Motion to quash service in California divorce

A motion to quash service in a California divorce case is the topic of this blog post. This post will discuss using the grounds that the service on the defendant was defective as the Court does not acquire jurisdiction over a defendant unless proper service of the summons and complaint has been made.  This applies even though the defendant may be a resident of California.

Code of Civil Procedure section 418.10 states in pertinent part that a defendant may file a motion to quash service of summons on the ground of lack of jurisdiction of the Court over him or her.  The term respondent is used in a California divorce case but this blog post will use the term defendant instead as the issues discussed herein apply equally to either a defendant or a respondent.

A motion to quash service may also be filed in a legal separation, nullity or other family law case in California pursuant to Family Code section 210 which states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

There are certain procedural requirements that must be met in filing a motion to quash service in California. Any motion to quash service must be filed within 30 calendar days from the alleged date of service unless a Court ordered extension of time to plead has been granted or a stipulation to for an extension of time to plead has been entered into.

The motion to quash must be filed before any response is filed as it is considered a "special appearance" meaning that it does not admit the Court’s jurisdiction over the defendant.  Failure to timely file a motion to quash constitutes a waiver of any objection to the service of process pursuant to Code of Civil Procedure section 418.10(e)(3).  The hearing on the motion must be set within 30 days from the date of filing of the motion to quash pursuant to Code of Civil Procedure section 418.10(b). 

The law in California is well settled that once a defendant files a motion to quash service that the plaintiff has the burden of proving that the service was valid.

And the Courts in the State of California have ruled that a defendant is under no duty to respond to a defectively served summons until a plaintiff shows that service is valid.

The statutes allowing what is known as "substituted service" are strictly construed. Therefore the substituted service must be made at the address where the defendant currently lives even service made at a close relative’s house can be ineffective.

Attorneys or parties in California who wish to view a portion of a sample 10 page motion to quash service in a divorce case complete with brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service sold by the author can use the link shown below.

Sample motion to quash service in California divorce

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 250 sample legal documents for sale

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 for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

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.

 

Directed verdict motion in unlawful detainer (eviction) case in California

A directed verdict motion in an unlawful detainer (eviction) case in California is the topic of this blog post.   A directed verdict motion in California can only be filed in cases involving a jury trial and is authorized by Code of Civil Procedure section 630. The filing of a directed verdict motion in a California eviction case is authorized by Code of Civil Procedure section 1177 which states that, “Except as otherwise provided in this Chapter the provisions of Part II of this Code are applicable to, and constitute the rules of practice in the proceedings mentioned in this Chapter.”

A directed verdict motion is somewhat similar to a motion for nonsuit in that the motion essentially operates as a demurrer to the evidence presented by the opposing party. Either motion will be granted if there is no substantial evidence to support the claim or defense of the party opposing the motion.  But there are some between the two motions including that:

A motion for directed verdict generally lies only after all the parties have completed presentation of evidence in a jury trial. Nonsuit motions are usually made after the plaintiff's evidence is concluded.

Although usually filed by a defendant a motion for directed verdict may also be brought by a plaintiff.

A California motion for directed verdict is used in order to achieve a judgment as a matter of law. The judgment that is requested would be in favor of one (or more) parties on all (or some) of the issues in that particular case. The motion for directed verdict is filed after all parties present their evidence and before the matter goes to the jury. The granting of the motion may dismiss a party or decide some (or all) of the issues before the matter goes to a jury. After entry of any judgment in accordance with a directed verdict, the prevailing party can recover its costs of suit pursuant to Code of Civil Procedure § 1038.

Note that a motion for directed verdict in California is only appropriate when it is clear from the evidence presented, that the party against whom the motion is made, typically a plaintiff or cross-complainant, cannot meet its burden of proof of elements of its claim against the moving party. 

A common in an eviction case would be where the evidence is insufficient to sustain Plaintiff's burden of proof on the issue whether the plaintiff has standing to sue as they do not hold valid title to the property due to an invalid foreclosure, whether the plaintiff can state a valid cause of action for unlawful detainer due to a defective three-day notice, etc. 

A motion for directed verdict may be filed even if a motion for nonsuit was previously denied by the court.

In ruling on a motion for directed verdict, the court determines only whether there is no evidence to support a verdict against the moving party. On a motion for directed verdict, the court's decision will operate as an adjudication on the merits unless otherwise ordered by the court, however the jury must still render a verdict before the decision on the motion for directed verdict can be incorporated in the final judgment.

A California Court of Appeal case has stated that filing a motion for directed verdict is proper when there is no conflict in the evidence, and there is substantial evidence that supports a verdict in favor of the moving party.

Attorneys or parties in California who would like to view a portion of a 14 page sample motion for directed verdict including a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proposed order sold by the author can use the link shown below.

Sample motion for directed verdict in California eviction

 

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 250 sample legal documents for sale

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 for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

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 a California divorce case

Renewing a motion in a California divorce case is the topic of this blog post.   Renewing a motion in California is authorized to the pursuant to the provisions of Code of Civil Procedure section 1008(b) and has one very useful advantage compared to a motion for reconsideration in that it is not subject to the 10 day statutory time limitation imposed on motions for reconsideration.  However there is a disadvantage in renewing motion in that they can ONLY by brought by the party who filed the original motion.

Code of Civil Procedure § 1008(b) 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.”

A renewal of a motion may be filed in a divorce, legal separation or nullity case in California under the provisions of Family Code § 210 which states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

Certain requirements must be met in order to successfully renew a motion. The party renewing the 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.  

The California Courts of Appeal have stated in several decisions that a ruling on a motion is not res judicata, and a trial court has jurisdiction to consider a renewal of a previous motion.

Attorneys or parties in California who would like to view a portion of a 10 page sample renewal of motion for a California divorce 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 can use the link shown below.

Sample renewal of motion for California divorce

 

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

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 for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

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.

Code of Civil Procedure section 397.5 change of venue motion in California divorce case

http://www.legaldocspro.com/blog/motion-for-change-of-venue-in-a-divorce-case-in-california/

Nonsuit motion in unlawful detainer (eviction) case in California

A nonsuit motion in an unlawful detainer (eviction) case in California is the topic of this blog post.  A motion for nonsuit is authorized by Code of Civil Procedure section 581c and may be filed in an eviction case in California as Code of Civil Procedure § 1177 states that, “Except as otherwise provided in this Chapter the provisions of Part II of this Code are applicable to, and constitute the rules of practice in the proceedings mentioned in this Chapter.”

A motion for nonsuit can be helpful in the right situations as it allows a defendant to challenge the sufficiency of the evidence offered by a plaintiff at an early stage of the trial while still preserving the right to present their defense if the motion is denied. 

A defendant may not move for nonsuit until after plaintiff has completed their opening statement, or has presented their evidence in a jury trial.

Several California Court of Appeal decisions have held that a motion for nonsuit functions as a demurrer to the evidence offered by plaintiff. 

Code of Civil Procedure § 581c states that,

“(a) Only after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit.

(b) If it appears that the evidence presented, or to be presented, supports the granting of the motion as to some but not all of the issues involved in the action, the court shall grant the motion as to those issues and the action shall proceed as to the issues remaining. Despite the granting of the motion, no final judgment shall be entered prior to the termination of the action, but the final judgment in the action shall, in addition to any matters determined in the trial, award judgment as determined by the motion herein provided for.

(c) If the motion is granted, unless the court in its order for judgment otherwise specifies, the judgment of nonsuit operates as an adjudication upon the merits.

(d) In actions which arise out of an injury to the person or to property, when a motion for judgment of nonsuit was granted on the basis that the defendant was without fault, no other defendant during trial, over plaintiff’s objection, may attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion.”

A motion for nonsuit in a California eviction case could be made on several grounds including that, as a matter of law, the evidence is insufficient to sustain Plaintiff's burden of proof on the issue whether the plaintiff has standing to sue as they do not hold valid title to the property due to an invalid foreclosure, whether the plaintiff can state a valid cause of action for unlawful detainer due to a defective three-day notice, etc.

The trial judge has very limited discretion in ruling on a motion for nonsuit as the court must rule solely on the basis of the evidence offered by plaintiff.  And in ruling on a motion for nonsuit after the opening statement, the court can only consider only the matters stated by plaintiff in the opening statement and any reasonable inferences that may be drawn. It should be stressed that the California Supreme Court ruled over 100 years ago that granting nonsuit after an opening statement is disfavored and should be avoided unless the evidence clearly shows that no case can be made out.

The discretion is very similar in ruling on a motion for nonsuit after plaintiff has presented their case, in that case only the evidence submitted by plaintiff and any reasonable inferences that may be drawn can be considered.

Most motions for nonsuit are made orally and without any prior notice being provided to plaintiff.  Although supporting papers are not generally required, a motion for nonsuit is often based on points and authorities. Thus a written motion may be more effective.  And a nonsuit motion after plaintiff has presented their case may be based on exhibits received in evidence and transcripts of testimony.

Parties considering moving for nonsuit should check the local rules and also contact the clerk of the department where the trial will be held to determine if there are any specific requirements that must be followed.

Any motion for nonsuit should state the precise grounds on which the motion is made, and should clearly indicate the defects in the plaintiff's case clearly and with particularity.

As should be obvious by now, the requirements for a motion for nonsuit are quite restrictive. 

However a motion for nonsuit does have one huge advantage in that it operates as an adjudication upon the merits “unless the court in its order for judgment otherwise specifies.” See Code of Civil Procedure § 581c.

A defendant who prevails on a motion for nonsuit is entitled to recover their costs. See Code of Civil Procedure § 1033.

A key point to remember is that anyone considering a motion for nonsuit after  plaintiff's opening statement should consider the fact that, if the defects identified are easily correctable, plaintiff will not only be alerted, they will simply oppose the motion and stress that motions for nonsuit are disfavored which they clearly are.

Attorneys or parties in California who would like to view a sample 14 page motion for nonsuit in an eviction case containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, a sample declaration and proposed order granting motion for nonsuit can use the link shown below. 

Sample motion for nonsuit in California eviction

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 legaldocuments for sale

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 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.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

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 vacate divorce settlement or stipulation in California

A motion to vacate a divorce settlement or stipulation in California is the topic of this blog post.  A motion to vacate a divorce settlement or stipulation in California is filed under the provisions of Code of Civil Procedure section 473 and Family Code section 210. A motion to vacate a settlement or stipulation can also be filed in a California legal separation or a nullity case.

The grounds for vacating a divorce settlement or stipulation in California include mistake, inadvertence, excusable neglect, fraud, mistake of law or fact, where the facts stipulated have changed or there has been a change in the underlying that could not have been anticipated, or where special circumstances exist rendering it unjust to enforce the stipulation.  Several decisions of the California Courts of Appeal have stated that the issue of fairness can also be considered in appropriate situations where a motion to vacate a settlement or stipulation has been filed.

Code of Civil Procedure Section 473 states in pertinent part: “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.”

A motion to vacate a divorce settlement or stipulation in California may also be filed in other family law cases as well pursuant to Family Code § 210 which states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

Note that any motion to vacate a divorce settlement or stipulation in California should be made as soon as possible once a party discovers the mistake of fact or law, fraud, etc as the motion must be filed within a reasonable period of time in no case exceeding six months once the stipulation or settlement has been signed or entered.   The more quickly the motion is filed the better as section 473 is applied liberally where there is a prompt request for relief and the opposing party will not suffer any prejudice if relief is granted.

The moving party should be sure to include enough detailed facts in their supporting declaration to support the motion as well as attaching any relevant exhibits.

Attorneys or parties in California who would like to view a portion of a 11 page sample motion to vacate a divorce settlement or stipulation containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can use the link shown below.

Sample motion to vacate divorce settlement or stipulation in California

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
 
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 for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

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.

New trial motion in California unlawful detainer (eviction) case

http://www.legaldocspro.com/blog/motion-for-a-new-trial-in-an-unlawful-detainer-in-california/

Reconsideration motion in California dissolution (divorce) case

A reconsideration motion in a California dissolution (divorce) case is the topic of this blog post.  Parties in California who wish to request reconsideration of an order may file a motion for reconsideration pursuant to Code of Civil Procedure section 1008(a) which is the statute that authorizes reconsideration of an order in California.  A motion for reconsideration can also be filed in a legal separation or nullity case in California as well as a divorce case.

A motion for reconsideration in California can be useful if a party is aware of the limitations involved.  The first and most important limitation is the 10 day deadline for filing the motion. A statutory motion for reconsideration must be filed within 10 days after service on the party of written notice of entry of the order. The second limitation is the requirement that the party moving for reconsideration of an order 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.

Code of Civil Procedure § 1008(a) states that “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state 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.”

A motion for reconsideration may made in a California divorce or other family law case pursuant to Family Code § 210 which states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

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 reconsider a prior ruling.

A motion for reconsideration is only applicable to interim orders, not final orders.  Note that any party affected by an order may file a motion as reconsideration is not limited to the party who filed the original application for an order.

Attorneys and parties in California who would like to view a portion of a sample 11 page motion for reconsideration containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can use the link shown below.

Sample motion for reconsideration for California divorce

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
 
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 for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

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.

Judgment notwithstanding the verdict in California unlawful detainer (eviction) case

Judgment notwithstanding the verdict (JNOV) in a California unlawful detainer (eviction) case

is the topic of this blog post.  A motion for JNOV in California is authorized under Code of Civil Procedure section 629. JNOV motions are much more limited in scope than a motion for new trial however they are an even more powerful tool if used in the right situations as a JNOV motion challenges the legal sufficiency of the evidence at trial, thus prevailing on the motion results in a new and different judgment in the moving party's favor.

A JNOV differs from a motion for a new trial in that a JNOV motion consists of a single document. The entire motion, including the notice of motion and memorandum of points and authorities, is due at the same time as the notice of intent to move for a new trial.

Code of Civil Procedure § 629 states in pertinent part that, “The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days’ notice, or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.”

Because new trial and JNOV motions are often sought concurrently, the time limit for filing the JNOV motion is exactly the same as the time for filing a notice of intent to move for a new trial. A JNOV motion must be filed and served on all adverse parties within the period for filing a new trial notice of intent under Code of Civil Procedure Section 659 which is 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.

Because JNOV contemplates the entry of a new and different judgment, a proposed judgment should be included with the motion or be submitted at the time of hearing at the latest. Prompt compliance is critically important because the trial court has a very limited time in which to act on the motion for JNOV.

The main limitation to the JNOV is that the trial court's power to grant a motion for JNOV is severely limited. A California Court of Appeal decision states that a trial court may not grant a JNOV unless there is an actual verdict.

However if no substantial evidence supports the jury’s verdict a JNOV must be granted as one California Court of Appeal has stated that the purpose of a motion for judgment notwithstanding the verdict is not to afford a review of the jury's deliberation but to prevent a miscarriage of justice in those cases where the verdict rendered is without foundation.

Attorneys and parties in California who would like to view a portion of a sample 13 page motion for judgment notwithstanding the verdict for an eviction case containing brief instructions,  memorandum of points and authorities with citations to case law and statutory authority, proposed order granting judgment notwithstanding the verdict and proof of service by mail sold by the author can use the link shown below.

Sample motion for judgment notwithstanding the verdict for California eviction

 

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


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 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.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

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.

New trial motion in California dissolution (divorce) case

A new trial motion in a California dissolution (divorce) case is the topic of this blog post.  A new trial motion in California can also be filed in a legal separation or an annulment case as well as a divorce.  The advantage of filing new trial motion is that it permits the court to reexamine an issue of fact or law.

Motions for a new trial in a divorce case in California can be filed pursuant to Code of Civil Procedure section 657 and Family Code section 210 on several grounds including (1) irregularity in the proceedings of the court, adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial; (2) accident or surprise, which ordinary prudence could not have guarded against; (3) newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial; (4) insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law and (5) error in law, occurring at the trial and excepted to by the party making the application.

A motion for a new trial may be made in a California divorce case pursuant to Family Code

§ 210 which states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

When the application for a new trial is made for any ground mentioned in the first, second, third and fourth subdivisions of Section 657, it must be made upon affidavits; otherwise it must be made on the minutes of the court. See Code of Civil Procedure § 658. Note that the second ground would obviously not apply as a jury trial is not authorized in any divorce proceeding in California.

However, there are strict deadlines that must be met.   The first thing any party who wants to request a new trial should do is file a notice of their intention to move for a new trial and specify all of the grounds listed in section 657 that even remotely could be applicable in that particular case.  This MUST be done in a timely manner or their motion will be denied.

Code of Civil Procedure § 659 states that, “(a) The party intending to move for a new trial shall file with the clerk and serve upon each adverse party a notice of his or her intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court, or both, either:

(1) After the decision is rendered and before the entry of judgment.

(2) Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest; provided, that upon the filing of the first notice of intention to move for a new trial by a party, each other party shall have 15 days after the service of that notice upon him or her to file and serve a notice of intention to move for a new trial.

(b) That notice of intention to move for a new trial shall be deemed to be a motion for a new trial on all the grounds stated in the notice. The times specified in paragraphs (1) and (2) of subdivision (a) shall not be extended by order or stipulation or by those provisions of Section 1013 that extend the time for exercising a right or doing an act where service is by mail.”

Within 10 calendar days after filing the notice of intention to move for new trial the party must file and serve any supporting affidavits unless a stipulation or court order has been obtained extending the time period. See Code of Civil Procedure § 659a.

While not technically required a memorandum of points and authorities with citations to case law and statutory authority is strongly recommended and should be filed and served at the same time as the supporting affidavits. 

The power of the court to rule on a motion for a new trial expires 60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier, or no notice has been given, then 60 days after filing of the first notice of intention to move for a new trial. If the motion for a new trial is not determined within the 60 day period, or within that period as extended by law, the effect shall be a denial of the motion without further order of the court. See Code of Civil Procedure § 660 for more details.

Attorneys or parties in California who would like to view a portion of a sample 15 page sample motion for new trial in a California divorce case containing brief instructions, a notice of intention to move for new trial, memorandum of points and authorities with citations to case law and statutory authority and sample declaration sold by the author of this blog post can use the link shown below.

Sample motion for new trial for California divorce

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

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 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.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

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.
 

Power of attorney for financial affairs in California

A power of attorney for financial affairs in California is the topic of this blog post.  Powers of attorney in California are governed by Sections 4000 through 4545 inclusive, of the California Probate Code.  This blog post will discuss the use of a durable power of attorney for financial affairs. The term durable power of attorney refers to the fact that the powers given to the agent will continue to exist even if the person who signed the durable power of attorney becomes incapacitated and can no longer make their own decisions regarding the management of their finances and property unless the durable power of attorney provides otherwise.

A durable power of attorney can also be drafted to become what is known as a “springing power of attorney” meaning that it will not take effect until the person who signed the durable power of attorney becomes incapacitated as defined in the document.  

A durable power of attorney for financial affairs may also be customized for most situations and can grant broad and sweeping powers to the agent such as the power to manage, dispose of, sell, and convey any real and personal property, run a business, for security and financial transactions and to use the property as security if the agent borrows money on behalf of the principal. It can even grant the agent the power to prepare and file tax returns on behalf of the principal and nominate a conservator of the estate of the principal if desired.

The law in California states that a durable power of attorney in California must be dated and must be acknowledged before a notary public or signed by two witnesses. If it is signed by two witnesses, they must witness either (1) the signing of the power of attorney or (2) the principal’s signing or acknowledgment of his or her signature. A durable power of attorney that may affect real property should be acknowledged before a notary public so that it may easily be recorded with the County Recorder in all counties where any real property is located.

A durable power of attorney can be amended or changed only by executing a new durable power of attorney or by executing an amendment through the same formalities as an original. The principal retains the right to revoke or terminate any durable power of attorney at any time, so long as the principal is competent.

Executing a durable power of attorney makes good sense when a person has a trusted person whether a friend, relative or spouse who they trust and can rely on to protect their interests in the event they become incapacitated.

Attorneys or individuals in California who would like to view a portion of a sample 18 page springing durable power of attorney which was created and is sold by the author of this blog post can use the link shown below.

Sample durable power of attorney for California 

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

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 for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

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.

Health care power of attorney in California

A health care power of attorney in California is the topic of this blog post.  Health care powers of attorney are governed by Sections 4670 through 4743 inclusive, of the California Probate Code.

A health care power of attorney may be designated as a durable power of attorney for health care in reference to the fact that the powers given to the agent by the principal will continue to exist even if the person who signed the durable health care power of attorney becomes incapacitated and can no longer make their own decisions regarding their health care unless the document provides otherwise.

A health care power of attorney may include a statement of desires concerning life-prolonging treatment, services and procedures and can also include a nomination of the agent or another person to be conservator of the person for the principal is appointed.

Health care powers of attorney in California must be dated and be acknowledged before a notary public.

As with any power of attorney the decision as to whether or not to have one prepared as well as what to include should be carefully considered beforehand.

Attorneys or individuals in California who would like to view a sample durable power of attorney for health care created by the author and available for FREE download in Word format can use the link shown below.

Sample durable power of attorney for health care

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

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 for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

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.
 

 

 
 

Collection agency debt validation letter

A collection agency debt validation letter is the topic of this blog post.  Debt validation letters are authorized by the Fair Debt Collection Practices Act (FDCPA) provision found in Title 15 United States Code section 1692g(b) which allows consumers to send a written communication to any third-party debt collector such as a collection agency that their claim is disputed and validation is requested.  

Section 1692g(b) also states that if the consumer notifies the debt collector in writing within thirty days that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

You should send any debt validation letter within thirty days of receiving any communication from a debt collector as in most cases this will prevent the debt collector from any further attempts to collect the debt until they have obtained verification of the debt.

If the debt validation letter is not sent within thirty days the debt collector may continue attempts to collect the debt while they obtain verification of the debt.

Title 15 United States Code section 1692g(c) states in pertinent part that even if the consumer does not dispute the validity of a debt within the thirty day period that failure to dispute the validity of any debt may not be construed by any court as an admission of liability by the consumer.

The first thing to do after receiving any communication from a debt collector is to first determine if the debt may be valid or not as the use of a debt validation letter may not be a good idea where the debt is clearly valid as sending the letter may prompt the debt collector to not only verify the debt but also take further collection actions. However if the name of the creditor is listed on the collection agency notice and you do not recognize the name of the creditor than the use of a debt validation letter should be seriously considered.

Attorneys or parties who would like to view or download a sample debt validation letter to a collection agency created by the author and available for FREE download in Word format can use the link shown below.

Sample debt validation letter to collection agency

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

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 for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

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.
 

 

 

Credit bureau debt disputes using the Fair Credit Reporting Act

Credit bureau debt disputes using the Fair Credit Reporting Act are the topic of this blog post.  Credit bureau (CRA) debt disputes are submitted under the provisions of a pursuant to a federal law known as the Fair Credit Reporting Act (FCRA) found in Title 15 United States Code § 1681 et seq.  The FCRA was created by the United States Congress through legislation back in 1970 and has been amended several times.

The FCRA requires that any CRA who has received a debt dispute letter must conduct "a reasonable investigation" into the disputed information and remove anything they can't verify as accurate. Equifax, Experian and Transunion are popularly known as the “big three” CRA’s.  It is my personal opinion that the most effective way of disputing any debt with the credit bureaus is through the use of a detailed letter disputing the debt and providing as much information and documentation as possible along with the letter.

A recently created federal agency known as the Consumer Financial Protection Bureau accepts complaints at their website at http://www.consumerfinance.gov/complaint/ in the event that any CRA does not properly investigate or does not respond to repeated dispute letters sent by a consumer.

I cannot stress enough the critical mistake that some consumers make by submitting their debt

dispute to a CRA either online or over the telephone.  NO consumer should ever submit any debt dispute to a CRA either online or over the telephone as in most cases they will not have the opportunity to include enough information. It is true that Equifax, Experian and Transunion all prominently feature on their websites that you can submit your dispute online or over the telephone and it sounds much more convenient, however I strongly recommend that you submit any debt dispute through a detailed letter sent by certified mail, return receipt requested to all of the CRA’s that are reporting inaccurate or obsolete information on your credit report. 

Credit bureau debt dispute letters should be at least one full page if not more and should state in detail the fact as to why the information in the credit report is inaccurate as well as containing copies of documents that support the claim of inaccurate information being reported.   Do NOT send original documents to the CRA in any case as you may never see them again. It is also very important to keep several copies of the debt dispute letter and all documents that were provided for your records.

A lawsuit can also be filed against any CRA although in my personal opinion the filing of a lawsuit should be considered as a last resort. Consumers should be sure that they have copies of not only the debt dispute letter but all of the attachments that were sent along with it.  The reason for this is that in the event that you fail to provide the CRA with a detailed explanation of the dispute they may simply respond to any lawsuit by claiming that they are not liable as they did not receive adequate information to investigate the dispute.

Anyone who disputes a debt with a CRA should ensure that they save multiple copies of ALL evidence that could be used in court to prove that they have been damaged.   The consumer submitting the evidence should also include documentation that there is a factual disagreement about what happened to their debt dispute or disputes.  If you fail to save all of the evidence supporting your claim the CRA or the furnisher of the information may file a motion for summary judgment which could result in the case being decided by a judge instead of having a trial by jury.

The most important procedure to remember and to document is to copy and save in a safe place  the certified mail receipt that shows that the CRA received the debt dispute letter as the big three CRA’s are notorious for consistently losing or at least claiming to lose correspondence from consumers. Also important are any letters detailing all denials of credit that have been received as those are proof that a consumer may have been damaged by errors in their credit report.

Consumers should also be sure to include enough information in their debt dispute letter to make sure that the CRA or the furnisher of the information has copies of all documents relevant to the dispute for their review. They may not conduct a reasonable investigation of your dispute but at the very least you will be have proof that you sent the documents to them.

Consumers should also keep in mind that many CRA’s are somewhat unlikely to use the evidence provided to investigate any complaint.  The advantage of providing as much evidence as possible is that this will make it much harder for the CRA to later claim that the error is the fault of the consumer because they did not provide adequate information.

Another letter along with all relevant documents should also be sent by certified mail, return receipt requested to the furnisher of the information to ensure that the furnisher of the information cannot later claim that that the error is the fault of the consumer because they did not provide adequate information.

Although there are exceptions a CRA can be held liable under the FCRA for reporting negative information more than seven (7) years old and any bankruptcy more than ten (10) years old.  In most cases a court judgment can be reported for no longer than ten (10) years or the statute of limitations for enforcing a court judgment in the state where the judgment is entered which may be more than or less than 10 years depending on the particular state where the judgment was entered.   

Another issue to watch out for that should be properly disputed is what is known as re-aging of debt. This happens because debt collectors will often sell accounts to one another and occasionally they will report an inaccurate time causing the debt to be reported longer than it should.

Attorneys or parties that would like to view or download a FREE 3 page debt dispute letter to all three credit bureaus created by the author of this blog post can use the link shown below.

Sample dispute letter to credit bureau

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

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 for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

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.