Responding to a request for a statement of witnesses and evidence in California

Responding to a request for a statement of witnesses and evidence in California is the topic of this blog post.    

The party responding to a request for statement of witnesses and evidence must serve the response on the requesting party within 20 calendar days from the date of service of the request pursuant to Code of Civil Procedure section 96(c), however if the request was served by mail than the responding party has 25 calendar days to serve the response pursuant to Code of Civil Procedure section 96(g) which states that, “The time for performing acts required under this section shall be computed as provided by law, including Section 1013.”

Code of Civil Procedure § 96(a) requires the response to contain the following information:

The names and addresses of all witnesses other than a party to the action that the responding party intends to call at the trial;

A description of the physical evidence that the responding party intends to offer at the trial;

A description and copies if available of documentary evidence that the responding party intends to offer at the trial;

However evidence and witnesses and that will be used only for impeachment do NOT have to be included in the response.

Parties responding to a request for statement of witnesses and evidence should make every effort to include all of the information required as they will not be allowed to call any witness, or introduce any evidence that was not included in the response except as otherwise provided by law pursuant to the last sentence of Code of Civil Procedure § 96(a).

It should be noted however that there are exceptions to that rule as Code of Civil Procedure § 97(b)(5) permits the responding party to request the court for permission to call witnesses and/or introduce evidence at trial on the grounds that the responding party made a reasonable good faith effort to comply with Code of Civil Procedure § 96(c) or on the grounds that the failure to comply was the result of mistake, inadvertence, surprise or excusable neglect as provided in Code of Civil Procedure § 473.

Attorneys or parties in California who would like to view a portion of a sample response to a request for statement of witnesses and evidence in California sold by the author can use the link shown below.

Sample Response to Request for Statement of Witnesses and Evidence in California

 

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

*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.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Abuses by debt collection companies and damage to credit reputation

Abuses by by debt collection companies and damage to credit reputation are the topic of this blog post.  This blog post was written by Georg Finder, an Orange County, CA, Credit Damage Evaluator (CDE).

The issue of abuses by debt collection companies is a very important one.  The law recognizes that legitimate debts should be collected to ensure the efficient functioning of the economic system. The law also recognizes however that abuses by debt collectors are a reality.  And some of those abuses, whether negligent or malicious, can give rise to claims for damage to credit reputation.

Some debt collectors and collection agencies are just doing a difficult job as best as they can. Others however have little or no regard for any abuses that they may inflict/impose on a consumer while collecting on a debt. Still others have little or no regard for adhering to ethical practices, as defined by state or federal laws. 

Common debt collection abuses that could give rise to a claim for damage to credit reputation include but are not necessarily limited to:

-           Reporting of information known to be inaccurate such as an inflated balance due or where the debt has already been paid in full or otherwise satisfied.

-           Balance Collections – common in medical billing.  The medical treatment provider accepts what the insurance company has paid settled-in-full, and then turns what it considers the unpaid amount by the insurance company as a balance due.   Sometimes they do not even bill the patient, and when the unsent bill is not paid, send it over to the collection agency,

-           False or negligent reporting of late payments when no late payments were made.

-           The sale or other transfer of an alleged debt between various debt collectors that results in multiple derogatory items appearing on a credit report for a single account.

-           The intentional and fraudulent practice of “re-aging” a delinquent account that is more than seven years old so it can continue to be reported in credit reports.

-           The negligent reporting of a derogatory item that is more than seven years old on credit reports.

-           Intentional or negligent reporting of a debt that is in fact owed by another person or is the result of identity theft.

Serving a consumer with legal process at an address where they have never lived, or where they have moved from several years before the alleged service in order to obtain a default judgment that is void for lack of valid service.

The knowing or unknowing use of unethical process servers who fraudulently claim that a consumer has been served with legal process when in fact the consumer was never served in order to obtain a default judgment that is void for lack of valid service. 

The law generally provides that consumers are generally barred from bringing certain actions for defamation against consumer reporting agencies, credit report users and informants. An action may be maintained, however, as to false information furnished with malice or willful intent to injure the consumer.  See California Civil Code §§ 1785.31, 1785.32; see also 15 USC § 1681h(e).

Section 1681m of the Fair Credit Reporting Act regulates the use of consumer reports. It prohibits a creditor from selling, transferring for consideration or placing for collection a debt where a consumer reporting agency has notified the creditor that the debt has resulted from identity theft. 15 USC § 1681m(f).

Section 1681m of the Fair Credit Reporting Act also states that if a debt collector acting on behalf of a third party is notified that information relating to a debt to be collected may be fraudulent or the result of identity theft, the debt collector must (1) notify the third party that the information may be fraudulent or the result of identity theft; and (2) upon request by the consumer, provide the consumer with all information to which he or she would otherwise be entitled if the consumer were not a victim of identity theft but wished to dispute the debt. 15 USC § 1681m(g).

This blog post is an excerpt from the book, 5 Steps to Successfully Recover Credit Reputation  Damage. 

If you would like to receive more information on credit damage measurement click here: www.creditdamageexpert.com  

Copyright Georg Finder, all rights reserved. Posted with the express permission of the author.

Georg Finder, an Orange County, CA, Credit Damage Evaluator (CDE), is an expert on credit reporting violations and credit damage measurement. He has more than 15 years experience evaluating credit reports and appearing for both plaintiff and defense.  Mr. Finder has authored numerous articles, including his upcoming book, Divorce credit smarter, not credit out-smarted. He is an MCLE provider on credit report issues and credit reputation damage compensation. Learn more about Georg Finder and his services at www.creditdamageexpert.com  

The creator and owner of this blog, 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.



Follow Stan Burman on Twitter at: https://twitter.com/LegalDocsPro

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California limited civil litigation cases

California limited civil litigation cases are the topic of this blog post. The statutes in California that govern limited civil litigation are found in Sections 85 through 100 of the Code of Civil Procedure.

Code of Civil Procedure section 86 lists several different types of cases which are considered limited civil cases in California. However except for a few exceptions, a limited civil case is a civil case in which the principal demand does not exceed $25,000.00, NOT including attorney’s fees, interest and costs.

In limited civil cases in California the pleadings that are allowed are complaints, answers, cross-complaints, answers to cross-complaints and general demurrers. Special demurrers are not allowed. Motions to strike are only allowed on the ground that the damages or relief sought are not supported by the allegations of the complaint. See Code of Civil Procedure § 92.

The law in California severely limits the number of discovery requests allowed in limited civil litigation. 

Code of Civil Procedure § 94 states that, "Discovery is permitted only to the extent provided by this section and Section 95. This discovery shall comply with the notice and format requirements of the particular method of discovery, as provided in Title 4 (commencing with Section 2016.010) of Part 4.

As to each adverse party, a party may use the following forms of discovery: (a) Any combination of 35 of the following:

(1) Interrogatories (with no subparts) under Chapter 13 (commencing with Section 2030.010) of Title 4 of Part 4.

(2) Demands to produce documents or things under Chapter 14 (commencing with Section 2031.010) of Title 4 of Part 4.

(3) Requests for admission (with no subparts) under Chapter 16 (commencing with Section 2033.010) of Title 4 of Part 4.

(b) One oral or written deposition under Chapter 9 (commencing with Section 2025.010), Chapter 10 (commencing with Section 2026.010), or Chapter 11 (commencing with Section 2028.010) of Title 4 of Part 4. For purposes of this subdivision, a deposition of an organization shall be treated as a single deposition even though more than one person may be designated or required to testify pursuant to Section 2025.230.

(c) Any party may serve on any person a deposition subpoena duces tecum requiring the person served to mail copies of documents, books, or records to the party's counsel at a specified address, along with an affidavit complying with Section 1561 of the Evidence Code. The party who issued the deposition subpoena shall mail a copy of the response to any other party who tenders the reasonable cost of copying it.

(d) Physical and mental examinations under Chapter 15 (commencing with Section 2032.010) of Title 4 of Part 4.

(e) The identity of expert witnesses under Chapter 18 (commencing with Section 2034.010) of Title 4 of Part 4."

Note that form interrogatories do count towards the limit of 35, and that Judicial Council Form DISC-004, titled form interrogatories-limited civil cases must be used as they do not contain subparts.  A fillable PDF version of Judicial Council Form DISC-004 can be viewed or downloaded by using the link shown below.

http://www.courts.ca.gov/documents/disc004.pdf

It should also be noted that the limit of 35 applies to each adverse party so a defendant who is being sued by several plaintiffs may propound a total of 35 discovery requests to each plaintiff and vice versa.

Supplemental interrogatories and supplemental demands to produce documents may still be utilized as I have not found any code section that states that they cannot be used in limited civil litigation.

Any party involved in limited civil litigation in California should carefully review Sections 85 through 100 of the Code of Civil Procedure to ensure that both they and the opposing party are complying with the requirements that are specific to limited civil litigation.

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.

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 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.

 

California dissolution (divorce) document collection for sale

LegalDocsPro offers the California dissolution (divorce) document collection which contains over 45 documents with a list price of over $275.00 if purchased separately but you can purchase the entire collection for only $99.99 which is a discount of over 65% off! Documents include a sample marital settlement agreement, sample qualified domestic relations order, sample requests for production of documents, trial brief and more.

This document collection was just updated on May 4, 2015 with over 5 new documents.

DESCRIPTION:

Sample legal documents for California dissolution (divorce) cases that are included in this package are:

Bifurcation of Divorce in California newsletter issue
California Child Custody and Visitation Modifications newsletter issue
FREE Legal Research Links for California and Federal law
Motion for Attorney Fees in Divorce Case in California
Sample Custody Stipulation for California
Sample Deposition Notice in California
Sample Evidentiary Objections in California Divorce
Sample Ex-Parte Application for Continuance of Trial Date                        
Sample Marital Settlement Agreement
Sample Motion for Reconsideration in California
Sample Motion for New Trial in California
Sample motion for Family Code section 271 sanctions in California divorce
Sample Motion for Set-Aside of Interspousal Quitclaim Deed in California
Sample motion to adjudicate omitted assets in California divorce
Sample motion to correct clerical error in California divorce judgment
Sample motion to modify child custody/visitation in California divorce
Sample Motion to Vacate California Divorce Judgment
Sample Motion to Vacate Divorce Judgment for Duress
Sample Motion to Vacate Divorce Judgment for Fraud and Perjury
Sample Motion to Vacate Divorce Judgment for Mistake
Sample Motion to Vacate Divorce Judgment under CCP section 473
Sample Motion to Vacate Property Settlement Agreement for California
Sample Motion to Vacate Stipulation under CCP section 473
Sample Notice to Appear at Trial and Produce Documents in California
Sample objections to statement of decision in California divorce
Sample Opposition to Motion for New Trial in California
Sample Opposition to Motion for Reconsideration in California
Sample Opposition to Motion to Enforce Settlement Agreement in California
Sample Opposition to OSC to Modify Spousal Support in California
Sample Points and Authorities for Motion to Enforce Settlement Agreement in California
Sample Points and Authorities in Support of OSC to Modify Child Support in California
Sample Qualified Domestic Relations Order in California
Sample Renewed Motion in California
Sample Request for Production of Documents in California
Sample Request for Statement of Decision in California divorce
Sample requests for admission in California divorce
Sample Responses to Family Law Form Interrogatories in California
Sample Responses to Requests for Production of Documents in California
Sample Stipulation for Bifurcation of Marital Status in California
Sample Supplemental Discovery Request in California
Sample Trial Brief for California Divorce case
Uncontested Divorce in California newsletter issue

Rule 60(d)(3) motion to vacate judgment for fraud on the court

http://www.legaldocspro.com/blog/vacating-a-judgment-for-fraud-on-the-court-in-united-states-district-court/

California law and motion documents for sale

LegalDocsPro offers a California law and motion collection with over 55 documents with a list price of well over $1,000.00 but you can purchase the entire collection for only $99.99 which is a discount of over 80% off! That is less than $2.00 per document!

Documents included are demurrers, motions to strike, motions to quash, oppositions and more. All motions and oppositions include brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, declaration if appropriate and proof of service.   A partial list of the documents included in this collection is shown below.

DESCRIPTION:

A partial list of the sample legal documents for California that are included in this package includes:

Sample California Motion for Judgment on the Pleadings for Defendant
Sample California Motion for Judgment on the Pleadings for Plaintiff
Sample California motion for reconsideration
Sample California Motion to Compel further responses to Requests for Documents
Sample California renewal of motion under Code of Civil Procedure section 1008(b)
Sample California reply to opposition to motion
Sample California special motion to strike
Sample Demurrer to Answer for California
Sample Demurrer to California Complaint for Breach of Contract
Sample Demurrer to Complaint for Lack of Standing in California
Sample Demurrer to Fraud Complaint for California
Sample Evidentiary Objections for California
Sample Ex-Parte Application for Temporary Restraining Order in California
Sample Ex-Parte Motion for California
Sample Ex-Parte Motion to Shorten Time for hearing in California
Sample Meet and Confer Letter for California
Sample Motion for Assignment Order for California
Sample Motion for Change of Venue for California
Sample Motion for Further Bill of Particulars for California
Sample motion for judgment notwithstanding the verdict for California
Sample Motion for Leave to Amend a pleading in California
Sample Motion for Leave to File Cross-Complaint in California
Sample Motion for Order Taxing Costs in California
Sample Motion for Terminating Sanctions in California
Sample Motion for Withdrawal of Admissions for California
Sample Motion to Amend Judgment for California
Sample Motion to Compel Further Responses to Special Interrogatories for California
Sample Motion to Compel Production of Documents for California
Sample Motion to Compel Responses to Requests for Production of Documents
Sample Motion to Compel Responses to Special Interrogatories for California
Sample Motion to Enforce Settlement Agreement for California
Sample Motion to Have Matters Deemed Admitted for California
Sample Motion to Quash Service for California under Code of Civil Procedure section 418.10
Sample Motion to Quash Service for Lack of Jurisdiction for California
Sample Motion to Strike Answer to a Complaint for California
Sample Motion to Strike for California
Sample Motion to Vacate California Default Judgment with Attorney Affidavit of Fault
Sample Motion to Vacate Default Judgment for Extrinsic Fraud or Mistake in California
Sample Motion to Vacate Judgment and Quash Service for California
Sample Motion to Vacate Judgment Under CCP Section 473 for California
Sample Motion to Vacate Judgment Under CCP Section 473.5 for California
Sample Motion to Vacate Void Judgment in California
Sample Notice of Intention to Introduce oral testimony for California
Sample Notice of Non-Appearance at Hearing for California
Sample Notice of Ruling for California
Sample Opposition to Application for Right to Attach Order in California
Sample Opposition to California Motion for New Trial
Sample Opposition to Demurrer for California
Sample Opposition to Heggstad Petition for California
Sample opposition to motion for judgment notwithstanding the verdict for California
Sample Opposition to Motion for Judgment on the Pleadings
Sample opposition to motion for reconsideration in California
Sample Opposition to Motion for Summary Judgment in California
Sample Opposition to Motion to Dismiss on Grounds of Inconvenient Forum
Sample Opposition to Motion to Strike for California
Sample opposition to motion to vacate default judgment under Section 473 in California
Sample opposition to motion to vacate default under section 473.5 in California
Sample Points and Authorities in Support of Application for a Right to Attach Order
Sample Request for Judicial Notice for California

A Code of Civil Procedure section 632 request for statement of decision in California

A Code of Civil Procedure section 632 request for statement of decision in California  is the topic of this blog post.

A statement of decision is where the Court states the legal reasoning for its decision on certain contested also known as controverted issues.  A statement of decision can be requested in a civil, family law or probate case in California.  Failure to request a statement of decision on all of the controverted issues in a case can prove fatal to any possible appeal of the case as the reviewing court is required to presume that every fact essential to the judgment was proved and found by the trial court if no statement of decision has been requested.

Any party appearing at trial may request a statement of decision.  If the trial is concluded within one calendar day, or in less than eight hours spread out over more than one day, the request must be made before the matter is submitted for decision.  If the trial is longer than that, the request must be made within 10 days after the court announces a tentative decision. See Code of Civil Procedure § 632.

A trial shall be deemed to actually commence at the beginning of the opening statement or argument of any party or his or her counsel, or if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence. See Code of Civil Procedure § 581(a)(6).

Judicial time off the bench does not count in determining how long a trial  lasts . See Gorman v. Tassajara Development Corporation (2009) 178 Cal. App. 4th 44, 61-63.

The 10-day period for making the request commences at the time the clerk mails the copy of the minute order or decision. See Hutchins v. Glanda (1990) 216 Cal. App. 3d 1529, 1531.

If counsel makes a timely request for the statement, the court's failure to prepare the statement is reversible error. See Social Service Union, Local 535 v. County of Monterey (1989) 208 Cal. App. 3d 676, 681.

The request for a statement of decision must specify the controverted issues for which a statement of decision is requested.  The trial judge is not required to sift through a host of improper specifications in search of a few arguably proper ones. Although a party cannot be prevented from using the request as a way of arguing with the court rather than clarifying the grounds of its decision, a party who makes that choice is not entitled to rely on the resulting document to insulate the judgment from the presumption of correctness.  See Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal. App. 4th 547, 558-559.

When there has been a request for a statement of decision, the statement of decision may be limited to only those issues specified in the request if less than all material issues are specified See Harvard Investment Co. v. Gap Stores, Inc. (1984) 156 Cal. App. 3d 704, 709 n.3. 

If an issue was not brought up at the trial, the reviewing court is under no obligation to address it. See Colony Ins. Co. v. Crusader Ins. Co. (2010) 188 Cal. App. 4th 743, 750-751.

A party waives any objection on appeal based on the trial court's failure to file a written statement of decision when trial lasts less than one day and that party fails to make an oral request, and when language in that party's points and authorities that were alleged to be a written request was not specific, but merely asked court to find in her favor. See Martinez v. County of Tulare (1987) 190 Cal. App. 3d 1430, 1434-1435.

If no statement of decision has been requested, the reviewing court is required to presume that every fact essential to the judgment was proved and found by the trial court. Review in these circumstances is limited to a determination as to whether there is any evidence, contradicted or uncontradicted, to support the judgment. See Agri-Systems, Inc. v. Foster Poultry Farms (2008) 168 Cal. App. 4th 1128, 1134-1135.

Requesting a statement of decision is an excellent way for a party to require that the Court give a detailed explanation of the basis and reasoning behind its decision. This useful tool should be utilized in every case whenever possible.

Attorneys or parties who would like to view a portion of a sample request for statement of decision for California sold by the author can use the link shown below.

Sample request for statement of decision 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.

*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.

 

Over 300 sample legal documents for California and Federal litigation available for sale

LegaDocsPro is offering over 300 sample legal documents for California and Federal litigation. Most of the popular litigation documents are available including answers, complaints, demurrers, motions to dismiss, motions to quash, oppositions and more! All motions and oppositions include brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, declaration where appropriate and proof of service.

For more information visit: View over 300 sample legal documents

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Family Code section 2030 attorney fee award in California dissolution (divorce)

A Family Code section 2030 attorney fee award in California is the topic of this blog post.   Many parties who are involved in dissolution (divorce) litigation in California are not aware that the Courts have the power to order that the other party to the proceeding pay a reasonable amount to allow a party who is representing themselves, known in California as "In Pro Per" to retain an attorney in a timely manner before proceedings in the matter go forward.  This procedure can also be used in a legal separation or nullity proceeding in California as well.

The relevant statutes are contained in Chapter 3.5 of the California Family Code, sections 2030 through 2034. These statutes can be very useful for a party who does not presently have the funds to retain an attorney and has a pending trial or hearing.

In other words if a prospective client who is currently representing themselves without an attorney wishes to retain an attorney they can ask the Court to order the other party to pay so that they can retain an attorney before any trial or hearing. See California Family Code § 2030(b).

And the Court has the authority to make an attorney fees award without notice by an oral motion at the time of a hearing on the cause of the merits. See California Family Code § 2031(b)(1), and at any time before entry of judgment against a party whose default has been entered pursuant to Section 585 or 586 of the Code of Civil Procedure. The court shall rule on any motion made pursuant to this subdivision within 15 days and prior to the entry of any judgment. See California Family Code § 2031(b)(2).

A California Court of Appeal has also stated that the court has the power to impose additional fees than those requested if it determines that the adverse party failed to cooperate in family law proceedings.

The family law judge has discretion to create a "judicial lien" on community or separate property in order to secure payment of section 2030 fees. See California Family Code § 2032[c].

The use of this procedure allows a party who is currently representing themselves without an attorney to "level the playing field". And the procedure allows them to make such a request by an oral motion at the time of any trial or hearing. This is very advantageous to many family law litigants as many of them wish to retain an attorney but cannot afford to pay the thousands of dollars most attorneys charge as an upfront retainer.

In fact the California Supreme Court has stated that it is the public policy in California that both spouses have the ability to obtain effective legal representation.

Attorneys or parties in California who wish to view a portion of a sample memorandum of points and authorities with citations to case law and statutory authority, and sample declaration in support of a request for attorney fees in California sold by the author can use the link shown below.

Sample motion for attorney fees 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 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.

 

 

Definition of vertical stare decisis

The definition of vertical stare decisis is the topic of this blog post. Stare decisis is a legal doctrine that derives from the Latin phrase stare decisis et non quieta movere, meaning to adhere to precedent and not unsettle what is established.  This blog post will discuss vertical stare decisis which deals with the precedential effect of decisions on higher or lower courts. Horizontal stare decisis meaning the effect of decisions by courts at the same level will be discussed in another blog post.

The doctrine of stare decisis is generally one of the first concepts taught in law schools and some  paralegal schools as well as at least a basic understanding of the doctrine is essential for anyone conducting legal research.

The doctrine of vertical stare decisis simply means that the decisions of higher courts are binding precedent on lower courts.  This doctrine applies in both California and federal courts. However there are differences in how the doctrine of vertical stare decisis is applied under California and federal law. There are also differences between what is known as vertical stare decisis and what is known as horizontal stare decisis.

Vertical stare decisis under federal law is fairly straightforward and easy to understand. Essentially the decisions of the U.S. Supreme Court are binding on all other federal courts, decisions of the various circuit courts of appeals are binding on the federal district courts located within each circuit, and the decisions of district courts are not binding authority as they generally have no binding precedential effect although they may still have what is known as persuasive authority.

For example, a district court judge in California is not bound to follow precedent from any circuit court except published decisions from the Ninth Circuit Court of Appeals, which has appellate jurisdiction over the federal courts located in California.  Thus geography, particularly where any given district court sits within a given circuit is very important in federal practice.

Both the federal and state supreme courts are free to overrule their own precedents. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); see also Freeman & Mills, Inc. v. Belcher Oil Co., (1995) 11 Cal. 4th 85, 93.

California Supreme Court decisions bind all lower courts no matter how old the Supreme Court opinion might be. See Lawrence Tractor Co. v. Carlisle Ins. Co., (1988) 202 Cal. App. 3d 949, 954 (1988); see also Mehr v. Superior Court, (1983) 139 Cal. App. 3d 1044, 1049 n.3.

Any Federal court that is applying state law is bound by the highest state authority to have ruled.  For example, the Ninth Circuit may be bound by a decision of the California Supreme Court or the California Court of Appeal if that is the highest court to have addressed the issue of state law. See Johnson v. Frankell, 520 U.S. 911, 916 (1997) (federal courts must follow state’s highest court on question of state law); see also Cal. Pro-Life Council, Inc. v. Getman, 328 F. 3d 1088, 1099 (9th Cir. 2003) (federal courts must follow state’s intermediate appellate courts absent convincing evidence that the state’s highest court would rule differently).

California state courts applying federal law are bound by decisions of the U.S. Supreme Court. See Elliott v. Albright, (1989) 209 Cal. App. 3d 1028, 1034. However they are not bound by any district or circuit court decisions although such rulings are entitled to “substantial deference.” See Yee v. City of Escondido, (1990) 224 Cal. App. 3d 1349, 1351.

Any federal court decisions on state law are not binding on state courts. See Qualified Patients Ass'n v. City of Anaheim, (2010) 187 Cal. App. 4th 734, 764; see also Bodell v. Walbrook (9th Cir. 1997) 119 F. 3d 1411, 1422 (Kozinski, J., dissenting) ("The good thing when a federal court misapplies state law is that its opinion can be ignored by the state courts.")

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.

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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.

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DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

Horizontal stare decisis

Horizontal stare decisis is the topic of this blog post. The term stare decisis derives from the Latin phrase stare decisis et non quieta movere, meaning to adhere to precedent and not unsettle what is established. See In re Osborne, 76 F. 3d 306, 309 (9th Cir. 1996).  Horizontal stare decisis essentially means the effect of decisions by courts at the same level.

The doctrine of stare decisis is usually one of the first concepts taught in law schools and is also taught in some paralegal schools as well as at least a basic understanding of the doctrine is essential for anyone conducting legal research.

Horizontal stare decisis is somewhat different from vertical stare decisis. For instance, in the federal system, an opinion from one circuit court of appeals may be persuasive precedent but is not binding on other courts of appeals. See Hart v. Massanari, 266 F. 3d 1155, 1172-73 (9th Cir. 2001). This allows the circuits to reach contrary decisions suitable for decision by the Supreme Court.

However within the Ninth Circuit for example, horizontal stare decisis operates to bind subsequent panels. Thus, the first panel of Ninth Circuit judges to publish an opinion on an issue binds not only district courts within the circuit but also subsequent Ninth Circuit panels. For the Ninth Circuit to overrule its own precedent, it must issue an en banc decision. See Miranda B. v. Kitzhaber, 328 F. 3d 1181, 1185 (9th Cir. 2003) that case stated that a panel must follow prior panel decisions unless a Supreme Court decision, an en banc decision, or subsequent legislation undermines its precedential value.

However in California the situation is different in that by contrast there is no horizontal stare decisis between appellate panels of the California Court of Appeal. See Marriage of Shaban (2001) 88 Cal. App. 4th 398, 409. So one appellate panel is not bound by the decision of another.

And when there are two published decisions that are in conflict, the superior court “can and must make a choice between the conflicting decisions.”  See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 456.

The California Supreme Court has stated that, there is only one California Court of Appeal, albeit administratively divided into districts and sometimes subdivided into divisions. See Auto Equity Sales, Inc. v. Superior Court, (1962) 57 Cal. 2d 450, 455.

Every superior court must follow any published decision from any district and any division of any court of appeal. See Cuccia v. Superior Court, (2007) 153 Cal. App. 4th 347, 353-54 that case stated that stare decisis requires a superior court to follow a published court of appeal decision even if the trial judge believes the appellate decision was wrongly decided.

There is essentially no horizontal stare decisis in California. Thus panels of the California Court of Appeal are not bound by any decisions of prior panels, even within the same district. Thus, any particular district or division of the court of appeal may disagree with a decision by any other district or division.  This means that while the U.S. Supreme Court regulates circuit-splits from the 13 federal circuits, the California Supreme Court oversees potential splits from what are essentially 19 separate courts of appeal considering each of the six districts plus the divisions within those districts as independent courts.

In this situation, the trial court is free to pick which of the decisions to follow. See Auto Equity Sales, Inc., supra, 57 Cal. 2d at 456 (“where there is more than one appellate court decision, and such appellate decisions are in conflict,” the superior court “can and must make a choice between the conflicting decisions”).

However in actual practice some superior court judges may view this freedom as more theoretical than real. A California Court of Appeal has even stated in a published decision that“a superior court ordinarily will follow an appellate opinion emanating from its own district even though it is not bound to do so.” See McCallum v. McCallum, (1987) 190 Cal. App. 3d 308, 315.

Because of the fact that there is no horizontal stare decisis in California, and because geography has no bearing on the precedential power of a court of appeal decision, a superior court may face the prospect of simultaneously being bound to follow conflicting court of appeal decisions. In this situation, the trial court is free to pick which of the decisions to follow. Auto Equity Sales, Inc., supra, 57 Cal. 2d at 456 (“where there is more than one appellate court decision, and such appellate decisions are in conflict,” the superior court “can and must make a choice between the conflicting decisions”).

Some superior court judges may view this freedom as more theoretical than real, however. In practice, “a superior court ordinarily will follow an appellate opinion emanating from its own district even though it is not bound to do so.” McCallum v. McCallum, 190 Cal. App. 3d 308, 315 (1987).

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.

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DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 


 



 

 

Sewer service by debt collection companies

Sewer service by debt collection companies is the topic of this blog post.  The term sewer service is based on and refers to figuratively and in some cases literally throwing the summons and complaint in the sewers near the homes of defendants such as debtors and then obtaining a default judgment from the court by filing a fraudulent proof of service.  The great majority of cases that I work on are from the State of California although the basic principles discussed in this blog post should be quite similar throughout the United States.

The practice of sewer service is both despicable and absolutely illegal, yet it has been going on for over 40 years in various types of litigation cases and is growing more and more widespread all over the United States, particularly in debt collection cases involving debt collection agencies and debt buyers.

It should be noted that any judgment entered without valid service of process is void anywhere in the United States as the United States Supreme Court ruled unanimously in a case that was decided over 25 years ago that any judgment entered where the defendant was not properly served is void, violates due process and can be set aside at any time.

I honestly do believe that most process servers are honest and would never falsely claim that they served someone whom they had never served. However I also know from my own personal knowledge working in California and Federal litigation since 1995 that extreme cases of sewer service are a fact and I will briefly describe just two of the more outrageous cases I have worked on.

I recently worked on a case where the defendant was supposedly served by substituted service at a mail drop that he had not used as a mailing address for over 2 years, the lawyers for the plaintiff had sent a demand letter to a post office box several months before.  The defendant had no knowledge of the lawsuit or judgment until he was informed by someone that the real property he had sold to them had a lien on it. He then went to the Courthouse and copied the entire Court file. The documents show that one process server with one company had went to the mail drop office several times but that they “cannot verify the address is still used by the defendant”. Another document filed several months later by another process server with another company claims that they performed substituted service on the female employee “who verified the address is still used by the defendant.” 

Several years ago I worked on another case where on the exact date and time that the alleged service was made the defendants were on an airplane and were flying to the Philippines!

Situations such as the two I described earlier are generally good situations in which to seriously consider filing a motion to vacate the default and judgment under Code of Civil Procedure section 473(d) on the grounds that the default and judgment are void due to defective service of process resulting in a judgment void for lack of personal jurisdiction and also request that service of the summons and complaint be quashed.

Attorneys or parties in California that would like to view a portion of an 11 page sample motion to vacate a void judgment under Code of Civil Procedure section 473(d) and quashing service 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 and quash service for California




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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.

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DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 


 

Verification of a California unlawful detainer (eviction) complaint by an attorney

http://www.legaldocspro.com/blog/verification-of-an-unlawful-detainer-complaint-by-an-attorney-in-california/

The banks do not lend real money legal argument

The banks do not lend real money legal argument is the topic of this blog post. This legal argument is referred to by the Courts as the "vapor money theory".  This theory essentially states that “the bank never loaned me any money so I do not owe them anything and the loan agreement is void”. The vapor money theory rests on the totally invalid and mistaken assumption that any agreements entered into with a bank or other financial institution are void because the person receiving the loan did not receive any legal tender and because nothing of value was loaned to them because the transaction was based merely on a bookkeeping entry.

The vapor money theory has NO legal basis whatsoever as I will show in this blog post.

This legal argument is still being used by certain people despite the fact that it has been consistently rejected by the Courts in many jurisdictions.   In fact federal courts across the country have repeatedly labeled this legal argument frivolous.  I have cited many cases below which discuss this legal argument.

In Demmler v. Bank One, NA (S.D.Ohio Mar. 9, 2006), No. 2:05-CV-322, unreported, the defendants made a similar argument and the Court discussed this theory as follows:

“[T]he Court concludes that the complaint is utterly frivolous and lacks any legal foundation whatsoever. * * * Suffice it to say that all of Plaintiff's claims * * * stem from the same basic premise. Plaintiff alleges that the promissory note he executed is the equivalent of "money" that he gave to the bank. He contends that Bank One took his "money," i.e., the promissory note, deposited it into its own account without his permission, listed it as an "asset" on its ledger entries, and then essentially lent his own money back to him. He contends that Bank One did not actually have the funds available to lend to him, but instead "created" the money through its bookkeeping procedures. He further argues that because Bank One was never at risk, and provided no consideration, the promissory note is void ab initio, and Defendants' attempts to foreclose on the mortgage are therefore unlawful.  Plaintiff offers no authority for this patently ludicrous argument. Similar arguments have been rejected by federal courts across the country. See Frances Kenny Family Trust v. World Savings Bank, No. C04-03724 WHA, 2005 WL
106792 (N.D.Cal. Jan. 19, 2005) (sanctioning plaintiffs and rejecting their "vapor money" theory); Carrington v. Federal Nat'l Mortgage Ass'n, No. 05-cv-73429-DT, 2005 WL 3216226, at 3 (E.D.Mich. Nov. 29, 2005) (finding "fundamentally absurd and obviously frivolous" plaintiff's claim that the lender unlawfully "created money" through its ledger entries).

Several published cases from United States District Courts have dealt with this issue such as United States v. Schiefen, 926 F.Supp. 877, 880-81 (D.S.D.1995) (rejecting arguments that there was insufficient consideration to secure the promissory note, and that lender had "created money" by means of a bookkeeping entry. Rene v. Citibank, 32 F.Supp.2d 539, 544-45 (E.D.N.Y.1999) (rejecting claims that because lender did not have sufficient funds in its vault to make the loan, and merely "transferred some book entries," the lender had created illegal tender).

I feel sorry for anyone who still believes in validity of this legal argument because by using that theory they are not only risking losing their case they also face the real risk of being sanctioned by the Court. Note that in the Frances Kenny Family Trust case cited above the attorney for the plaintiffs was sanctioned in the amount of $10,000.00 by the Court. 

While I have no love for the big banks whatsoever I also detest the use of kooky legal theories that have been completely rejected by the Courts.   I wrote this blog post in the hopes that it will convince the uninformed that using the vapor money theory will not work and instead will backfire on them.

Attorneys or parties who wish to view portions of over 300 sample legal documents for California and Federal litigation created by the author of this blog post can use the link shown below.

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.