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Tuesday, February 24, 2015

Vacating a judgment under Rule 60(b)(6) in Federal Court



Vacating a judgment under Rule 60(b)(6) in Federal Court is the topic of this blog post. Rule 60(b)(6) of the Federal Rules of Civil Procedure (Rule 60) states that a Court can vacate a judgment for any other reason that justifies relief.  Rule 9024 of the Federal Rules of Bankruptcy Procedure states that Rule 60 applies to proceedings in United States Bankruptcy Court so this motion can be filed in bankruptcy cases as well.

Vacating a judgment under Rule 60(b)(6) is much harder filing a motion under clauses 1-5 of Rule 60(b) because the Courts have ruled that this motion can only be granted in extraordinary circumstances to prevent a manifest injustice.  If you have an extraordinary situation than this motion makes sense, particularly in situations where the facts of the case do not meet the requirements of clauses 1-5 of Rule 60(b) but extraordinary circumstances exist.

Rule 60 states in pertinent part that “(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:  (6) any other reason that justifies relief.”

And Rule 60 also states that “(c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

The Ninth Circuit Court of Appeals as well as other Circuit Courts of Appeal have stated that there is no strict time limitation on filing a motion to vacate a judgment under clause (6) of Rule 60(b) although in my personal opinion any party should file their motion as soon as possible after they have knowledge that a default judgment has been entered against them as the motion must be made within a reasonable time and a motion filed under clause (6) is generally hard to obtain except in very unusual circumstances.

However the Ninth Circuit Court of Appeal has stated that Rule 60, like all the Federal Rules of Civil Procedure, “is to be liberally construed to effectuate the general purpose of seeing that cases are tried on the merits.” Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983) (internal citations omitted.)

See also Federal Rule of Civil Procedure 1, “The Federal Rules should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

Attorneys or parties in civil litigation in United States District Court who wish to view a portion of an 11 page sample motion to vacate judgment under Rule 60(b)(6) that includes 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 under Rule 60(b)(6)

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.
 

 


Tuesday, February 17, 2015

Sunday, February 15, 2015

Code of Civil Procedure section 632 statement of decision in California divorce case



A Code of Civil Procedure section 632 statement of decision in a California divorce case is the topic of this blog post.   Code of Civil Procedure section 632 and Family Code section 210 authorize a request for a statement of decision in California divorce or other family law cases such as legal separation or nullity cases.

Requesting a statement of decision is an excellent idea in any contested divorce or other family law case in California but is particularly useful in situations when there are numerous issues such as child custody and visitation, child support, spousal support etc., that were decided at the trial.

Requesting a statement of decision allows the party to require the Court to state the legal reasoning for its decision on certain contested issues which in legal terminology are known as controverted issues.  A statement of decision is extremely important in most if not all cases as failing to make a timely request for a statement of decision on all of the controverted issues in a case is almost always 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 the trial may request a statement of decision.  Code of Civil Procedure § 632 states in pertinent part that 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.

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).

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 party requesting a statement of decision should be sure to include all important controverted issues in their request as a California Court of Appeal has stated that 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 any party involved in contested divorce proceedings in California to require that the Court give a detailed explanation of the basis and reasoning behind its decision on the controverted issues.

Attorneys or parties in California who would like to view a portion of a sample 7 page request for statement of decision in a California divorce case that includes brief instructions as well as a sample proposal for content of statement decision and proof of service by mail sold by the author can use the link shown below.

Sample request for statement of decision 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.
 

Wednesday, February 11, 2015

Code of Civil Procedure section 631.8 motion for judgment in a California eviction



A Code of Civil Procedure section 631.8 motion for judgment in a California eviction is the topic of this blog post.  A motion for judgment in a California eviction is authorized by Code of Civil Procedure sections 631.8 and 1177.  A motion for judgment has a very important advantage compared to a motion for nonsuit in that in ruling on a motion for judgment the trial court is permitted to weigh the evidence and can also make factual findings based on the evidence the plaintiff or opposing party presented. The disadvantage of a motion for judgment is that it can only be used in a non-jury or bench trial.

Code of Civil Procedure § 631.8 states that,

“(a) After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision as provided in Sections 632 and 634, or may decline to render any judgment until the close of all the evidence. The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party. Such motion may also be made and granted as to any cross-complaint.

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

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

A party may file a motion for judgment in a California eviction case as Code of Civil Procedure § 1177 states that, “Except as otherwise provided in this Chapter the provisions of Part II of this Code are applicable to, and constitute the rules of practice in the proceedings mentioned in this Chapter.”

A California Court of Appeal has ruled that a motion for judgment allows the trial court to dispense with the need for a party, usually but not always the defendant, to present evidence when, after weighing the evidence at the close of the plaintiff's case, the court is persuaded that the plaintiff has failed to sustain its burden of proof.

Another California Court of Appeal has ruled that while a motion for judgment is usually made by a defendant the same principles apply to a motion by the plaintiff at the close of the defendant's case.

As with a motion for nonsuit a judgment operates as an adjudication upon the merits unless the court in its order for judgment otherwise specifies. See Code of Civil Procedure section 631.8(c).

A defendant or other party prevailing on a motion for judgment is entitled to recover their costs. See Code of Civil Procedure section 1032(b).     

Attorneys or parties in California who would like to view a portion of a sample 15 page motion for judgment that includes a memorandum of points and authorities, sample declaration and proposed order sold by the author can use the link shown below.


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.
 

Friday, February 6, 2015

California postnuptial agreement



A California postnuptial agreement is the topic of this blog post. Another name for a postnuptial agreement is an antenuptial agreement. This agreement is basically awritten contract executed by couples after they have gotten married or entered into a civil union and is designed to finalize the settlement of the affairs of the couple in the event that they separate or get divorced. 

A postnuptial agreement is similar to a prenuptial agreement in that they generally include
provisions for the division of property and debts as well as spousal support if the couple gets divorced or separates from each other.  The use of postnuptial agreements is becoming more common although they are not presently as widely used as prenuptial agreements.

The California law supporting the validity of a postnuptial agreement is Family Code § 1500, which states that, "The property rights of husband and wife prescribed by statute may be altered by a premarital agreement or other marital property agreement."

California Family Code § 1502 states in part that such agreements are to be "executed and acknowledged or proved in the manner that a grant of real property is required to be executed and acknowledged" if they are to be recorded in the office of the recorder.  It is always good practice to have all parties to any written agreement, particularly a postnuptial agreement to have their signatures notarized.

Any postnuptial agreement must have all of the basic elements required for a valid contract such as:

Offer
Acceptance
Consideration
Mutual assent
Legality
Capacity

A postnuptial agreement in California should also meet the following requirements:

Be in writing
Must be executed voluntarily
Must be done with full and/or fair disclosure at the time of execution
Must not be unconscionable
Must be executed by both parties (not their attorneys) "in the manner required for a deed to be recorded", known as an acknowledgment, before a notary public  

Any married couple or any couple who has entered into a civil union who have not previously entered into a prenuptial agreement should consider the use of a postnuptial agreement in order to finalize the settlement of their affairs in the event that they separate, get divorced or wish to dissolve their civil union. 

Attorneys or parties in California who would like to view a portion of a 25 page sample postnuptial agreement containing brief instructions, two lists of property and financial obligations and two notary acknowledgments sold by the author can use the link shown below.


Attorneys or parties who would like to view portions of over 250 sample legal documents for California and Federal litigation sold by the author of this blog post can use the link shown below.

View over 250 sample legal documents for sale

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 255 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 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 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, February 4, 2015

California prenuptial agreement



A California prenuptial agreement is the topic of this blog post.  A California prenuptial agreement is also known as a premarital agreement and is governed by Family Code sections 1600 through 1617.

The number of prenuptial agreements in California has increased dramatically over the past twenty years as a growing number of California residents want to have a binding agreement that will specify how community and separate property and debts will be dealt with along with other important marital rights such as the right to spousal support in the event that the marriage does not work out. One very important detail that everyone should be aware of is the fact that unless both parties were represented by independent counsel of their own choosing any waiver of spousal support in a prenuptial will be unenforceable pursuant to Family Code section 1612.

Parties who are contemplating entering into a prenuptial agreement in California should make sure that they strictly follow all of the statutory requirements as failure to do so will result in a Court finding the agreement unenforceable.

Family Code § 1612 states that,
 
“(a) Parties to a premarital agreement may contract with respect to all of the following:

(1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.

(2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.

(3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.

(4) The making of a will, trust, or other arrangement to carry out the provisions of the agreement.

(5) The ownership rights in and disposition of the death benefit from a life insurance policy.

(6) The choice of law governing the construction of the agreement.

(7) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

(b) The right of a child to support may not be adversely affected by a premarital agreement.

(c) Any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement. An otherwise unenforceable provision in a premarital agreement regarding spousal support may not become enforceable solely because the party against whom enforcement is sought was represented by independent counsel.”

It should be noted that even the fact that both parties have their own independent counsel that does not guarantee that a court will uphold a waiver of spousal support in a prenuptial agreement.   Family Code § 1615(C)(2) states that both parties must have at least seven (7) calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed or the agreement may be considered unenforceable.

Family Code § 1615 should be carefully reviewed by anyone considering the use of a premarital agreement as it is very detailed as to the circumstances under which a prenuptial agreement may be held unenforceable.

Attorneys or parties in California who would like to view a portion of a 24 page prenuptial agreement for California that includes brief instructions, lists of property and financial obligations for both parties, all required statutory wording and two notary acknowledgments that is sold by the author can use the link shown below.

Sample prenuptial agreement for California

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

View over 250 sample legal documents for sale

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

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

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

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

DISCLAIMER:

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

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