Code of Civil Procedure section 473(d),  the judgment must be considered a void judgment, and not merely a voidable judgment.

"A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable." In re Marriage of Goddard (2004) 33 Cal.4th 49, 56.

A California Court of Appeal has held that a judgment is void if the court lacked jurisdiction over the parties in cases where the defendant was not validly served with a summons.

If a judgment is in fact void, there is no time limit mentioned for a party to file a motion to set aside the void judgment.

Under Code of Civil Procedure section 473, subdivision (b), a motion to vacate a default and default judgment must be brought within six months of entry of the default judgment. Section 473, subdivision (d) allows a trial court to set aside a void judgment without mentioning a time limit. Lee v. An (2008) 168 Cal.App.4th 558, 563.

Note that the Court in Lee v. An ruled that the resulting judgment was voidable, not void. See below.

If the court has jurisdiction over the parties and subject matter but acts "in excess of its jurisdiction," its judgment is voidable, not void. The difference is that in order to set aside a voidable judgment, a party must act before it becomes final. Thereafter, the judgment may be entitled to res judicata effect. Lee v. An supra at 565–566—where terminating sanction imposed without proper notice, resulting judgment was voidable, not void, and could not be set aside under CCP § 473(d) after it became final.

If a party did not have actual or constructive notice of the lawsuit then the judgment is void.  Lack of actual or constructive notice of proceedings (e.g., because papers served on defendant's attorney who had been suspended by State Bar and thus had no authority to represent defendant). Lovato v. Santa Fe Int'l Corp. (1984) 151 Cal. App.3d 549, 553.

And if the plaintiff did not serve the statement of damages required in personal injury and death actions the judgment is void. See Heidary v. Yadollahi (2002) 99 Cal. App. 4th 857, 862, the court found the default improperly entered for failure to appear at trial.

Of course lack of or improper service of summons is likely the most common reason for a judgment to be void as a matter of law, particularly when the defendant has not been personally served.

The law in California is well settled that personal service is the preferred means of service to notify a defendant of the commencement of a lawsuit.

Any other form of service other than personal service is known as substituted or constructive service, depending on the method used. And in using substituted or constructive service, strict compliance with the letter and spirit of the statutes is required as has been stated by the California Supreme Court over 100 years ago.

The United States Supreme Court has ruled that a void judgment must be set aside regardless of the merits of the underlying lawsuit. This was in a case where there was never a valid service of summons.

A California Court of Appeal has ruled that lack of personal jurisdiction renders a default judgment void in a case involving a nonresident of California.

 Lack of personal jurisdiction renders a default judgment void, so that it may be vacated at any time. Strathvale Holdings v. E.B.H. (2005) 126 Cal.App. 4th 1241, 1249, judgment was not affected by a nonresident's failure to bring a motion to quash.

Attorneys or parties in California who would like to view a portion of a sample motion to vacate a void judgment in California can click below to purchase a sample motion complete with a memorandum of points and authorities with citations to case law and statutory authority that is sold by the author.

Sample motion to vacate void judgment in California

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 235 sample legal documents. Visit his website at LegalDocsPro website and his Facebook page at Facebook page

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:  Subscribe to FREE weekly newsletter

Copyright 2013 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.

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.

 

 

 

Filing a motion for change of venue in California

http://www.legaldocspro.com/blog/requesting-a-change-of-venue-in-california/

Filing a motion for judgment on the pleadings by a defendant in California

Filing a motion for judgment on the pleadings by a defendant in the State of California is the topic of this blog post.  Statutory authority for a motion for judgment on the pleadings in California is found in California Code of Civil Procedure section 438 which states in pertinent part that, "A party may move for judgment on the pleadings on the following grounds, if the moving party is a defendant that the complaint does not state facts sufficient to constitute a cause of action against the defendant."

A motion for judgment on the pleadings has the same function as a general demurrer but can be made even after the time for demurrer has expired. Except as provided by statute, the rules governing demurrers apply. Note that a motion for judgment on the pleadings may not be made on the grounds of uncertainty or any other ground for special demurrer.

The rules for pleading that are so commonly used in demurrers to complaints are also applicable to motions for judgment on the pleadings directed to a complaint. Significantly, a pleading must allege facts and not mere conclusions and must allege each and every element required to state a particular cause of action.

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 (1992).

Therefore, if a defendant has been served with a complaint containing causes of action which fails to allege each and every element required to state that particular cause of action, then filing a motion for judgment on the pleadings is the correct procedure, assuming that the time for demurrer has already expired. Note that once an answer has been filed by the defendant, a demurrer cannot be filed.

California Code of Civil Procedure § 438(e) states that, "No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits."

Despite the language in California Code of Civil Procedure § 438 regarding time limits, and even though said statute was enacted in 1994, several California Courts have ruled that a motion for judgment on the pleadings may be made at any time prior to the trial, or at the trial itself.

A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself. Stoops v. Abbassi (2002) 100 Cal. App. 4th 644, 650, see also Smiley v. Citibank (South Dakota) N.A. (1995) 11 Cal.4th 138, 145, fn. 2—"common law motion for judgment on the pleadings" upheld despite fact CCP § 438 had been enacted during course of proceedings.

A very persuasive legal argument can be made to support the conclusion that a motion for judgment on the pleadings may be made at any time as the law is clear that the grounds for a general demurrer are never waived. See California Code of Civil Procedure § 430.80.

However, in the author’s experience some judges do in fact adhere to a strict interpretation and will deny a motion for judgment on the pleadings that is not filed within the time limits specified in California Code of Civil Procedure § 438(e).

Attorneys or parties in California who would like to view a portion of a sample motion for judgment on the pleadings to be used by a defendant can click below to purchase a sample motion complete with a memorandum of points and authorities with citations to case law and statutory authority that is sold by the author.

Sample motion for judgment on the pleadings for Defendant in California

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 235 sample legal documents. Visit his website at LegalDocsPro website and his Facebook page at Facebook page

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:  Subscribe to FREE weekly newsletter

Copyright 2013 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.

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.

Objecting to a defective deposition notice in California

Objecting to a defective deposition notice in the State of California is the topic of this blog post. There are very specific requirements in California regarding the contents and service of a deposition notice. As a result, any party who has been served with a notice of deposition should carefully review it to determine if it does in fact meet California requirements for a deposition notice.

Any review should be done as soon as a notice of deposition is received as the law in California states that, unless a party promptly objects to any defects in the contents and service of a deposition notice, they have waived any right to object unless they serve an objection at least three (3) calendar days before the date of the deposition on the party that served the deposition notice, as well as all other parties who have appeared in the litigation.

The relevant code section in California for objections to deposition notices is Code of Civil Procedure § 2025.410 which states that,

" (a) Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.

(b) If an objection is made three calendar days before the deposition date, the objecting party shall make personal service of that objection pursuant to Section 1011 on the party who gave notice of the deposition. Any deposition taken after the service of a written objection shall not be used against the objecting party under Section 2025.620 if the party did not attend the deposition and if the court determines that the objection was a valid one.

(c) In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. The taking of the deposition is stayed pending the determination of this motion.

(d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to quash a deposition notice, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. "

Attorneys or parties in the State of California who would like to view a portion of a sample objection to a California deposition notice sold by the author can use the link shown below.

Sample objection to California Deposition Notice

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents.



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 LegalDocsPro website and his Facebook page at Facebook page

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:  Subscribe to FREE weekly newsletter

Copyright 2013 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.

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.

Motion to enforce a settlement agreement in California pursuant to Code of Civil Procedure section 664.6

http://www.legaldocspro.com/blog/enforcing-a-settlement-agreement-in-california/

Filing a motion for judgment on the pleadings by a plaintiff in California

Filing a motion for judgment on the pleadings by a plaintiff in California is the topic of this blog post.  The statutory authority for a motion for judgment on the pleadings is found in California Code of Civil Procedure section 438 which states in pertinent part that, "A party may move for judgment on the pleadings on the following grounds, if the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint."

A motion for judgment on the pleadings has the same basic function as a general demurrer but can be made even after the time for demurrer has expired. Except as provided by statute, the rules governing demurrers apply. It should be noted that a motion for judgment on the pleadings may not be made on the grounds of uncertainty or any other ground for special demurrer.

This means that the rules for pleading that are so commonly used in demurrers to complaints are also applicable to motions for judgment on the pleadings directed to a complaint, as well as demurrers to answers. Significantly, a pleading must allege facts and not mere conclusions.

In FPI Development, Inc vs. A1 Nakashima, (1991) 231 Cal.App.3d 367, 384, the court held that the affirmative defenses pled in an answer to a complaint must be pled in the same fashion, and with the same specificity, as a cause of action in a complaint.

Therefore if the answer consists, as most do, of "boilerplate" affirmative defenses, then filing a motion for judgment on the pleadings is the correct procedure, if the time to file a demurrer to the answer has expired. Note that the time period for filing a demurrer to an answer is just ten (10) calendar days following service of the answer.

California Code of Civil Procedure § 438(e) states that, " No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits."

Despite the language in California Code of Civil Procedure § 438 regarding time limits, and even though that code section was enacted in 1994, many California Courts have ruled that a motion for judgment on the pleadings may be made at any time prior to the trial, or at the trial itself.

A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself." Stoops v. Abbassi (2002)100 Cal. App. 4th 644, 650; see also Smiley v. Citibank (South Dakota) N.A. (1995) 11 Cal.4th 138, 145, fn. 2—"common law motion for judgment on the pleadings" upheld despite fact CCP § 438 had been enacted during course of proceedings.

A very persuasive legal argument can be made to support the conclusion that a motion for judgment on the pleadings may be made at any time as the law is clear that the grounds for a general demurrer are never waived. See California Code of Civil Procedure § 430.80.

However, in the author’s experience some judges do in fact adhere to a strict interpretation and will deny a motion for judgment on the pleadings that is not filed within the time limits specified in California Code of Civil Procedure § 438(e).

Attorneys or parties in California who would like to view a portion of a sample motion for judgment on the pleadings to be used by a plaintiff complete with a memorandum of points and authorities with citations to case law and statutory authority that is sold by the author can use the link shown below.

Sample motion for judgment on the pleadings for California plaintiff

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents.



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 LegalDocsPro website and his Facebook page at Facebook page

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:  Subscribe to FREE weekly newsletter

Copyright 2013 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.

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.




Tuesday, November 12, 2013

Filing a motion to strike an answer in California


http://www.legaldocspro.net/blog/motion-to-strike-an-answer-in-california/

Requesting a statement of damages in California pursuant to Code of Civil Procedure section 425.11

Requesting a statement of damages in California pursuant to Code of Civil Procedure section 425.11 is the topic of this blog post. A request for a statement of damages can be made in any California personal injury or wrongful death action. The request for statement of damages is authorized under Section 425.11 of the Code of Civil Procedure, and is served on the plaintiff by a defendant, the request should also be served on all other parties to the action who have made an appearance.

The defendant is required to provide a statement of damages setting forth the nature and amount of the damages being sought against the defendant who served the request.

The statement of damages must be served within 15 calendar days after service of the request, this time period is extended to 20 calendar days if the request is served by mail. The request for statement of damages should not be filed with the Court, unless a motion to compel a response has been filed with the Court, or the Court has ordered otherwise.

Requesting a statement of damages is a great tool that should be used by any defendant in California who has been served with a complaint that contains causes of action for personal injury or wrongful death. The request can be served at any time after being served with the summons and complaint but is typically served along with the answer to the complaint.

Attorneys or parties in California who would like to download a FREE sample request for statement of damages created by the author can use the link shown below.

FREE sample request for statement of damages

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents.



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 LegalDocsPro website and his Facebook page at Facebook page

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:  Subscribe to FREE weekly newsletter

Copyright 2013 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.

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.

Thursday, November 7, 2013

Filing a Heggstad petition in California

Filing a Heggstad petition in California is the topic of this blog post. 


http://www.legaldocspro.net/blog/filing-a-heggstad-petition-in-california/

Filing a motion to vacate a default judgment in California under California Code of Civil Procedure Section 473

http://www.legaldocspro.com/blog/discretionary-relief-from-a-default-judgment-in-california/

Opposing a motion for judgment notwithstanding the verdict (JNOV) in California

Opposing a motion for judgment notwithstanding the verdict (JNOV) in California is the topic of this blog post.  A JNOV motion in California can be opposed on the grounds that substantial evidence supports the verdict so the JNOV motion must be denied, or that the JNOV motion is not timely.

Anyone served with a JNOV motion in California should first make sure that the JNOV motion is timely as it must be filed and served within 15 days of the date of mailing notice of entry of judgment by the clerk of the court, or service upon the moving party by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest.   This time period cannot be extended by any court or any stipulation.  See Code of Civil Procedure sections 629 and 659.

If the JNOV motion is timely it should then be determined if there is any substantial conflict in the evidence as that is a primary requirement for a JNOV motion in California.

A California Court of Appeal has held that a court must deny a JNOV motion if it finds substantial evidence to support the verdict.  The court must also presume that all of the evidence supporting the verdict is true in ruling on the JNOV motion.

A JNOV motion is fundamentally different from a motion for new trial as the California Supreme Court has stated that the court cannot reweigh the evidence and cannot judge the credibility of witnesses. 

The California Supreme Court has also stated in another case that not only must the court disregard conflicting evidence, it must also draw all reasonable inferences in the winning party's favor.

A California Court of Appeal also stated in a case from over 30 years ago that a JNOV motion is properly denied even when most of the evidence supporting the verdict is circumstantial.

Attorneys or parties in California who would like to view a portion of a sample opposition to a California motion for judgment notwithstanding the verdict that contains a memorandum of points and authorities, proposed order and proof of service by mail that is sold by the author can use the link shown below.


The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents.



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 LegalDocsPro website and his Facebook page at Facebook page

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: Subscribe to FREE weekly newsletter

Copyright 2013 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.

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.

Renewing a motion in California under Code of Civil Procedure section 1008(b)

Renewing a motion in California under Code of Civil Procedure section 1008(b) is the topic of this blog post.   Renewed motions have a very distinct advantage over motions for reconsideration as they are not subject to the 10 day statutory time limitation imposed on motions for reconsideration.

The main disadvantage of a renewed motion is the fact that it can only by brought by the party who filed the original motion unlike a motion for reconsideration which can be brought by any party affected by an order. 

Renewed motions in California are authorized by and governed by Code of Civil Procedure § 1008(b) which states in pertinent part that “A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

Note that the party filing the renewed motion must make a showing of new or different facts, circumstances or law since the date of the original order that the moving party was not aware of and could not have discovered with reasonable diligence. Failure to comply with the statutory provisions may result in denial of the renewed motion.

Several decisions of the California Courts of Appeal have stated that a decision on a motion is not res judicata, and a trial court has jurisdiction to consider a renewal of a prior motion.

Attorneys or parties in California who would like to view a portion of a sample renewed motion for California sold by the author that contains brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, a sample declaration and proof of service by mail can use the link shown below.

Sample California renewal of motion
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents.



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 LegalDocsPro website and his Facebook page at Facebook page

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: Subscribe to FREE weekly newsletter

Copyright 2013 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.

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.

Tuesday, November 5, 2013

Retaliatory eviction defense in California

Retaliatory eviction defense in California is the topic of this blog post. Retaliatory eviction is a powerful affirmative defense that a tenant in California tenant can assert to an unlawful detainer (eviction) complaint.

The California Supreme Court has held that if a tenant proves retaliation by a preponderance of the evidence, he or she is entitled to a judgment of possession. And a California residential tenant who successfully defends an eviction complaint on the ground of retaliatory eviction is entitled to recover both actual and punitive damages as well as retaining possession of the property pursuant to Civil Code § 1942.5.

The law in California provides that residential landlords cannot take certain actions in retaliation for the tenant’s exercising his or her legal rights. Actions that can be considered retaliatory include increasing rent, decreasing services or causing a tenant to quit the rental property involuntarily.

The statutory provisions regarding retaliatory eviction in California are found in Civil Code §1942.5. A California tenant cannot waive his or her rights under Civil Code §1942.5.

A California tenant has a valid affirmative defense if he or she can show that the landlord retaliated against him or her in violation of Civil Code § 1942.5.

The claimed retaliatory action must have occurred within 180 days of the tenant’s lawful exercise of rights and the statutory defense may be used only once in a 12-month period pursuant to Civil Code § 1942.5.

The California Supreme Court has held that both residential and commercial tenants have a common-law affirmative defense for retaliatory actions by the landlord.  See Barela v Superior Court (Valdez) (1981) 30 Cal. 3d 244, 251.

However it is not retaliatory eviction if a landlord in good faith communicates his or her belief that the tenant is violating a term of the lease. See Morrison v Vineyard Creek (2011) 193 Cal.App 4th 1254, 1268–1271, in that case the tenant had exercised their legal right to conduct a family child-care home on the premises.

Attorneys or parties in California who would like to view a portion of a sample answer to a California eviction complaint that contains 15 affirmative defenses including retaliatory eviction that is sold by the author can use the link shown below.

 Sample answer to eviction complaint for California

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 235 sample legal documents. Visit his website at LegalDocsPro website and his Facebook page at Facebook page

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:  Subscribe to FREE weekly newsletter

Copyright 2013 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.

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.

Motion to enforce settlement agreement in California dissolution (divorce)

http://www.legaldocspro.com/blog/motion-to-enforce-a-settlement-agreement-in-a-dissolution-case-in-california/

Filing a motion to quash service of summons in California pursuant to Code of Civil Procedure section 418.10


http://www.legaldocspro.net/blog/motion-to-quash-service-in-california/



Monday, November 4, 2013

Vacate a divorce judgment in California for failure to comply with disclosure requirements

Vacating a judgment entered in a California dissolution (divorce) case is the topic of this blog post.  This blog post will mainly discuss vacating the divorce judgment pursuant to California Family Code section 2122(f) for failure to comply with the disclosure requirements set forth in the California Family Code.

The California Family Code requires that parties comply with certain disclosure requirements before any judgment can be entered. For example a preliminary declaration of disclosure must be served in every case pursuant to Family Code § 2104.
The preliminary declaration of disclosure cannot be waived under any circumstances. Failure of a party to comply with this disclosure requirement requires that the judgment be set aside.

A final declaration of disclosure is not required in a default judgment case pursuant to Family Code § 2110. In all other cases a final declaration of disclosure is required unless both parties mutually waive the final declaration of disclosure. See Family Code § 2105.

Family Code § 2107(d) states that, “If a court enters a judgment when the parties have failed to comply with all disclosure requirements of this chapter, the court shall set aside the judgment. The failure to comply with the disclosure requirements does not constitute harmless error.”

However there are time limitations on requesting that a judgment be vacated. An order to show cause or notice of motion must be filed within one year after the date on which the moving party  discovered, or should have discovered, the failure to comply.

Family Code § 2122(f) states that a Judgment may be set aside for, “Failure to comply with the disclosure requirements of Chapter 9 (commencing with Section 2100) An action or motion based on failure to comply with the disclosure requirements shall be brought within one year after the date on which the complaining party either discovered, or should have discovered, the failure to comply.”

Attorneys or parties in California who would like to view a portion of a sample points and authorities in support of an order to show cause or notice of motion to vacate a divorce judgment under Code of Civil Procedure section 473(d) and Family Code section 2122(f) can use the link shown below.

Sample motion to vacate California divorce judgment

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 235 sample legal documents. Visit his website at LegalDocsPro website and his Facebook page at Facebook page

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:  Subscribe to FREE weekly newsletter

Copyright 2013 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.

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.

 

 

 

 

Modifying a child support order in California

Modifying a child support order in California is the topic of this blog post.  Statutory authority for modifying a California child support order is found in California Family Code section 3651(a) which states that “A support order may be modified at any time as the Court determines to be necessary.”  

Any modification of a child support order in California requires that an order to show cause or notice of motion be filed unless a stipulation and order is signed by both parties and filed with the Court.

The general rule in California is that a material change of circumstances must be shown before a child support order can be modified either upward or downward.

California law states that both parents of a minor child are equally responsible to support the minor child in California.  “The father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the child’s circumstances.” See Family Code § 3900.  This rule applies to both original orders for child support and modifications.

The California Courts of Appeal have held that an order reducing child support payments can issue in cases where there is an increase in the amount of time the child spends in the obligor parent's custody such as increased visitation. This is allowable under the theory that all or part of the day-to-day needs of the minor child are being discharged directly by the obligor parent.

Case and statutory law in California both state that the parents' actual earnings are not necessarily controlling on the question of ability to pay.  "The court may, in its discretion, consider the earning capacity of a parent in lieu of the parents' income, consistent with the best interests of the children."  Family Code § 4058(b).

This means that in the appropriate situation a California Court can consider the earning capacity of a parent instead of that parent’s actual income.  Appropriate cases would be where the other parent is capable of working despite claiming to be unemployed or underemployed but refuses to work, or the income of the other parent has increased substantially since the date of the last support order.  A deliberate attempt to avoid child support obligations is not required.

And the California Courts of Appeal and the California Supreme Court have held that the only restriction imposed by the California child support statutes is that consideration of earning capacity be consistent with the best interests of the minor child.

In one case decided by a California Court of Appeal the Court of Appeal found no abuse of discretion in refusing to change the monthly income figure of the wife to zero where the facts in the case clearly showed that she quit work upon remarrying but she presented no evidence of any inability to find replacement employment or that her loss of income was otherwise justifiable under the facts in that case.

In another California Court of Appeal case the Court found that the husband had the opportunity to work and imputed income to him on the grounds that he was an attorney who could apply his skills and training to produce income.

Parties considering requesting a modification of child support in California should be sure to include enough facts and evidence in their moving papers to show a material change of circumstances since the date of the last child support order.

Attorneys or parties in California who would like to view a portion of a sample points and authorities in support of an order to show cause to modify child support in California that is sold by the author can use the link shown below.


The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 235 sample legal documents. Visit his website at LegalDocsPro website and his Facebook page at Facebook page

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:  Subscribe to FREE weekly newsletter

Copyright 2013 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.

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.

 

 

Defense of constructive eviction in California

The defense of constructive eviction in California is the topic of this blog post. The affirmative defense of constructive eviction is essentially a breach of the covenant of quiet enjoyment that is implied in every rental agreement.  Tenants in California may assert constructive eviction as an affirmative defense to an unlawful detainer (eviction) complaint when the actions or omissions of the landlord interfere so much with the right of the tenant to peaceful and beneficial possession of the rental unit that the unit or a portion of it becomes uninhabitable. 

Examples from published California cases include cases where extreme rain damage to one or more rooms of a unit was caused by a leaky roof that the landlord refused to repair;  very noisy renovations at the premises at unreasonable hours; and persistent harassment of the tenant by the landlord.

And constructive eviction may be asserted as an affirmative defense by all California tenants including commercial tenants.

In a California Court of Appeal case that involved the issue of parking spaces being necessarily useful for occupancy by the lessee and were expressly or by implication included in the lease, the Court held that, “It is well established that the intention of the parties as to just what property was to be occupied as essential to the use and enjoyment of the described premises is to be ascertained from the circumstances at the time the lease is entered into.” Seirad v. Lilly (1962) 204 Cal.App. 2d 770, 773. (citing text).

Seirad v. Lilly, supra involved a case where parking spaces adjacent to front of motel office and in private driveway on north side of lessee's liquor store, space for lessee's compressor plant in the rear and free water and additional storage space in rear for liquor stock, were reasonably necessary for useful occupancy by lessee and were expressly or by implication included in lease, the Court found that the lessee was constructively evicted from leased premises when the lessor sold motel premises without any reservation of the parking space and without providing water and additional storage space and without reservation of space for compressor.

In Clark v. Spiegel (1971) 22 Cal.App.3d 74, 78, a continued breach of a covenant to maintain parking lot lights constituted a constructive eviction of a tenant whose Laundromat business was adversely affected by a dark parking lot.      

Attorneys or parties in California who would like to view a portion of a sample answer to a California eviction complaint that contains 15 affirmative defenses including constructive eviction that is sold by the author can use the link shown below.

Sample answer to eviction complaint for California

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 235 sample legal documents. Visit his website at LegalDocsPro website
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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.

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