Code of Civil Procedure section 367 and standing to sue in California

Code of Civil Procedure section 367 and standing to sue in California are the topic of this blog post. The term standing to sue means the right to relief in court.  In order for a party to have standing to sue they must be the "real party in interest" with respect to the claims sued upon. The California Supreme Court has held that the issue of lack of standing to sue is not waived and may be raised at any time in a legal proceeding.

The law in California states that a party suing on a claim for relief must be the real party in interest unless a specific exception applies.

Except as otherwise provided by statute, "every action must be prosecuted in the name of the real party in interest . . ." Code of Civil Procedure § 367; see also Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004.

Generally, the real party in interest is the person who has the right to sue under the substantive law. It is the person who owns or holds title to the claim or property involved, as opposed to others who may be interested or benefitted by the litigation. Gantman v. United Pac. Ins. Co. (1991) 232 Cal.App.3d 1560, 1566.

Plaintiff's lack of standing to sue on the claim is treated as a “jurisdictional” defect and is not waived by defendant's failure to raise it by demurrer or answer. “(C)ontentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the proceeding.” Common Cause of Calif. v. Board of Supervisors (1989) 49 Cal. 3d 432, 438; see also  Associated Builders & Contractors, Inc. v. San Francisco Airports Comm'n (1999) 21 Cal. 4th 352, 361.

The purpose of the real party in interest requirement is to assure that any judgment rendered will bar the owner of the claim sued upon from relitigating. "It is to save a defendant, against whom a judgment may be obtained, from further harassment or vexation at the hands of some other claimant to the same demand." Giselman v. Starr (1895) 106 Cal. 651, 657; see also Cloud v. Northrop Grumman Corp. supra at 1003.

Any party served with a summons and complaint should consider the issue of standing to sue. This is particularly true if they are the defendant in a collection case. This is due to the fact that in collection cases involving junk debt buyers the issue of lack of standing to sue often comes up.  Many if not most junk debt buyers cannot clearly show standing to sue.  This means that a motion for summary judgment, motion for nonsuit or motion for judgment might be appropriate depending on the circumstances of the case and the trial date.

Attorneys or parties in California who would like to view over 245 sample legal documents for sale by the author of this blog post can visit the following link: View 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 245 sample legal documents for sale.

*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 245 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 Subscribe to FREE weekly legal newsletter for more information. You can view sample legal document packages for sale by going to Sample legal document packages for sale

Copyright 2014 Stan Burman.

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.
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.

Late charges in California residential leases and rental agreements

A late charge in a California residential lease or rental agreement is the topic of this blog post. A late charge clause is also known as a liquidated damages provision in a residential lease or rental agreement and is governed by Civil Code section 1671. While many California residential leases and rental agreements include a late charge clause that does not mean they are valid as will be shown by this blog post.

California Civil Code section 1671 states that,

“(a) This section does not apply in any case where another statute expressly applicable to the contract prescribes the rules or standard for determining the validity of a provision in the contract liquidating the damages for the breach of the contract.

(b) Except as provided in subdivision (c), a provision in a contract liquidating the damages for the breach of the contract is valid unless the party seeking to invalidate the provision establishes that the provision was unreasonable under the circumstances existing at the time the contract was made.

(c) The validity of a liquidated damages provision shall be determined under subdivision (d) and not under subdivision (b) where the liquidated damages are sought to be recovered from either:

(1) A party to a contract for the retail purchase, or rental, by such party of personal property or services, primarily for the party’s personal, family, or household purposes; or

(2) A party to a lease of real property for use as a dwelling by the party or those dependent upon the party for support.

(d) In the cases described in subdivision (c), a provision in a contract liquidating damages for the breach of the contract is void except that the parties to such a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.”

In a published case the Appellate Division of the Superior Court in Los Angeles County held that, “As is apparent from the language of section 1671, a liquidated damages provision in a residential lease is normally void, except where the parties specifically agree and “when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.” Orozco v. Casimiro 121 Cal.App.4th Supp. 7, 10, 11, (2004).

The Court also ruled that unless the landlord can present evidence that any late fee is in fact the amount of damages caused by late payment of rent, the late fee is void and unenforceable. The Court in Orozco v. Casimiro reversed the judgment entered against the Defendant and Appellant and ordered the Trial Court to enter judgment in favor of Defendant and Appellant.

“Although respondent may have been able to present evidence below that would have shown in this particular case that damages resulting from the late payment of rent were impracticable or extremely difficult to fix, he did not do so. In the absence of such evidence, he was not entitled to the presumption that the late fee was the amount of damage caused by the late payment. Thus, under the evidence in this case, the late fee was void and unenforceable.” It should be noted that the Court also held that, “Once the landlord shows that it was impracticable or extremely difficult to fix actual damages, the amount the parties agreed upon is presumed to represent the amount of damage suffered by the breach.” Orozco v. Casimiro 121 Cal.App.4th Supp supra at 11.

Tenants in California should take the information contained in this blog post into account.

Attorneys or parties in California who would like to view a portion of a sample answer to an eviction complaint for California that includes 15 affirmative defenses, including the affirmative defense that the late charge claimed in the three day notice is void can vist the link shown below.

Sample Answer to California eviction complaint  

To purchase and download a California eviction document collection containing over 20 sample documents and selling for only $59.99 visit California eviction document collection and choose the eviction document collection.

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 245 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 245 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 Subscribe to FREE weekly legal newsletter for more information. You can view sample legal document packages for sale by going to Sample legal document packages for sale

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.

Definition of general appearance in California

The definition of a general appearance in California is the topic of this blog post.   A general appearance is fundamentally different from a special appearance in that once a defendant or cross-defendant makes a general appearance in an action they have submitted to the jurisdiction of the court.  A general appearance is any appearance in which the defendant participates in the action in a manner which recognizes the jurisdiction of the court.

Code of Civil Procedure section 1014 states in pertinent part that, “A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant.”

If a defendant raises an issue for resolution or seeks relief available only if the court has jurisdiction over the defendant, then the appearance is a general one. See Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 250.

And if a party brings a motion to vacate a judgment against it for lack of personal jurisdiction under Code of Civil Procedure section 473, subdivision (d) that raises any other issues, that will constitute a general appearance waiving the jurisdictional issue. Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2013) ¶ 3:165, pp. 3-56.2-3.56-3, citing Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1153.

Essentially any appearance in which a defendant does not object to the jurisdiction of the court will be considered a general appearance. 

Opposing a motion for attorney fees on other than jurisdictional grounds is also a general appearance. Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1688-1689.

Even naming a motion or pleading as a special appearance is not controlling.   See Szynalski v. Superior Court (2009) 172 Cal.App.4th 1, 11; Greener v. Workers' Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1037 ["Notwithstanding a `special appearance' designation on a motion to quash, if the movant seeks relief on any basis other than lack of personal jurisdiction, he or she makes a general appearance."

Attorneys or parties in California who would like to view over 245 sample legal documents for sale by the author of this blog post can visit the following link:  View 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 245 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 245 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 Subscribe to FREE weekly legal newsletter for more information. You can view sample legal document packages for sale by going to Sample legal document packages for sale“

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.

Definition of special appearance in California

The definition of the term special appearance in California is the topic of this blog post.    Special appearance refers to an appearance in which a defendant or cross-defendant does not admit that they are subject to the jurisdiction of the court and wishes to object to the jurisdiction of the court.   The statutory authority for a special appearance in California is found in Code of Civil Procedure section 418.10.

Code of Civil Procedure section 418.10(a) states that, “(a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes:

(1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.

(2) To stay or dismiss the action on the ground of inconvenient forum.

(3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8.”

Filing and serving a motion to quash, motion to dismiss based on inconvenient forum and a motion to dismiss for failure to timely serve the summons and complaint or prosecute the action are all considered a special appearance providing that they are timely served and filed. 

Certain other actions are also considered a special appearance as Code of Civil Procedure section 418.10(d) states that, “No default may be entered against the defendant before expiration of his or her time to plead, and no motion under this section, or under Section 473 or 473.5 when joined with a motion under this section, or application to the court or stipulation of the parties for an extension of the time to plead, shall be deemed a general appearance by the defendant.”

Appearing at an ex-parte hearing or such as an ex-parte hearing regarding a provisional remedy such as attachment is sought is NOT considered a general appearance.

Code of Civil Procedure section 418.11 states that, “An appearance at a hearing at which ex parte relief is sought, or an appearance at a hearing for which an ex parte application for a provisional remedy is made, is not a general appearance and does not constitute a waiver of the right to make a motion under Section 418.10.”

Any discovery that relates only to the jurisdictional issue is not considered a general appearance in the action.

A motion to quash under section 418.10 on the grounds of lack of personal jurisdction must be supported by evidence on the issue of the defendant's contacts with the state.  The parties are thus permitted to conduct discovery on the issue prior to the hearing on the motion.  The defendant's conduct of discovery on the jurisdictional issue, rather than the merits of the case, is not considered a general appearance in the action. See Factor Health Management v. Superior Court, (2005) 132 Cal.App.4th 246, 250. (Citations and quotations omitted.)

Discovery that relates to the provisional remedy is also not considered a general appearance.

“We see no reason why the exception to the general rule concerning discovery should not extend to discovery propounded in connection with the opposition to an ex parte application for a provisional remedy. If a defendant is permitted to make a special appearance to oppose the ex parte application, and discovery is required to obtain the evidence necessary to oppose the ex parte application, the defendant should be permitted to conduct such discovery without being considered to have made a general appearance in the action. To hold otherwise would render section 418.11 meaningless in cases where discovery was required to oppose an ex parte application for a provisional remedy.”  Factor Health Management 132 Cal App. 4th supra, at 250.

However if a defendant raises an issue for resolution or seeks relief available only if the court has jurisdiction over the defendant, then the appearance is a general one.  Factor Health Management, 132 Cal App. 4th supra, at 250.

Attorneys or parties in California who would like to view over 245 sample legal documents for sale by the author of this blog post can visit the following link: View 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 245 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 245 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 Subscribe to FREE weekly legal newsletter for more information. You can view sample legal document packages for sale by going to  Sample legal document packages for sale

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.