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Thursday, September 25, 2014

Foster v. Williams case reversing unlawful detainer Judgment in California



The case of Foster v. Williams recently decided by the Appellate Division of the Superior Court in Los Angeles County, California is the topic of this blog post.  The decision in this case which was filed on September 9, 2014 has been certified for publication.  The decision reversed the judgment entered against the defendant Keith Williams and one of the grounds was that it failed to specify the physical address where rent had to be paid, instead listing only a name and directing the tenant to pay the rent online at www.erentpayment.com.

The slip opinion at page 2 states that the judgment was reversed because “The three-day notice did not comply with Code of Civil Procedure section 1161, (erroneously listed as 1162 in the slip opinion) subdivision (2)’s requirement that the notice provide the “address of the person to whom the rent payment shall be made” because the notice listed a uniform resource locator (URL) address, as opposed to the address of a physical place where the rent had to be paid. The notice also did not comply with Code of Civil Procedure section 1161, (erroneously listed as 1162 in the slip opinion) subdivision (2), because it failed to state that payment could be made pursuant to a previously established electronic funds transfer procedure.”

The opinion at page 2 states regarding the three-day notice at issue that “Plaintiff’s unlawful detainer action proceeded to trial based on a three-day notice to pay rent or quit. The three-day notice indicated it was served on defendant on June 24, 2013, and required him to pay $1,350 in rent for the month of June 2013. The notice also provided, “Your rent payment should be made payable to: Guest House Management and payment shall be delivered to: [¶] Name: Rick at the following address: www.erentpayment.com,” and listed a telephone number. On the day set for trial, defendant made an oral motion arguing the three-day notice was defective because it included a “web address” instead of a “physical address.” The court denied the motion, determining Code of Civil Procedure section 1161, subdivision (2), did not specifically require a physical address to be listed, and a “web address” constituted an “address” under the statute.”

The Appellate Division decision then went to discuss in detail the reasons for the requirements of a three-day notice under Code of Civil Procedure section 1161, subdivision (2) and on pages 3 and 4 of the slip opinion states in part that, “A judgment must be reversed when it is based on a three-day notice which lacks the information required by Code of Civil Procedure section 1161, subdivision (2).”

I have seen many three-day notices as I have been working in California and Federal litigation since 1995 and prior to that I worked in both commercial and residential property management for several years. 

This case is just one more reason that any California tenant who is served with a three-day notice to pay rent or quit should closely examine the notice to determine if it meets the requirements discussed in this blog post. If the three-day notice is defective than a demurer can be filed objecting to the complaint on the grounds that the three-day notice is defective or the defective notice can be raised as an affirmative defense in the answer.

Attorneys or parties in California who would like to view a portion of an 11 page sample demurrer to an unlawful detainer (eviction) complaint in California objecting to the complaint on several grounds, including that the three-day notice is defective, with memorandum of points and authorities with citations to case law and statutory authority and proof of service by mail sold by the author can use the link shown below.

Sample demurrer to eviction complaint 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 300 sample legal documents for California and Federal litigation.

To view over 300 sample legal documents for sale by the author of this blog post visit the following link: http://www.scribd.com/LegalDocsPro

*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

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.



 


 




Wednesday, September 24, 2014

Fleet v. Bank of America case by California Court of Appeal



The Fleet v. Bank of America case recently decided by a California Court of Appeal is the topic of this blog post. This case was decided by Division Three of the Fourth District Court of Appeal on August 25, 2014, on September 23, 2014 the Court granted the request of several parties for publication.

In my opinion I truly feel that this case is very good news and may represent a turning point as it is the only published case from California that I am aware of in which an appeals Court appears to be at least considering the possibility that the banks may be engaging in a pattern of fraud and deceit. 

The slip opinion begins on page 2 with the wording, “This appeal represents another example of what is becoming a well established and predictable pattern.” The opinion then goes on to state on page 3 that “[T]his case falls into line with a number of cases in which a homeowner has been promised a mortgage modification under a program designed to forestall foreclosure only to find the notice thereof posted on the door. The kindest interpretation to place on this scenario is lender incompetence…This is the most likely explanation, given the size of the institutions involved, but it is not the only one, and as the numbers of such cases grow, other less benign explanations are coming to more and more minds.” The opinion then goes on to cite the Ninth Circuit Court of Appeals case of Corvello v. Wells Fargo Bank (9th Cir. 2013) 728 F.3d 878, 885 (conc. opn. of Noonan, J.). (Emphasis added.)

On page 8 of the slip opinion in discussing the promissory fraud cause of action the opinion states that, “They were damaged both by the loss of their home and by the loss of the money they expended jumping through hoops, running around in circles, and talking to walls in an effort to obtain the loan modification BofA had promised them, all the while unaware that BofA had no intention of modifying their loan.” (Emphasis added.)

The Court of Appeal reversed the Judgment entered in the case and reversed the order sustaining the demurrer to the cause of action for fraud as to BofA and several other individual defendants, as well as reversing the order sustaining demurrers to the breach of contract and promissory estoppel causes of action against BofA although the Court did affirm the order sustaining the demurrers without leave to amend against several other defendants including Recon Trust. The Court also affirmed the order sustaining the demurrer to the cause of action for accounting without leave to amend.

Interestingly enough on page 13 of the slip opinion the Court of Appeal also urged the Fleets to engage counsel to, “[G]ive them a chance to litigate on equal terms with BofA.”

I read a lot of published and unpublished cases in my work and this has to be the first case I have read from California that even hints that the Courts may be finally waking up to what the big banks are actually doing.  And that is good news indeed.

Attorneys or parties in California who would like to view over 300 sample legal documents for California and Federal litigation created 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

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.



 


 





Tuesday, September 23, 2014

California notice of unavailability of counsel


http://www.legaldocspro.com/blog/california-notice-of-unavailability-of-counsel/

Summary judgment motion by defendant in United States District Court under Rule 56




A summary judgment motion by a defendant in United States District Court under Rule 56  is the topic of this blog post.   Summary judgment in Federal Court is authorized by Rule 56 of the Federal Rules of Civil Procedure which states in pertinent part that summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P 56(a).

A motion for summary judgment under Rule 56 must be filed no later than 30 days after the close of all discovery in the case unless a different time is specified by a local rule or specific order of the Court. 

The moving party should give at least 31 calendar days notice of the motion unless a different time is specified by a local rule or specific order of the Judge hearing the case. The moving party should also carefully review the local rules for their Court as well as standing orders for the Judge as many districts and even individual Judges have very specific rules and procedures that must be followed for summary judgment motions.

For example in the Central District of California local rule 7-3 requires that the moving party must meet and confer with the opposing party in an attempt to resolve any issues before any motion is filed and local rule 56-1 has very specific requirements for the documents that must be included with the motion including a requirement that a Statement of Uncontroverted Facts and Conclusions of Law and proposed Judgment granting summary judgment must be served and filed with the motion.

Filing a Rule 56 summary judgment motion should be considered by any defendant who can meet their burden of showing that plaintiff cannot establish the existence of any element essential to any or all of their causes of action and on which they bear the burden of proof at trial and whose discovery responses are clearly vague and ambiguous and are lacking in any specific facts or evidence.

The United States Supreme Court has stated that the moving party on a Rule 56 motion for summary judgment has the burden of demonstrating that there is no genuine issue of fact in dispute that requires a trial.  Once the moving party has met their burden the party opposing the motion cannot just rely on any denials in their pleadings but instead must set forth specific facts showing a genuine issue of fact in dispute that requires trial.

The Ninth Circuit Court of Appeals has stated that the party opposing a summary judgment motion cannot defeat the motion simply by relying on conclusory allegations that are not supported by any evidence.  And they have also stated that an issue of fact alone is not sufficient reason to deny a motion for summary judgment unless there is a genuine issue of material fact that is capable of directly affecting the outcome of the case, and that the evidence must be substantial and not merely speculative.

Attorneys or parties who would like to view a portion of a 17 page sample motion for summary judgment by defendant in United States District Court containing brief instructions, a table of contents and table of authorities as well as a memorandum of points and authorities with citations to case law and statutory authority, statement of uncontroverted facts and conclusions of law, sample declaration, proposed judgment granting summary judgment and proof of service by mail 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 for California and Federal litigation.
.
To view over 300 sample legal documents for sale by the author of this blog post visit the following link: http://www.scribd.com/LegalDocsPro

*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.


Friday, September 19, 2014

Residential security deposit requirements in California under Civil Code section 1950.5

Residential security deposit requirements in California are the topic of this blog post. This post will discuss briefly some of the main provisions of Civil Code section 1950.5 which governs a security deposit for a residential property in California.  California tenants who rent residential property are often unaware of the more important provisions relating to security deposits such as how much security deposit the landlord can require them to pay when they move in and if the landlord can call any portion of their security deposit nonrefundable.  Some landlords in California do attempt to collect a nonrefundable “cleaning deposit” when a tenant signs a lease even though that is prohibited by California law.

One of the most important provisions is found in Civil Code section 1950.5(c) which states in pertinent part that, “A landlord may not demand or receive security, however denominated, in an amount or value in excess of an amount equal to two months’ rent, in the case of unfurnished residential property, and an amount equal to three months’ rent, in the case of furnished residential property, in addition to any rent for the first month paid on or before initial occupancy. Thus a landlord cannot require that a tenant pay more than an amount equal to two months rent for an unfurnished unit and more than an amount equal to three months rent for a furnished rent.

Civil Code section 1940.5(g) provides that if the tenant has a waterbed the landlord is entitled to increase the security deposit in an amount equal to one-half of one month’s rent.

Another very important provision is found in Civil Code section 1950.5(m) which states that, “No lease or rental agreement may contain a provision characterizing any security as “nonrefundable.”

The landlord can only claim from the security deposit those amounts that are reasonably necessary such as:

The repair of damages to the premises, exclusive of ordinary wear and tear, caused by the tenant or by a guest or licensee of the tenant.

The cleaning of the premises upon termination of the tenancy necessary to return the unit to the same level of cleanliness it was in at the inception of the tenancy.

To remedy future defaults by the tenant in any obligation under the rental agreement to restore, replace, or return personal property or appurtenances, exclusive of ordinary wear and tear, if the security deposit is authorized to be applied thereto by the rental agreement.

The landlord cannot charge the tenant for any damages that occurred before the tenant moved in pursuant to Civil Code section 1950.5(e) which states that, “The landlord may claim of the security only those amounts as are reasonably necessary for the purposes specified in subdivision (b). The landlord may not assert a claim against the tenant or the security for damages to the premises or any defective conditions that preexisted the tenancy, for ordinary wear and tear or the effects thereof, whether the wear and tear preexisted the tenancy or occurred during the tenancy, or for the cumulative effects of ordinary wear and tear occurring during any one or more tenancies.”

Civil Code section 1950.5(g) which governs the disposition and return of the security deposit is quite detailed but briefly stated it requires that within 21 calendar days after the tenant has vacated the premises the landlord must personally deliver or mail to the tenant an itemized statement that details all the charges made against the security deposit as well as returning any remaining portion of the security deposit to the tenant.  The landlord must also includes copies of all relevant documents such as bills, invoices, etc. showing the charges that were incurred if the landlord or landlord’s employee did not do the work. If the landlord or landlord’s employee did do the work the statement must describe the work performed, the time spent and the reasonable hourly rate charged for the work.   The landlord does not have to provide copies or a detailed itemization if the deductions for repairs and cleaning together do not exceed $125.00.

A landlord may not make a bad faith claim or retain a security deposit in bad faith. If they do they may be subject to statutory damages of up to twice the amount of the security, in addition to actual damages and they will have the burden of proof as to the reasonableness of the amounts claimed.  See Civil Code section 1950.5(l).

A tenant can sue their former landlord in small claims court as long as their statutory and actual damages do not exceed the current limit of $10,000.00. See Civil Code section 1950.5(n).

Attorneys or parties in California that would like to view a sample security deposit dispute letter in Microsoft Word format created 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 255 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 255 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 at:  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.


 


 



Thursday, September 18, 2014

Motion to vacate a judgment in California on the grounds of attorney misconduct



A motion to vacate a judgment in California on the grounds of attorney misconduct is the topic of this blog post. Also discussed is moving in the alternative that any default, dismissal, judgment or other order should be vacated for failure to give notice pursuant to Code of Civil Procedure section 286.

A party in California may request that any default, dismissal judgment or other order be vacated on the grounds that severe attorney abandonment and neglect amounted to positive misconduct and the default, dismissal, judgment or other order should be vacated on the grounds of extrinsic mistake under the inherent equity power of the Court.

Code of Civil Procedure § 286 may also be used as an alternative ground for relief as it states that, “When an attorney dies, or is removed or suspended, or ceases to act as such, a party to an action, for whom he was acting as attorney, must, before any further proceedings are had against him, be required by the adverse party, by written notice, to appoint another attorney, or to appear in person.”

At least one California Court of Appeal has stated that failure to give the notice required by Code of Civil Procedure § 286 may be used as an alternative ground for relief in a case where there is a showing of positive misconduct by the attorney.

Cases where positive misconduct has been found to exist include cases where an attorney failed to serve process, failed to appear at several pretrial conferences  as well as failing to communicate with the client, the court and opposing counsel.  Other cases where positive misconduct has been found include cases where an attorney failed to respond to discovery requests or to oppose a motion to dismiss for failure to respond to discovery, was suspended by the California State Bar and failed to oppose a motion resulting in a default judgment.  

Numerous cases from the California Courts of Appeal have stated that positive misconduct by an attorney may entitle the client to relief from any default, dismissal, judgment or other proceeding so long as the client is relatively free from negligence. Relief may be denied if the client was also negligent. However several decisions have also stated that a client has the right to rely on the performance of their attorney and failing to check on the status of a case even for periods exceeding two years does not always constitute negligence on the part of the client.

One recent decision from a California Court of Appeal stated that where the conduct of the attorney amounts to abandonment the Court will consider factors such as the policy favoring a trial on the merits; the client's own conduct; prejudice to defendant and the policy that innocent clients should not have to suffer from their attorneys' gross negligence among others.

Several decisions of the California Supreme Court have stated that a trial court has an inherent equity power under which it may grant relief from a default, dismissal, judgment or other order
obtained through extrinsic fraud or mistake.  Attorney misconduct in appropriate cases may constitute extrinsic mistake.

Attorneys or parties in California who would like to view a portion of a 14 page sample motion to vacate judgment in California on the grounds of attorney misconduct 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 judgment in California for attorney misconduct



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 at:  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.


 

Wednesday, September 17, 2014

Summary judgment motion under Rule 56 by plaintiff in United States District Court



A summary judgment motion under Rule 56 by a plaintiff in United States District Court is the topic of this blog post.   Rule 56 refers to Federal Rule of Civil Procedure 56 which states in pertinent part that summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P 56(a).

A motion for summary judgment under Rule 56 must be filed no later than 30 days after the close of all discovery in the case unless a different time is specified by a local rule or specific order of the Court. 

In most cases the moving party should give at least 31 calendar days notice of the motion unless a different time is specified by a local rule or specific order of the Judge hearing the case. The moving party should carefully review the local rules for their Court as well as standing orders for the Judge as many districts and even individual Judges have very specific rules and procedures that must be followed.

For instance in the Central District of California local rule 7-3 requires that the moving party must meet and confer with the opposing party in an attempt to resolve any issues before any motion is filed and local rule 56-1 has very specific requirements for the documents that must be included with the motion including a requirement that a Statement of Uncontroverted Facts and Conclusions of Law and proposed Judgment granting summary judgment must be served and filed with the motion.

Filing a Rule 56 summary judgment motion should be considered by any plaintiff who can show that their complaint clearly alleges sufficient facts to establish each and every required element of all causes of action contained in the complaint and that the answer filed by a defendant consists of nothing but generic “boilerplate” affirmative defenses which fail to state any facts sufficient to constitute affirmative defenses and that the discovery responses provided by defendant are also deficient and lacking in any specific facts or evidence.

The United States Supreme Court has stated that the moving party on a Rule 56 motion for summary judgment has the burden of demonstrating that there is no genuine issue of fact in dispute that requires a trial.  Once the moving party has met their burden the party opposing the motion cannot just rely on any denials in their pleadings but instead they must set forth specific facts showing a genuine issue of fact in dispute that requires trial.

The Ninth Circuit Court of Appeals has stated that the opposing party cannot defeat a motion for summary judgment simply by relying on conclusory allegations that are not supported by any evidence.  And they have also stated that an issue of fact alone is not sufficient reason to deny a motion for summary judgment unless there is a genuine issue of material fact that is capable of directly affecting the outcome of the case, and that the evidence must be substantial and not merely speculative.

Attorneys or parties who would like to view a portion of a 16 page sample motion for summary judgment in United States District Court containing brief instructions, a table of contents and table of authorities as well as a memorandum of points and authorities with citations to case law and statutory authority, statement of uncontroverted facts and conclusions of law, sample declaration, proposed judgment granting summary judgment and proof of service by mail 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 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.
 



 

Monday, September 15, 2014

Summary judgment motion by defendant in California






A summary judgment motion by a defendant in California pursuant to Code of Civil Procedure section 437c is the topic of this blog post.   This motion can also be filed by a cross-defendant as well as a defendant.

Code of Civil Procedure section 437c(a) states in pertinent part that, “Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” 

There are numerous requirements for motions for summary judgment.  Any party considering moving for summary judgment should carefully read the entire text of Code of Civil Procedure section 437c to ensure that they have complied with all applicable requirements.

For example, the party filing the motion for summary judgment must wait until at least 60 days have passed since the general appearance of the party against whom the motion is directed unless the Court orders otherwise.  And a minimum of 75 calendar day’s notice of the hearing must be given. If notice of the motion is given by regular mail at least 5 calendar days must be added to the notice period. Note that there is NO statutory procedure for shortening the notice period for a motion for summary judgment.

And the party moving for summary judgment must submit a separate statement of undisputed material facts with the motion.

The advantage of filing a motion for summary judgment is that if the Court is convinced that there are no triable issues of material facts it must grant the motion as Code of Civil Procedure § 437c(c) states in pertinent part that, “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Code of Civil Procedure § 437c(p)(2) states that for purposes of motions for summary judgment and summary adjudication,

“(2) A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.”

The advantage of filing a motion for summary judgment is that if forces the party opposing the motion to produce admissible evidence showing that a triable issue of material fact exists and they cannot merely rely on the allegations or denials of their pleadings but must set forth specific facts showing that a triable issue of material fact exists as to that cause of action or a defense.

This is particularly useful in cases where the plaintiff or cross-complainant has provided vague “boilerplate” discovery responses when asked to state facts supporting the allegations of their complaint or cross-complaint. Those discovery responses can be used against them in the motion for summary judgment.

Attorneys or parties in California who would like to view a portion of a sample 18 page motion for summary judgment by a defendant in California containing brief instructions, a table and contents and table of authorities with an opening summary of argument, memorandum of points and authorities with citations to case law and statutory authority, separate statement of undisputed material facts, sample declaration, proposed order and proof of service sold by the author can use the link shown below. 

Sample motion for summary judgment by 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 300 sample legal documents for California and Federal litigation.

To view over 300 sample legal documents for sale by the author of this blog post visit the following link: http://www.scribd.com/LegalDocsPro

*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.

Summary judgment motion by plaintiff in California pursuant to Code of Civil Procedure section 437c



A summary judgment motion by a plaintiff in California pursuant to Code of Civil Procedure section 437c is the topic of this blog post.   This motion can also be filed by a cross-complainant as well as a plaintiff.

Code of Civil Procedure section 437c(a) states in pertinent part that, “Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” 

There are numerous requirements for motions for summary judgment.  Any party considering moving for summary judgment should carefully read the entire text of Code of Civil Procedure section 437c to ensure that they have complied with all applicable requirements.

For instance, the party moving for summary judgment must wait until at least 60 days have passed since the general appearance of the party against whom the motion is directed unless the Court orders otherwise.  And a minimum of 75 calendar day’s notice of the hearing must be given. If notice of the motion is given by regular mail at least 5 calendar days must be added to the notice period. Note that there is NO statutory procedure for shortening the notice period for a motion for summary judgment.

And the party moving for summary judgment must submit a separate statement of undisputed material facts with the motion.

The advantage of filing a motion for summary judgment is that if the Court is convinced that there are no triable issues of material facts it must grant the motion as Code of Civil Procedure § 437c(c) states in pertinent part that, “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Code of Civil Procedure § 437c(p)(1) states that for purposes of motions for summary judgment and summary adjudication,

“(1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.”

The advantage of filing a motion for summary judgment is that if forces the party opposing the motion to produce admissible evidence showing that a triable issue of material fact exists and they cannot merely rely on the allegations or denials of their pleadings but must set forth specific facts showing that a triable issue of material fact exists as to that cause of action or a defense. This is particularly useful in cases where the defendant has filed an answer containing numerous “boilerplate” affirmative defenses and whose discovery responses are equally vague. 

Attorneys or parties in California who would like to view a portion of a sample 19 page motion for summary judgment by a plaintiff in California containing brief instructions, a table and contents and table of authorities with an opening summary of argument, memorandum of points and authorities with citations to case law and statutory authority, separate statement of undisputed material facts, sample declaration, proposed order and proof of service 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 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.

Summary judgment motion in an unlawful detainer (eviction) case in California



A summary judgment motion in an unlawful detainer (eviction) case in California is the topic of this blog post.  This blog post will discuss a defendant filing a motion for summary judgment on the grounds that the plaintiff cannot separately establish one of the required elements of a cause of action for unlawful detainer.

http://www.legaldocspro.net/blog/motion-summary-judgment-california-eviction/ 

Amend adversary complaint in United States Bankruptcy Court




Amending an adversary complaint in United States Bankruptcy Court is the topic of this blog post.  It should be noted that the cases mentioned below are from the Ninth Circuit Court of Appeals, and a reader who is located in a state that is located in another circuit should research the cases for their particular circuit.

Federal Rules of Bankruptcy Procedure 7015 and 7016 expressly provide that Rules 15 and 16 respectively, of the Federal Rules of Civil Procedure apply in bankruptcy proceedings.

Rule 15 of the Federal Rules of Civil Procedure ("FRCP") states in pertinent part that,

"A party may amend its pleading once as a matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires."

And the claims in the first amended adversary complaint relate back to the original complaint if they assert claims arising out of the conduct, transactions and occurrences that were set out, or attempted to be set out in the original complaint. See FRCP Rule 15[c](1)(B).

The Ninth Circuit Court of Appeal has stated that leave to amend should be granted unless   amendment would cause prejudice to the opposing party, the amendment is sought in bad faith, amendment is futile, or creates undue delay.

However, the situation changes once the Court has issued a pre-trial scheduling order. Once a pre-trial scheduling order has been issued the Court must look to the pre-trial scheduling order to determine what standards to apply to any motion to amend. If no pre-trial scheduling order has been issued which makes any mention of any timetable for amending pleadings then a good argument can be made that the more liberal standards of Rule 15 should apply.

The policy of Rule 15 favoring amendment is applied liberally by the Ninth Circuit Court of Appeals although that leave to amend can be denied where plaintiff has previously amended their complaint. Thus it is very critical that a party seeking leave to amend their original complaint ensure that their amended complaint does in fact state a claim.

Attorneys or parties who would like to view a portion of a sample motion for leave to amend an adversary complaint containing 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.

http://www.scribd.com/doc/57486354/Sample-Motion-for-Leave-to-Amend-Adversary-Complaint

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 other sample legal document packages for sale by visiting: 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.

 




 

Sunday, September 14, 2014

Procedure for uncontested probate in California




The procedure for uncontested probate in California is the topic of this blog post which will discuss some of the procedures and issues for an uncontested probate in California. Uncontested means that there are no disputes between any of the heirs or beneficiaries regarding either the will, if there is one, or the distribution of the estate property, also that there are no disputes with creditors.

The word probate refers to what happens to a person's property when he or she dies. The purpose of probate is to see that the debts and taxes of the person who has died known as the decedent are paid and that the remaining property gets to the rightful owners.

Assets held in the decedent's name alone are referred to as probate property and will generally require a court proceeding to determine the beneficiaries. Probate property passes to the persons named in the will, or if there is no will, according to California law on intestate succession. The person who oversees the probate proceeding is called the executor or administrator. A will normally names an executor, usually a close relative. If there is no will, the court will appoint an administrator in a certain order of priority, starting with the surviving spouse, then children, etc.. It takes a minimum of 6 to 9 months to complete a formal probate court proceeding.

If the decedent died testate, meaning that there is a will then a petition for probate of will and letters testamentary must be filed. If the decedent died intestate, meaning that there is no valid will then the petition is called a petition for probate and letters of administration. If the named executor is unable or unwilling to serve and no alternate executor is named in the will the Court will appoint what is known as an administrator with will annexed.

Once the petition for probate has been filed, a notice of petition to administer estate must be published in a legal or "adjudicated" newspaper that publishes probate notices. The notice must be published three times and the first publication must commence at least fifteen days before the hearing on the petition for probate. Also all of the beneficiaries and other persons mentioned in the will must be mailed notice of the petition to administer estate at least fifteen days before the hearing.

In most uncontested cases either the will waives bond, or the heirs sign a waiver of bond. Most courts will waive the bond if everyone has signed a waiver, particularly if only limited authority under the Independent Administration of Estates Act is requested. Limited authority means that the executor or administrator may not sell any real property, or encumber any real property without obtaining court permission, and any sale of real property must be confirmed by the Court and a special notice published. If full authority is requested, most Courts will require a bond.

Full authority means that the executor or administrator does not have to obtain Court permission to sell any real property or encumber any real property. Instead they must serve all heirs, beneficiaries and other persons entitled to notice with a Notice of Proposed Action describing in detail what they plan to do, the notice must be served at least fifteen days before the proposed action. If anyone objects then the Court will hold a hearing on their objection.

At the hearing on the petition for probate, if no objections have been received the Court will appoint the executor or administrator, and also appoint a probate referee to appraise certain estate property such as automobiles, real estate, and other types of property which do not have a readily ascertainable cash value such as stocks, bonds, etc. Cash in the bank is appraised by the executor or administrator. The Inventory and Appraisement must be filed with the Court once all of the estate property has been properly appraised.

Notice to creditors must also be given. Even if no creditors exist a notice must be served on the California Franchise Tax Board. Any creditors given notice have until the later of sixty days after the notice was served, or four months after the letters were issued to file a creditor’s claim. The executor or administrator must approve the claim in whole or in part, or reject the claim. If a creditor’s claim is rejected then the executor or administrator must wait three months once the notice of rejection was served before a petition for final distribution can be filed.

Once all creditor’s claims have been dealt with, and after at least four months since the letters have been issued, then a petition for final distribution may be filed.

The petition for final distribution will generally request that the Court approve all actions taken by the executor or administrator, and must provide a complete accounting of the estate unless all heirs or beneficiaries have waived the accounting. The petition must also list the current value of all estate property, and all heirs or beneficiaries entitled to property of the estate, as well as what percentage they will receive. Also if the executor or administrator is requesting their statutory fee, or the fee for the attorney, a detailed breakdown of how the proposed fee is calculated must be included in the petition.

If the Court approves the petition for final distribution then an Order will be signed by the Judge. Then once all heirs and beneficiaries have signed a receipt stating that they have received all property to which they were entitled, the receipts are filed with the Court along with an Ex-Parte Petition for Final Discharge which requests that the Court discharge the executor or administrator. Once that is done the probate is over, if a bond was issued than the bonding company will cancel the bond once they have received a copy of the Order of Final Discharge.

Attorneys or parties who wish 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.

http://www.scribd.com/LegalDocsPro/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. 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 other sample legal document packages for sale by visiting: 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.

 


File motion to quash service for lack of personal jurisdiction in California


http://www.legaldocspro.com/blog/quash-service-for-lack-of-personal-jurisdiction-in-california/

Code of Civil Procedure section 1987 notice to appear and produce documents in California


http://www.legaldocspro.com/blog/notice-to-appear-and-produce-documents-in-california/

Adversary proceedings in United States Bankruptcy Court



Adversary proceedings in United States Bankruptcy Court are the topic of this blog post. An adversary proceeding is essentially a lawsuit filed within a bankruptcy case. It is an action commenced by a plaintiff filing a complaint against one or more defendants. The adversary proceeding resembles a typical civil case from state court. The plaintiff is the person, partnership or corporation initiating the lawsuit.

The two most common adversary proceedings are a complaint to determine the dischargeability of a debt under Title 11 United States Code (“U.S.C.”) Section 523[c] and a complaint to deny the Debtor a discharge under Title 11 U.S.C. Section 727.

A complaint to determine the dischargeability of a debt is generally filed for one of two reasons;  the debt is based on fraud or false representations, or the debt is based on a willful or malicious injury to another.

The deadline to file a complaint to determine the dischargeability of a debt under Title 11 U.S.C. Section 523[c] is no later than sixty (60) days after the date first set for the meeting of creditors. See Federal Rule of Bankruptcy Procedure 4007[c] (“FRBP”). If the complaint is not timely filed it is barred unless a request for extension of time is filed and is granted by the bankruptcy court before the deadline.

A complaint to deny the Debtor a discharge is not as common as it requests that the bankruptcy court deny the Debtor a discharge, if the request is granted the Debtor is denied a discharge and all of the debts listed on the bankruptcy petition are then declared non-dischargeable. This complaint is generally used when a creditor cannot file a complaint to determine the dischargeability of a debt because the debt is not based on any of the reasons specified in Title 11 U.S.C. Section 523.

The deadline to file a complaint to deny the Debtor a discharge under Title 11 U.S.C. Section 727 is also no later than sixty (60) days after the date first set for the meeting of creditors. See FRBP 4004(a).  If the complaint is not timely filed it is barred unless a request for extension of time is filed and is granted by the bankruptcy court before the deadline.

Once the summons and complaint are filed they must be served on the defendant(s) within 120 days from the date the complaint was filed or the case will be subject to dismissal.  See Federal Rules of Civil Procedure 4(m). 

In most cases the defendant(s) must answer the complaint within thirty (30) days after issuance of the summons unless a different date is specified by the court.  See FRBP 7012(a).

If the defendant(s) do not answer the complaint by the date set forth in the summons they are in default. The Plaintiff can then obtain a default judgment for the relief requested in the complaint.

If the defendant(s) do answer the complaint then discovery is permitted pursuant to the Federal Rules of Civil Procedure.  The Bankruptcy Rules specifically allow the same type of discovery in adversary proceedings as in a civil case so written interrogatories, requests for admission, and requests for production of documents may all be used in addition to depositions. 

To view over 300 sample legal documents for California and Federal litigation created and sold by the author of this blog post 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 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 other sample legal document packages for sale by visiting: http://www.legaldocspro.net

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.