Written agreements for unmarried couples in California

Written agreements for unmarried couples in California are the topic of this blog post.

Any unmarried couples in California that are living together should consider the use of a written agreement detailing their rights and obligations to each other.  This type of written agreement is known by several names including a living together agreement and a Cohabitation Agreement.

The main reason for unmarried couples to consider using a living together agreement is the simple fact that most unmarried couples that start living together and set up a household generally will have their own separate expectations regarding their finances and what their obligations to each other are, or will be.  

The basic problem is that most unmarried couples exhibit a lack of communication as to their expectations and that can lead to serious trouble down the road for the simple reason that one partner may expect that each partner will retain their own separate property, and that neither of them will be obligated to support the other partner in the event that they end their relationship. However the other partner may have exactly the opposite expectation. If the couple ends their relationship, these conflicting expectations can lead to tremendous distress and unhappiness in the lives of both partners.

Consider a hypothetical situation where one partner is much wealthier than the other partner, and the relationship breaks up. The wealthier partner may be served with a lawsuit by the other partner for what is commonly known as "palimony", with the other partner claiming that the wealthier partner promised that they would support him or her for life, and/or that all property acquired during the relationship would belong to both partners equally in the event that the relationship ended.

If there is no written agreement governing their rights and obligations, the wealthier partner could be found legally obligated and ordered by a court to divide their property with and/or pay support to the other partner, even if a desire to avoid these obligations was the very reason they did not marry their partner in the first place.

This situation is both quite common and particularly relevant in the State of California which is one of the most litigious States in the United States and is also where the term “palimony” was first used in reference to the landmark California Supreme Court case of Marvin v. Marvin (1976) 18 Cal.3d 660, 674.

To use another common example, one partner may have quit their job to make a home for their partner, who in return promised that they would always be "taken care of," only to find when they break up that all of the assets acquired "together" are in the other partner's name, and the other partner is denying that he or she ever made any promises to their partner.

In the State of California as well as some other States, the courts do generally enforce most agreements between unmarried cohabitants regarding their property. These agreements fall into three categories: implied, oral, and written. Written agreements that are signed by both parties, while they may not be perfect are still much more effective compared to oral and implied agreements in terms of providing the parties with some measure of certainty. Having a written document helps insure that the partners and not a future jury will determine exactly what the terms of the agreement are. They also provide each partner with an opportunity to communicate and clarify their expectations of each other.

To avoid any misunderstandings, both partners should discuss their expectations regarding financial matters before they move in together. When they do, they may find out that the two of them have very different understandings as to what their understanding really is.

Once both partners have talked through the issues and reached a mutual understanding, they should put that agreement in writing.

Attorneys or parties in California who would like to view a portion of a 12 page sample Cohabitation Agreement sold by the author can see below. 

Sample Cohabitation Agreement by Stan Burman

 
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.

You can view portions of over 300 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro

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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.

Requesting judicial notice in California

Requesting judicial notice in California is the topic of this blog post.

The statutes governing judicial notice are contained in Evidence Code Sections 450 through 460.

Evidence Code § 451 states that the Court must take judicial notice of the following matters:

(a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution.

(b) Any matter made a subject of judicial notice by Section 11343.6, 11344.6, or 18576 of the Government Code or by Section 1507 of Title 44 of the United States Code.

(c) Rules of professional conduct for members of the bar adopted pursuant to Section 6076 of the Business and Professions Code and rules of practice and procedure for the courts of this state adopted by the Judicial Council.

(d) Rules of pleading, practice, and procedure prescribed by the United States Supreme Court, such as the Rules of the United States Supreme Court, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Admiralty Rules, the Rules of the Court of Claims, the Rules of the Customs Court, and the General Orders and Forms in Bankruptcy.

(e) The true signification of all English words and phrases and of all legal expressions.

(f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute.

Evidence Code § 452 states that the Court may take judicial notice of the following matters:

(a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state.

(b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.

(c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.

(d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.

(e) Rules of court of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.

(f) The law of an organization of nations and of foreign nations and public entities in foreign nations.

(g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.

(h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.

Judicial notice may not be taken of any matter unless authorized or required by law. See Evidence Code § 450.

Any party requesting judicial notice must give notice of such request to each adverse party to enable that party to meet the request, and must furnish the Court with sufficient information to enable it to take judicial notice of the matter. See Evidence Code § 453.

Note that judicial notice of other Court records and files is limited to matters that are indisputably true. See Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App. 4th 97, 113. This means that judicial notice is limited to the orders and judgments in the other court file, as distinguished from the contents of documents filed therein.

However, there are exceptions to this rule when a party amends a pleading, particularly a verified pleading and omits material factual allegations that were included in the original pleading without an adequate explanation.

"The general rule is that material factual allegations in a verified pleading that are omitted in a subsequent amended pleading without adequate explanation will be considered by the court in ruling on a demurrer to the later pleading." Shoemaker v. Myers (1990) 52 Cal. 3d 1, 13.

Judicial notice is a very useful tool for any party involved in California civil litigation. They just need to be aware of its limitations.

Attorneys or parties in California who wish to view a sample request for judicial notice created by the author can click below.

www.scribd.com/doc/37754803

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

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.

Visit his website at http://www.legaldocspro.com

Subscribe to his weekly newsletter with legal tips and tricks for California and Federal litigation. http://www.legaldocspro.net/newsletter.htm

Default judgment by the court clerk in California

A default judgment by the court clerk in California is the topic of this blog post. 

In the State of California, the court clerk is authorized upon a request by the plaintiff to enter a default judgment against the defendant without a court hearing or judicial action of any kind. However, the law does strictly limit the power of the court clerk to enter a default judgment and the requirements are strictly construed.

Entry of a default judgment by the court clerk is authorized only in the following situations: (1) The action is one "arising upon a contract or judgment"; (2) the action seeks recovery of "money or damages only" in a fixed or determinable amount; and (3) Defendant was not served by publication.

In unlawful detainer cases, the clerk will enter judgment for possession of the premises immediately upon proper request therefor. However, plaintiff must apply to the court for damages or any other relief sought in the complaint including court costs. See Code of Civil Procedure § 1169.

The first requirement for a clerk's judgment is that the action be one "arising upon a contract or judgment " See Code of Civil Procedure § 585(a). This includes implied, as well as express, contracts such as actions in quasi-contract as long as the judgment is for a fixed and determinable amount.

The clerk is authorized to enter default judgment in an action based on a judgment rendered in any previous court action, and this power is not limited to California judgments. See Code of Civil Procedure § 585(a).

The recovery sought must be of "money or damages only." The courts have construed this language narrowly. As a result, in an action based on contract, the amount due must either be fixed in the contract itself, or be determinable by calculation from its terms. If there is any uncertainty as to the amount due, the court clerk has no power to resolve it. Instead, a court judgment will be required. See Liberty Loan Corp. of North Park v. Petersen (1972) 24 Cal.App 3d 915, 919.

The court clerk is authorized to enter a default judgment where the amount due can be computed from the contract itself such as:

Actions on open book accounts such as running charge account balances. See Diamond National Corp. v. Golden Empire Builders, Inc. (1963) 213 Cal.App. 2d 283, 288, 289.

Action on account stated (statements received and accepted by defendant showing charges and credits to date). See Fallon & Co. v. United States Overseas Airlines, Inc. (1961) 194 Cal.App. 2d 546, 551, 552.

But the court clerk cannot adjudicate the amount due by taking evidence or exercising discretion. Thus, where the amount claimed by plaintiff cannot be computed from the contract itself, the court clerk has no power to enter judgment. A judgment by the court is required in such situations as:

Action for an accounting. See Crossman v. Vivienda Water Co. (1902) 136 Cal. 571, 574.

Action for "reasonable value" of property or services conferred; or "net profits" of a business. See Gray v. Laufenberger (1961) 195 Cal.App. 2d Supp. 875, 878.

Action on a secured promissory note claiming that security has become "worthless". The Court in one case ruled that testimony was necessary to determine whether this is so. See Ford v. Sup.Ct. (Orton) (1973) 34 Cal.App 3d 338, 342.

Action on a secured promissory note for $500, where the demand was only $253, without any explanation as to how reduction occurred, the Court ruled that the complaint failed to negate the possibility that the collateral securing the note had not been dealt with or sold. See Liberty Loan Corp. of North Park v. Petersen (1972) 24 Cal.App 3d 915, 919, 920.

If the complaint includes a demand for attorney fees, this may affect the clerk's power to enter a default judgment.

If the contract sued upon stipulates the amount of attorney fees recoverable in such action, the clerk is authorized to enter judgment accordingly. For example if the Promissory note provides for attorney's fee in an amount equal to 10% of principal and interest due the court clerk can compute and enter the amount.

But where the contract merely calls for an "attorney's fee as fixed by the court," or a "reasonable attorney's fee," the court clerk has no power to determine the amount. See Landwehr v. Gillette (1917) 174 Cal.654, 657, 658.

Courts are authorized to adopt schedules of attorney fees allowable in default cases where a statute or contract authorizes fee awards such as actions on a promissory note containing an attorney fee provision. See California Rule of Court 3.1800(b). Where such fee schedules are in effect, and plaintiff is willing to accept the scheduled fee, the court clerk may include that amount in the default judgment. See Code of Civil Procedure § 585(a).

If the causes of action joined in a complaint are in fact, separate and distinct, the clerk can enter default judgment on the "contract" or "judgment" cause of action only. Plaintiffs who want judgment on the other cause of action as well will have to obtain a default judgment from the court. See Norman v. Berney (1965) 235 Cal.App 2d 424, 431, 432. This means that if a complaint joins a cause of action for breach of a construction contract with a cause of action to foreclose a mechanic’s lien for work done, the clerk can enter default judgment only on the "contract" cause of action. If the plaintiff wants his mechanic's lien foreclosed, he will have to obtain a court judgment.

But the clerk cannot enter a valid default judgment where the "contract" cause of action is merely an alternative theory for recovery on a claim that otherwise does not qualify for a clerk's default judgment. See Brown v. Sup.Ct. (Stewart) (1966) 242 Cal.App 2d 519, 525. For example if a complaint joined a cause of action for "reasonable value" of services rendered with cause of action for "account stated" based on billings for same services the clerk could not enter a default judgment on the "reasonable value" count because there is no fixed or determinable amount, and the "account stated" claim is merely an alternative theory for recovery, the clerk has no authority to enter default judgment on either count. A court judgment is required.

A promissory note or other written obligation to pay money such as a negotiable instrument, if any, upon which the action is brought must be submitted to the clerk. The court clerk is required to note across the face of the writing, over his official signature, the date and fact that judgment has been rendered on such contract. See California Rule of Court 3.1806.

If the original writing has been lost or destroyed, plaintiff should obtain a declaration to that effect and apply for an ex parte court order directing the court clerk to accept a copy in lieu of the original. Otherwise the clerk cannot enter judgment as the clerk must have the original writing in order to enter a judgment unless the court orders otherwise.

If the action is one to enforce an earlier judgment, a certified copy of that judgment must be provided to the clerk in order for them to enter the judgment.

And where the action is on an open book account, the court clerk may require copies of the bills or invoices, and a declaration negating the existence of any written agreement with the defendant.

And it should also be stressed that if a clerk’s judgment is obtained and the clerk awards attorney fees pursuant to the schedule of the court then plaintiff will not be allowed attorney fees as a cost of enforcing any judgment because the fees were not awarded pursuant to a contract. See Code of Civil Procedure § 685.040 which states that attorney fees incurred for enforcing a judgment are not included as costs unless the underlying judgment includes an award of attorney fees pursuant to a contract. See also Code of Civil Procedure § 1033.5(10)(a).

The attorney fees are considered to have been awarded pursuant to the court’s schedule. This can prove to be a major tactical mistake if the plaintiff is seeking a large judgment and anticipates that enforcement of the judgment will be difficult. In that case, it may be better to obtain a court judgment where a judge can award "reasonable" attorney fees pursuant to a contract.

Plaintiff should find out beforehand how long it usually takes to obtain a clerk’s default judgment in the court in which their case is pending as some court’s take almost as long to enter a clerk’s judgment as they do to enter a court judgment. And a party is not required to obtain a clerk's default judgment, even in cases in which it is available.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

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.

 Visit his website at http://www.legaldocspro.com

Subscribe to his weekly newsletter with legal tips and tricks for California and Federal litigation. http://www.legaldocspro.net/newsletter.htm

Demanding a bill of particulars in California civil litigation, part two

This blog post is part two of a discussion of the issues involved in demanding a bill of particulars in California civil litigation.

A demand for a bill of particulars is a procedure outside the Discovery Act, but it serves a discovery purpose: It enables defendants who have been sued generally on an account (certain actions in contract or quasi-contract) to force plaintiff to itemize the account on which the complaint is based.

This procedure dates back to early common law. When plaintiff sued on a common count, the pleadings gave no specifics as to the nature of the claim—i.e., whether contract, quasi-contract, etc. Therefore, courts allowed a "demand for bill of particulars" to enable defendant to discover what was being claimed and to prepare for trial. Although interrogatories and depositions can now be used for the same purpose, the bill of particulars remains an alternative procedure and it has certain advantages, as well.

Advantages:

The bill of particulars has some distinct advantages over Discovery Act procedures:

Inexpensive:

It is far easier and less costly to send out a simple demand for bill of particulars than it is to draft interrogatories or to prepare for and take depositions.

Conclusive:

Answers to interrogatories or deposition questions can be used as evidence against the answering party at trial; but they are not conclusive (contradictory evidence is also admissible). On the other hand, a bill of particulars is conclusive as to the items and amounts claimed; i.e., no other evidence is admissible at trial, unless the court grants leave to amend the bill of particulars .

Does not count against "Rule of 35":

Since it is not an interrogatory, the demand does not count against the numerical limits on specially prepared interrogatories under the Discovery Act. Thus it is particularly useful in limited civil litigation where parties are strictly limited to 35 discovery requests pursuant to Code of Civil Procedure § 94.

Disadvantages:

The big disadvantage is that a bill of particulars is only available in actions on "an account". Therefore, it is not an alternative to depositions and interrogatories in most cases.

Many attorneys simply fail to recognize that, in the appropriate action, a demand for a bill of particulars can be very useful in forcing plaintiff to provide all of the documentation supporting their claim This is particularly true when plaintiff is an assignee of a finance or credit card company and thus may not have all of the documentation. I have personally seen at least two instances where creditors dismissed cases when they could not respond to the bill of particulars. And with the rise of securitization of credit card debts and consolidation of credit card issuers this means that it is now more likely than ever that plaintiff may have filed suit while having little, if any, documentation to support their claim.

And as previously mentioned the response of plaintiff to the bill of particulars is conclusive as to the items and amounts claimed; i.e., no other evidence is admissible at trial, unless the court grants leave to amend the bill of particulars.

Attorneys or parties in the State of California who wish to download a sample demand for a bill of particulars can click below.


http://www.scribd.com/doc/25560416/Sample-Demand-for-Bill-of-Particulars-for-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.

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.

Visit his website at http://www.legaldocspro.net
 

Amending a Judgment in California

http://www.legaldocspro.com/blog/code-of-civil-procedure-section-582-5-motion-to-amend-a-judgment-in-california/