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 to consolidate cases in California under Code of Civil Procedure section 1048(a)

http://www.legaldocspro.com/blog/motion-for-consolidation-of-cases-in-california/

California law and motion documents for sale

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

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

DESCRIPTION:

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

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

Oppose demurrer to complaint in California

Oppose a demurrer to a complaint in California is the topic of this blog post.  This blog post will briefly discuss some common grounds for opposing a demurrer.  The same issues discussed in this blog post apply to opposing a demurrer to a cross-complaint as well.

http://www.legaldocspro.net/blog/opposition-to-demurrer-to-a-complaint-in-california/

California motion to strike complaint

A California motion to strike a complaint or portions of a complaint is the topic of this blog post.   

A motion to strike may request that an entire complaint or certain specified portions be stricken.

In the State of California a motion to strike may be filed to strike any irrelevant matter inserted in any pleading, and to strike any pleading or part thereof not drawn in conformity with the laws of this state. See Code of Civil Procedure § 436.

A California Court of Appeal has ruled that if a claim of right appears on the face of a complaint which is legally invalid that the complaint is subject to a motion to strike.

For instance if a complaint requests attorney fees, yet the complaint fails to allege a contractual or statutory basis which entitles the plaintiff to recover attorney fees then the request for attorneys fees is subject to a motion to strike. And if the complaint requests any other relief to which plaintiff is not entitled to, that portion of the complaint is also subject to a motion to strike.

As with a demurrer no extrinsic evidence can be considered in ruling on a motion to strike unless the extrinsic evidence is subject to judicial notice.

A defendant cannot base a motion to strike on affidavits, declarations, or matters outside the four corners of the pleading containing extrinsic evidence that allegations in the complaint are false or a sham; such challenges only lie on the face of the complaint.

Although older cases recognized that a complaint cannot generally allege entitlement to punitive damages this is no longer the case in California.

The issue of whether or not to file a motion to strike should only be made after legal research on whether plaintiff is requesting relief to which they are not entitled, or if the complaint contains irrelevant matter. If so, then a motion to strike should be filed.

Attorneys or parties in California who wish to view a portion of a sample motion to strike to a complaint containing a memorandum of points and authorities with citations to case law and statutory authority and proof of service by mail sold by the author can use the link shown below.

Sample motion to strike for California

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

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

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

You can view sample legal document packages for sale by 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.

Oppose motion to quash service of summons in California

Oppose a motion to quash service of summons in California is the topic of this blog post.   Parties who wish to oppose a motion to quash service should ensure that any opposition is served and filed at least nine (9) Court days before the hearing, and is served by personal service or express mail or another service providing for overnight delivery as this is required by Code of Civil Procedure section 1005.

Parties served with a motion to quash service in California should carefully review the motion and supporting documents to determine if the supporting declarations contain competent evidence to support the motion and that the motion meets the requirements of Code of Civil Procedure § 418.10(b) which requires that the notice of motion designate a hearing date not more than 30 days after filing of the notice. If the hearing date is more than 30 days after the filing of the notice then a good argument can be made that the motion violates the right of Plaintiff to a timely hearing, is dilatory and was filed in bad faith as a delaying tactic.

As previously mentioned the supporting declarations should be carefully scrutinized as many Defendants will file a motion to quash and include only vague and conclusory allegations in the supporting declarations.

Another important factor is whether the Defendant has ever contacted the Plaintiff and acknowledged receipt of the summons and complaint in any way, entered into settlement negotiations or made offers to settle the case, or requested an extension of time to answer the complaint. If any of these factors are present the motion to quash can be opposed on the grounds that Defendant received actual notice of the lawsuit.  California law is settled that the statutes relating to service of process are to be liberally construed in favor of proper service and the upholding of jurisdiction if actual notice has been received by the Defendant.

If a Registered Process Server served the summons and complaint that creates a presumption that service was proper under Evidence Code § 647 which states that, “The return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.”

If the opposing party has any credible evidence that the moving party has attempted to evade service that should be included in any opposition as well as supporting declarations.

Attorneys or parties in California who would like to view a portion of a 12 page sample opposition to a motion to quash service of summons which includes brief instructions,

a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service sold by the author can use the link shown below.

http://www.scribd.com/doc/231393703/Sample-Opposition-to-Motion-to-Quash-Service-in-California

 

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

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

Filing a motion to strike an answer in California

http://www.legaldocspro.net/blog/motion-to-strike-an-answer-in-california/

Renewing a motion in California under Code of Civil Procedure section 1008(b)

Renewing a motion in California under Code of Civil Procedure section 1008(b) is the topic of this blog post.   Renewed motions have a very distinct advantage over motions for reconsideration as they are not subject to the 10 day statutory time limitation imposed on motions for reconsideration.

The main disadvantage of a renewed motion is the fact that it can only by brought by the party who filed the original motion unlike a motion for reconsideration which can be brought by any party affected by an order. 

Renewed motions in California are authorized by and governed by Code of Civil Procedure § 1008(b) which states in pertinent part that “A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

Note that the party filing the renewed motion must make a showing of new or different facts, circumstances or law since the date of the original order that the moving party was not aware of and could not have discovered with reasonable diligence. Failure to comply with the statutory provisions may result in denial of the renewed motion.

Several decisions of the California Courts of Appeal have stated that a decision on a motion is not res judicata, and a trial court has jurisdiction to consider a renewal of a prior motion.

Attorneys or parties in California who would like to view a portion of a sample renewed motion for California sold by the author that contains brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, a sample declaration and proof of service by mail can use the link shown below.

Sample California renewal of motion

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.

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 LegalDocsPro website and his Facebook page at Facebook page

If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California legal newsletter by visiting the following link: Subscribe to FREE weekly newsletter

Copyright 2013 Stan Burman. All rights reserved.

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 reconsideration in California pursuant to Code of Civil Procedure section 1008(a)

Requesting reconsideration of an order in California pursuant to Code of Civil Procedure section 1008(a) is the topic of this blog post.  A party wishing to request reconsideration of an interim order must file a motion for reconsideration pursuant to Code of Civil Procedure section 1008(a) which is the statute that authorizes reconsideration of an order.

Motions for reconsideration in California can be useful however parties need to be aware of their limitations.  The first and most important limitation is the 10 day time limit. A statutory motion for reconsideration must be filed within 10 days after service on the party of written notice of entry of the order. The second limitation is the requirement that the party moving for reconsideration of an order must make a showing of new or different facts, circumstances or law since the date of the original order that the moving party was not aware of and could not have discovered with reasonable diligence.

Code of Civil Procedure § 1008(a) states that “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

Several decisions of the California Courts of Appeal have stated that a decision on a motion is not res judicata, and a trial court has jurisdiction to reconsider a prior ruling.

And several decisions of the California Courts of Appeal have held that a demurrer is an application for an order within the meaning of Code of Civil Procedure Section 1008(a) and will support an application to reconsider an order sustaining a demurrer without leave to amend.

A motion for reconsideration is only applicable to interim orders, not final orders.  Note that any party affected by an order may file a motion as reconsideration is not limited to the party who filed the original application for an order.

Attorneys and parties in California who would like to view a portion of a sample motion for reconsideration that contains a memorandum of points and authorities, sample declaration and  proof of service by mail that is sold by the author can use the link shown below.

Sample motion for reconsideration

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 235 sample legal documents. Visit his website at LegalDocsPro website

To subscribe to his FREE weekly legal newsletter visit: Subscribe to FREE weekly legal newsletter

Copyright 2013 Stan Burman. All rights reserved.

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.

 

Filing a demurrer to an answer in California

The filing of a demurrer to an answer in California is the topic of this blog post. 

http://www.legaldocspro.com/blog/general-demurrer-to-an-answer-in-california/ 

 

Filing a demurrer to common counts in California

http://www.legaldocspro.com/blog/demurrer-to-a-breach-of-contract-complaint-in-california/

Opposing a motion for summary judgment/adjudication in California

http://www.legaldocspro.com/blog/summary-judgment-motion-opposition-in-california/

Filing a demurrer to a complaint in California

http://www.legaldocspro.com/blog/demurrer-to-a-breach-of-contract-complaint-in-california/

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