Claiming prejudgment costs after judgment in California

Claiming prejudgment costs after a judgment in California are the topic of this blog post.  Claiming prejudgment costs after a judgment in California is accomplished by the filing and service of a verified memorandum of costs by the prevailing party entitled to costs.

The law in California states that a memorandum of costs must be verified by the party or their attorney and must be served and filed within a specified deadline. However I do need to emphasize that because each case has different circumstances the actual deadline for any particular case depends on a variety of factors which will be discussed below.

The deadline in California to file and serve a memorandum of costs is stated in California Rule of Court 3.1700(a)(1) which states in pertinent part that, "A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first."

Code of Civil Procedure § 664.5 states that,

“(a) In any contested action or special proceeding other than a small claims action or an action or proceeding in which a prevailing party is not represented by counsel, the party submitting an order or judgment for entry shall prepare and mail a copy of the notice of entry of judgment to all parties who have appeared in the action or proceeding and shall file with the court the original notice of entry of judgment together with the proof of service by mail. This subdivision does not apply in a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation.

(b) Promptly upon entry of judgment in a contested action or special proceeding in which a prevailing party is not represented by counsel, the clerk of the court shall mail notice of entry of judgment to all parties who have appeared in the action or special proceeding and shall execute a certificate of such mailing and place it in the court’s file in the cause.

(c) For purposes of this section, “judgment” includes any judgment, decree, or signed order from which an appeal lies.

(d) Upon order of the court in any action or special proceeding, the clerk shall mail notice of entry of any judgment or ruling, whether or not appealable.

(e) The Judicial Council shall, by January 1, 1999, adopt a rule of court for the purposes of providing that, upon entry of judgment in a contested action or special proceeding in which a state statute or regulation has been declared unconstitutional by the court, the Attorney General is promptly notified of the judgment and that a certificate of that mailing is placed in the court’s file in the cause.”

However I cannot stress enough that in order for a clerk’s notice of entry of judgment to trigger the 15-day deadline it must comply with Code of Civil Procedure § 664.5. In some cases a clerk will simply mail a file-stamped copy of the judgment with something attached known as a “Certificate of Mailing” which does not satisfy the “service pursuant to court order” requirement of subdivision of Code of Civil Procedure § 664.5 and as a result fails to start the 15-day clock as has been stated by the California Supreme Court in at least two cases.

Attorneys or parties in California should carefully review any notice of entry of judgment served by the clerk to determine whether or not the clerk has served a notice of entry of judgment that fully complies with the provisions of Code of Civil Procedure § 664.5 including a statement that document mailed by the clerk is being given upon “order of the court" or "under section 664.5. If the clerk fails to do so and no other party serves and files a notice of entry of judgment the deadline to file and serve a memorandum of costs is 180 days after entry of judgment.

To view over 300 sample legal documents created by the author of this blog post visit: View over 300 sample legal documents for sale

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://www.legaldocspro.net/newsletter.htm for more information.

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

You can view 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.

Motion to correct clerical error in judgment in California

A motion to correct a clerical error in a judgment in California is the topic of this blog post.  

A motion to amend a judgment in California to correct a clerical error is filed pursuant to Code of Civil Procedure section 473(d). This motion is used to correct inadvertence or errors in recording the judgment. However it should be noted that it cannot be used to contest the intended terms of the judgment. The motion can also request that the judgment be amended nunc pro tunc as of the date the original judgment was entered.

A motion to amend a judgment in California to correct a clerical error is filed on the grounds that the recorded terms of the judgment do not agree with the outcome indicated when the judgment was initially declared. This motion is a very limited tool as it is authorized to be used only to correct clerical errors.

However a trial court is given very broad discretion in classifying such errors as an omission or mistake in a judgment; a misdescription in a judgment, inadvertence in signing a faulty judgment, and an ambiguity in a judgment.

The characterization of an error in a judgment as clerical rather than judicial is critical as a clerical error can be corrected at any time, sua sponte by the court or on a motion from one of the parties, even years after the case has closed. But a judicial error can be only corrected on a motion for new trial or on a motion to vacate and enter a new judgment.

Thus the party who is seeking to persuade the court that the error was merely clerical must be very careful and also aware of how to properly characterize the error, and be sure that the error is in fact clerical and not judicial.

However it should also be noted that there are many instances in which an omission or mistake in a judgment has been characterized as a clerical error. These instances include:

An omission in the determination of an account and decree of distribution involving the probate of an estate;

The failure to include a direction that one party pay another party's attorney's and accountant's fees when recording a judgment;

The failure of a judgment to clearly name the defendants, and to state their liability to the plaintiff, and

The California Supreme Court stated in a case decided over 75 years ago that California Courts have the power to correct clerical errors in their judgments at any time, regardless of how much time has passed since the error was made or the judgment entered. See Estate of Goldberg (1938) 10 C2d 709, 717. In that case the Supreme Court stated that a hearing and the resulting order nunc pro tunc correcting a clerical error in a decree of final distribution of an estate 35 years after the original entry was valid.

The California Supreme Court has also stated in a case decided over 40 years ago that all courts have the inherent power to enter an order entering a judgment nunc pro tunc All courts have the inherent power to enter orders for judgments nunc pro tunc so that the judgment will be held effective prior to the date on which it was actually entered.

Used in the right situations, a motion to amend a judgment to correct a clerical error can allow the moving party to correct a clerical error in a judgment, even if years or decades have passed since the date of the original judgment or decree. But the motion should only be used in the right situations.

Attorneys or parties in California who would like to view a portion of a 14 page sample motion to amend a judgment to correct a clerical error containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority; sample declaration, proposed order and proof of service by mail sold by the author can see below.

   Sample Motion to Amend California Judgment to Correct Clerical Error by Stan Burman

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 Subscribe to FREE weekly legal newsletter for more information.

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

You can view 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.

Motion for reconsideration in United States District Court

A motion for reconsideration in United States District Court is the topic of this blog post.   

 This motion is technically known as a motion to alter or amend judgment and is authorized by the provisions of Federal Rule of Civil Procedure 59(e).

This motion must be filed within 28 calendar days after the judgment is entered.  However if used in appropriate situations filing a motion to alter or amend a judgment can be an effective strategy. This motion has another advantage in that a timely-filed motion extends the time to file a notice of appeal under the provisions of Federal Rule of Appellate Procedure 4(a) until the entry of the order disposing of the motion.

District courts have the power to “alter or amend” a judgment by motion under FRCP 59(e).   The deadline for filing a Rule 59(e) motion is the same as a motion for new trial as FRCP 59(e) states that, “(e) Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.”

Although FRCP 59(e) does not state any specific grounds for relief the Courts have ruled that a motion is proper where there is newly discovered evidence, the judgment is based on a clear error committed by the Court or is manifestly unjust, or an intervening change in controlling law since the date of entry of judgment.

Depending on the circumstances of any particular case a party may actually have more than 28 calendar days to file a Rule 59(e) motion as in order to start the clock running on the 28 day deadline requires a final judgment requiring a separate document under Rule 58(a) which is considered entered when the judgment is both entered in the civil docket under Rule 79(a) and either (a) it is set forth on a separate document or (b) 150 days have run from entry of the judgment in the civil docket, whichever occurs first. See Rule 58(c)(2).

The moving party must meet their burden of showing sufficient facts and evidence to support their grounds and must show that a miscarriage of justice will result if the judgment is not altered or amended.

For example a party requesting to alter or amend a judgment on the grounds of newly discovered evidence must show that the newly discovered evidence was not available at the time of the judgment being challenged or if the evidence was available at the time of the judgment being challenged that the party or counsel made a diligent effort to discover the evidence but was unsuccessful.

Any party requesting to alter or amend a judgment on the grounds of a clear error committed by the Court or that the judgment is manifestly unjust must show extreme prejudice as a result of the alleged error or otherwise show that the judgment is somehow manifestly unjust.

Lastly any party requesting to alter or amend the judgment on the grounds of an intervening change in controlling law must specifically state the particular controlling law that has been changed since the date of entry of the judgment and also the effect that change has had on the validity of the judgment.

Attorneys or parties that would like to view a portion of a 13 page sample motion to alter or amend a judgment in United States District Court 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 see 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

You can view sample legal document packages by clicking the link shown below.

View sample document packages

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.

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

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

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

New trial motion in United States District Court

A new trial motion in United States District Court is the topic of this blog post.  

Federal Rule of Civil Procedure Rule 59(a) authorizes the filing of a motion for a new trial on some or all of the issues for civil cases in United States District Court.

A new trial motion can be only be filed using certain grounds and must be filed within 28 calendar days after the judgment is entered.  However in situations where the stakes are high enough filing a motion for new trial can be very useful. Another advantage is that a timely-filed new trial motion extends the time to file a notice of appeal under the provisions of Federal Rule of Appellate Procedure 4(a) until the entry of the order disposing of the motion for new trial.

The main grounds for a motion for new trial under Rule 59(a) after a jury trial are (1) the verdict is against the weight of the evidence; (2) newly discovered evidence: (3) prejudicial conduct by the court or opposing counsel, and (4) juror misconduct although other grounds might apply in certain situations.

Federal Rule of Civil Procedure 59(a) states that,

“(a) In General.

(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues—and to any party—as follows:

(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or

(B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.

(2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.”

Rule 59(b) states that,

”(b) Time to File a Motion for a New Trial. A motion for a new trial must be filed no later than 28 days after the entry of judgment.”

However because each individual case is unique a party may actually have more than 28 calendar days to file the motion for new trial as in order to start the clock running on the 28 day deadline requires a final judgment requiring a separate document under Rule 58(a) which is considered entered when the judgment is both entered in the civil docket under Rule 79(a) and either (a) it is set forth on a separate document or (b) 150 days have run from entry of the judgment in the civil docket, whichever occurs first. See Rule 58(c)(2).

The moving party must meet their burden of showing sufficient facts and evidence to support their grounds and must show that a miscarriage of justice will result if the judgment is not vacated and a new trial granted.

For example a party requesting a new trial on the grounds that the verdict is against the weight of the evidence has the burden of convincing the judge that the verdict is against the clear weight of the evidence or is based on evidence which is false or will result in a miscarriage of justice.

Parties requesting a new trial on the grounds of newly discovered evidence must show that the evidence in question was discovered after the date of the trial; that the moving party exercised due diligence to discover the evidence before the end of the trial; the evidence is material and not merely cumulative or impeaching; and the new evidence would likely have changed the outcome of the case.

A party requesting a new trial on the grounds of prejudicial conduct by the judge or opposing counsel must show that they were so severely prejudiced that they were prevented from having a fair trial.  For example it is improper for a judgment to comment on any ultimate factual issues such as the issue of which party was negligent, which party breached the contract, etc. And a new trial can be ordered in cases where the opposing counsel committed misconduct at the trial that made it reasonably certain that the verdict was influence by the prejudicial statements.  An opening or closing statement incorrectly expands any potential grounds of liability or takes away any benefit the aggrieved party may have won a prior motion such as a motion for partial summary judgment, violating an in limine order or the Federal Rules of Evidence.

The party requesting a new trial on the grounds of juror misconduct must show that the juror misconduct resulted in them suffering prejudice which could include extraneous information obtained by a juror from friends or relatives or a juror introducing facts or evidence acquired outside of the courtroom during jury deliberations.

Attorneys or parties that would like to view a portion of a 16 page sample motion for new trial in United States District Court 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 can see below.

   Sample Motion for New Trial Under Rule 59(a) by Stan Burman

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

You can view sample legal document packages by clicking the link shown below.

View sample document packages
 
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.

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

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 criminal discovery procedure

California criminal discovery procedure is the topic of this blog post.  The statutes governing discovery in criminal cases in California are found in Penal Code sections 1054 through 1054.10. These statutes authorize a defendant in a criminal case in California to request specified materials and information from the prosecuting attorney as long as they comply with their obligation to furnish specified materials and information to the prosecuting attorney.

Section 1054.5(b) of the Penal Code authorizes any defendant in a criminal case in California to request all materials and information specified in Penal Code section 1054.1 from the prosecuting attorney who then has 15 days to furnish the requested items. If the prosecution does not comply the defendant may request a court order for the prosecution to produce the desired materials and information and the court has the discretion to order immediate disclosure, commence contempt proceedings, continue the trial and award other specified relief.

Penal Code § 1054.5 states that,

“(a) No order requiring discovery shall be made in criminal cases except as provided in this chapter. This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant, or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in performing their duties.

(b) Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.

(c) The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted. The court shall not dismiss a charge pursuant to subdivision (b) unless required to do so by the Constitution of the United States.”

Penal Code § 1054.1 states that,

“The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:

(a) The names and addresses of persons the prosecutor intends to call as witnesses at trial.

(b) Statements of all defendants.

(c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.

(d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.

(e) Any exculpatory evidence.

(f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.”

However before serving a request for discovery in a criminal case the defendant or their attorney should be sure to comply with the provisions of Penal Code § 1054.3 that require disclosure of specified materials and information.

Penal Code § 1054.3 states in pertinent part that,

“(a) The defendant and his or her attorney shall disclose to the prosecuting attorney:

(1) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial.

(2) Any real evidence which the defendant intends to offer in evidence at the trial.

(b) (1) Unless otherwise specifically addressed by an existing provision of law, whenever a defendant in a criminal action or a minor in a juvenile proceeding brought pursuant to a petition alleging the juvenile to be within Section 602 of the Welfare and Institutions Code places in issue his or her mental state at any phase of the criminal action or juvenile proceeding through the proposed testimony of any mental health expert, upon timely request by the prosecution, the court may order that the defendant or juvenile submit to examination by a prosecution-retained mental health expert.”

Serving a request for discovery under Penal Code § 1054.5 should be done at the same time that the defendant or their attorney provides the prosecuting attorney with the specified materials and information specified in Penal Code § 1054.3.

Attorneys or parties in California that would like to view or download a sample request for discovery under Penal Code section 1054.5(b) created by the author can use the link shown below. 

Sample request for discovery in California ciminal case

  

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

You can view sample legal document packages by clicking the link shown below.

http://www.legaldocspro.com/products_main.aspx
 
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.

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


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.

Stay of enforcement of judgment in California

A stay of enforcement of a judgment in California is the topic of this blog post.  Code of Civil Procedure section 918 is the statutory authorization for a trial court to stay the enforcement of any judgment but only for a limited period of time.  For most California judgments such as money judgments the trial court can stay the enforcement for no more than 10 days beyond the last date on which a notice of appeal could be filed.

A request for a stay of enforcement of a California judgment requires that the moving party file a notice motion or ex-parte application for what is known as a stay of execution of the judgment.

Any parties in California that have had had a money judgment entered against them in California need to realize the vital importance of immediately seeking a stay of execution of any money judgment as soon as possible after the judgment has been entered as Code of Civil Procedure section 683.010 states that, “Except as otherwise provided by statute or in the judgment, a judgment is enforceable under this title upon entry.” This means that California law states that a judgment creditor can begin collection proceedings to enforce the judgment as soon as the judgment has been entered by the clerk of the court, in some cases that may be the same day!

In cases where the judgment creditor appears to be particularly aggressive and a party believes that they may begin collection efforts right away they may wish to file an ex-parte application for a stay of execution.

The period of time in which the execution of a judgment may be stayed varies depending on whether the case is a limited civil or unlimited civil case and whether or not a notice of entry of judgment has been served by either the clerk of the court or any other party to the action. Therefore every case is unique and this is the reason there are several different deadlines for filing a notice of appeal for both limited civil case and unlimited civil cases. Examples of the different deadlines will be given below.

California Rule of Court 8.822 governs the deadline for filing a notice of appeal in limited civil cases.

For most limited civil cases in which the clerk of the court or any party has served a notice of entry of judgment on the defendant the deadline to file a notice of appeal is 30 days from the date that the notice of entry of judgment is served on the defendant.

For most limited civil cases if no notice of entry of judgment was served on the defendant the deadline to file a notice of appeal is 90 days from the date that the judgment is entered by the clerk of the court.

California Rule of Court 8.104 governs the deadline for filing a notice of appeal in limited civil cases.

For most unlimited civil cases in which the clerk of the court or any party has served a notice of entry of judgment on the defendant the deadline to file a notice of appeal is 60 days from the date that the notice of entry of judgment is served on the defendant.

For most unlimited civil cases if no notice of entry of judgment was served on the defendant the deadline to file a notice of appeal is 190 days from the date that the judgment is entered by the clerk of the court.

Although the trial court has the power to stay enforcement of the judgment whether or not a notice of appeal has been filed the truth is that there are some judges who may only grant a stay of enforcement in the following situations:

The moving party had a judgment obtained against them through default and they have filed or will file a motion to vacate that judgment that shows valid grounds for vacating the judgment.

The moving party has already filed a notice of appeal or will file a notice of appeal and can show at least facially plausible grounds for appealing the judgment and the moving party can make a strong showing that they will suffer irreparable injury if execution of the judgment is not stayed.

The moving party should include a detailed declaration with specific facts and evidence detailing the irreparable harm they will suffer if a stay of execution is not granted and should also include any relevant documents as exhibits.

Possible grounds could include that the judgment was obtained by default and the moving party has filed or will file a motion to vacate the judgment, enforcement of the judgment will cause the sale of a key asset of significant value, would destroy an ongoing business or would precipitate insolvency or bankruptcy.

Attorneys or parties in California that would like to view a portion of a sample 17 page ex-parte application for of execution of judgment containing includes brief instructions, a memorandum of points and authorities, sample declaration, sample declaration regarding ex-parte notice and proposed order sold by the author can use the link shown below.

Ex-parte application for stay of execution of judgment in California

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

View over 300 sample legal documents for sale

You can view sample legal document packages by clicking the link shown below.

http://www.legaldocspro.com/products_main.aspx
 
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. 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

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.

Federal Rule of Civil Procedure 4(d) request for waiver of service of summons

A Federal Rule of Civil Procedure 4(d) request for waiver of service of summons is the topic of this blog post.  Rule 4(d) of the Federal Rules of Civil Procedure imposes a duty on any defendant who is an individual that is not a minor or incompetent, a corporation or association to avoid the unnecessary expenses of serving the summons.  

This blog post will discuss both the advantages and the disadvantages of serving a request for waiver of service of summons under Rule 4(d) which is also known as a notice of lawsuit and request for waiver of service of a summons and can be used in civil litigation in United States District Court.

A request under Rule 4(d) has some to both the plaintiff and the defendant being served with the use of a notice of lawsuit and request for waiver of service of a summons in that the plaintiff avoids the time and expense of issuing and serving the summons and complaint and the defendant is allowed 60 days after the request for a waiver is sent to respond to the summons and complaint if they are located within the United States of America. This is substantially longer than the 21 days allowed under Federal Rule of Civil Procedure 12(a)(1)(A)(i).  And the defendant is still entitled to raise all defenses or objections to the lawsuit, the court’s jurisdiction, and the venue of the action.

However there are disadvantages to the use of a Rule 4(d) notice which are listed near the end of this blog post.

Rule 4(d) states that,

“(d) Waiving Service.

(1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must:

(A) be in writing and be addressed:

(i) to the individual defendant; or

(ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process;

(B) name the court where the complaint was filed;

(C) be accompanied by a copy of the complaint, 2 copies of a waiver form, and a prepaid means for returning the form;

(D) inform the defendant, using text prescribed in Form 5, of the consequences of waiving and not waiving service;

(E) state the date when the request is sent;

(F) give the defendant a reasonable time of at least 30 days after the request was sent—or at least 60 days if sent to the defendant outside any judicial district of the United States—to return the waiver; and

(G) be sent by first-class mail or other reliable means.

(2) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:

(A) the expenses later incurred in making service; and

(B) the reasonable expenses, including attorney's fees, of any motion required to collect those service expenses.

(3) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent—or until 90 days after it was sent to the defendant outside any judicial district of the United States.

(4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.

(5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.”

The main disadvantage to the plaintiff with the use of a notice of lawsuit and request for waiver of service of a summons is that the plaintiff assumes the risk that the defendant may not actually receive the notice and request for waiver or that they will not comply in signing and returning the waiver waiver.

The main disadvantage to the defendant being served is that they waive any objections that no summons was served, or that the service was defective in any way.

Attorneys or parties who would like to view or download a 5 page sample notice of lawsuit and request for waiver of service containing brief instructions as well as a sample waiver of the service of a summons containing all required statutory language created by the author can usse the link shown below.

Sample Rule4(d) Request for Waiver of Service of Summons

 

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 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.

Vacating a California arbitration award under Code of Civil Procedure section 1286.2

Vacating a California arbitration award under Code of Civil Procedure section 1286.2 is the topic of this blog post. Code of Civil Procedure section 1286.2 is the statute that lists the grounds on which a California award of arbitrator may be vacated.   These awards are also referred to as an award of arbitrator or by the technical name of arbitral award.

Anyone considering a petition to vacate a California arbitration award must file that petition within 100 days after the date a signed copy of the award is served on the petitioner as required by Code of Civil Procedure section 1288 or their petition will most likely be denied.

Vacating a California arbitration award is somewhat difficult unless the petitioner can make a sufficient showing that one of the grounds listed in Code of Civil Procedure section 1286.2 applies in their case.

Code of Civil Procedure §1286.2 states in pertinent part that,

“(a) Subject to Section 1286.4, the court shall vacate the award if the court determines any of the following:

(1) The award was procured by corruption, fraud or other undue means.

(2) There was corruption in any of the arbitrators.

(3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator.

(4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.

(5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title.

(6) An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision.”

California case law exists regarding the issue of vacating an arbitration award as several decisions of both the California Supreme Court and Courts of Appeal have discussed when a arbitration award may be vacated.

It is established that the scope of judicial review of arbitration awards is extremely narrow in both the trial and appellate courts. See Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11, 33.

However in a more recent case the California Supreme Court stated that the Legislature has provided for judicial review of arbitration awards in situations where there are serious problems affecting the fairness of arbitration process.

And the California Supreme Court stated in another case that in order to ensure the integrity of the arbitration process it is essential that the arbitrator must be neutral.

A fairly recent case from a California Court of Appeal stated that the arbitrator must give all of the parties to the dispute an adequate opportunity to present their evidence and arguments and if they fail to do so that may be grounds for vacating the award.

Other recent California Court of Appeal cases have stated that if an arbitrator fails to decide an issue submitted to them that this may constitute grounds for vacating the award and that courts may vacate an award where it violates a well-defined public policy.

However the party petitioning to vacate the award on the grounds of fraud has the burden of making a sufficient showing of fraud as another California Court of appeal case stated that the petitioner must show that they did not have the opportunity to rebut or discover and then reveal the alleged fraud at the arbitration hearing.

In certain cases the court may order a rehearing before new arbitrators as Code of Civil Procedure § 1287 states in pertinent part that, “If the award is vacated, the court may order a rehearing before new arbitrators.”

As mentioned earlier a petition to vacate an arbitration award should be considered in situations where the party can show sufficient facts and evidence to support one of the valid grounds and files a timely petition to vacate the award.

Attorneys or parties in California that would like to view a portion of a sample 14 page petition to vacate arbitration award containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and sample declaration sold by the author can use the link shown below.

Sample petition to vacate arbitration award in California

 

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

View over 300 sample legal documents for sale

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