Over 300 sample legal documents for sale

Over 300 sample legal documents for sale from LegalDocsPro

Sample legal documents for California and Federal litigation available for sale. Over 300 sample documents are available. All documents are in Microsoft Word format and include answers, complaints, demurrers, motions to dismiss, motions to quash, motions to strike, motions to compel, interrogatories, requests for admission and more! The author of these sample documents is Stan Burman, an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995.

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 limited civil litigation cases

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Over 300 sample legal documents for sale

 

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

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

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

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

DISCLAIMER:

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sample request for statement of decision in California   

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

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

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

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

DISCLAIMER:

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

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

 

California notice of unavailability of counsel

http://www.legaldocspro.com/blog/california-notice-of-unavailability-of-counsel/

Code of Civil Procedure section 1987 notice to appear and produce documents in California

http://www.legaldocspro.com/blog/notice-to-appear-and-produce-documents-in-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/

Continuance of California trial date

http://www.legaldocspro.com/blog/continuing-a-trial-date-in-california/

Extension of time to plead in California

How to obtain an extension of time to plead in California is the topic of this blog post. An extension of time to plead in California may be granted to respond to a complaint, cross-complaint as well as certain other pleadings. Code of Civil Procedure section 1054(a) authorizes a judge upon a showing of good cause to grant an extension of tine not exceeding 30 days to respond to a complaint, cross-complaint or other pleading.

The request for an extension of time may be made by ex-parte application if necessary.

Code of Civil Procedure § 1054(a) states that, “When an act to be done, as provided in this code, relates to the pleadings in the action, or the preparation of bills of exceptions, or of amendments thereto, or to the service of notices other than of appeal and of intention to move for a new trial, the time allowed therefor, unless otherwise expressly provided, may be extended, upon good cause shown, by the judge of the court in which the action is pending, or by the judge who presided at the trial of the action; but the extension so allowed shall not exceed 30 days, without the consent of the adverse party.”

The decision as to whether or not an extension of time is granted is left to the discretion of the

judge hearing the motion.  Good cause is generally shown by a sufficient showing that the extension is needed to obtain the filing fees for the response or to obtain the funds to retain an attorney, an attorney has been contacted but they need more time to review the case or a family emergency requires the defendant to travel out of town.  Any declarations submitted in support of the request should contain sufficient facts and evidence that support a strong showing that circumstances beyond the control of the defendant or requesting party have necessitated the request for an extension of time to respond.

Any request for an extension of time to respond should clearly state whether or not any previous extensions of time to respond by court order or stipulation have been granted.

Attorneys or parties wishing to request an extension of time to respond should first contact the plaintiff or opposing party or their attorney and request that they stipulate to an extension of time to respond. If the request is denied that fact should be mentioned in the supporting declaration.

Attorneys or parties in California who would like to view a portion of an 11 page sample ex-parte application for extension of time to respond to a complaint including brief instructions, a memorandum of points and authorities with citations to statutory authority, sample declaration and declaration regarding ex-parte notice and proposed order sold by the author can use the link shown below.

Sample ex-parte application for extension of time to plead 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.

File a peremptory challenge in California

http://www.legaldocspro.com/blog/peremptory-challenges-in-california/

Procedure for confession of judgment in California

http://www.legaldocspro.com/blog/obtaining-a-judgment-by-confession-in-california/

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.

Experienced virtual paralegal for hire

Virtual paralegal who has worked in California and Federal litigation since 1995 available for short-term projects involving off-site work. Extensive experience in reviewing pleadings and drafting appropriate responses based on legal research. Capable of working with little or no supervision. Excellent references available. Payments are accepted through PayPal. For a limited time if you qualify and pay for the services using PayPal you will have NO interest and NO payments for 6 months!

Numerous areas of expertise include:

Arbitration and mediation briefs

Bankruptcy court adversary complaints and answers to complaints

Complaints and answers to complaints

Discovery requests and responses for form and special Interrogatories, requests for admission and requests for production of documents

Demurrers, motions for judgment on the pleadings, motions to strike

Eviction defense and eviction after foreclosure defense

Law and motion such as motion to quash service, motion for change of venue

Legal research

Probate including Heggstad Petitions

Creator of over 255 sample legal documents for use in California and Federal litigation.  Created over 200 blog posts for a blog that now has over 390,000 visits.  For more information view the video shown above or send an e-mail to services@legaldocspro.com 

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Definition of general appearance in California

The definition of a general appearance in California is the topic of this blog post.   A general appearance is fundamentally different from a special appearance in that once a defendant or cross-defendant makes a general appearance in an action they have submitted to the jurisdiction of the court.  A general appearance is any appearance in which the defendant participates in the action in a manner which recognizes the jurisdiction of the court.

Code of Civil Procedure section 1014 states in pertinent part that, “A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant.”

If a defendant raises an issue for resolution or seeks relief available only if the court has jurisdiction over the defendant, then the appearance is a general one. See Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 250.

And if a party brings a motion to vacate a judgment against it for lack of personal jurisdiction under Code of Civil Procedure section 473, subdivision (d) that raises any other issues, that will constitute a general appearance waiving the jurisdictional issue. Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2013) ¶ 3:165, pp. 3-56.2-3.56-3, citing Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1153.

Essentially any appearance in which a defendant does not object to the jurisdiction of the court will be considered a general appearance. 

Opposing a motion for attorney fees on other than jurisdictional grounds is also a general appearance. Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1688-1689.

Even naming a motion or pleading as a special appearance is not controlling.   See Szynalski v. Superior Court (2009) 172 Cal.App.4th 1, 11; Greener v. Workers' Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1037 ["Notwithstanding a `special appearance' designation on a motion to quash, if the movant seeks relief on any basis other than lack of personal jurisdiction, he or she makes a general appearance."

Attorneys or parties in California who would like to view over 245 sample legal documents for sale by the author of this blog post can visit the following link:  View 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 245 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 245 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. You can view sample legal document packages for sale by going to Sample legal document packages for sale“

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.

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.

Statutory tolling of the statute of limitations in California under Code of Civil Procedure section 352

Statutory tolling of the statute of limitations in California under California Code of Civil Procedure section 352 is the topic of this blog post which is the second in a series that will discuss statutory tolling of the statute of limitations in California. 

Some of the situations in which section 352 does not apply are also discussed.  The laws in the State of California impose time limitations or deadlines to take legal action which are known as the “statute of limitations” (SOL).  If someone fails to fully settle their claim or file a lawsuit within a certain time period, they will forever lose their right to any recovery or other legal remedy against the other person, business or entity if the SOL defense is asserted and proven as a defense to their lawsuit.

The statute of limitations laws in California are fixed and very strict in their application unless a particular exception applies.  Knowledge of the exceptions can mean all the difference in the world in certain situations.

Some of the more common statutory exceptions are found in sections 351 through 356 of the Code of Civil Procedure.  This blog post will discuss only section 352.

Code of Civil Procedure § 352 states that “(a) If a person entitled to bring an action, mentioned in Chapter 3 (commencing with Section 335) is, at the time the cause of action accrued either under the age of majority or insane, the time of the disability is not part of the time limited for the commencement of the action. (b) This section does not apply to an action against a public entity or public employee upon a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) or Chapter 2 (commencing with Section 910) of Part 3, or Chapter 3 (commencing with Section 950) of Part 4, of Division 3.6 of Title 1 of the Government Code. This subdivision shall not apply to any claim presented to a public entity prior to January 1, 1971.”

The first statutory exception in section 352 is that of a plaintiff or claimant who is under the age of 18, meaning under the age of majority. Family Code section 6500 specifies the age of majority, and section 7050(e)(4) may also be applicable depending on the particular case.  Under section 352 the statute of limitations does not start running until the plaintiff or claimant turns eighteen years old, or is emancipated by court order.

However this exception does not apply to a minor child injured before birth or in the course of birth, in those cases the SOL is six years after the date of birth pursuant to Code of Civil Procedure § 340.4.

The minority exception and the unborn exceptions do not apply to:

1.         Medical malpractice cases in general which are instead regulated by Code of Civil Procedure § 340.5; see also Photias v. Doerfler (1996) 45 Cal. App. 4th 1014, 1018-1020;

2.         Uninsured motorist cases which are governed by Insurance Code §11580.1(i)(1); see also Allstate Ins. Co. v. Orlando (1968) 262 Cal.App.2d 858, 865;

3.         Sexual abuse cases which are now regulated by the tolling provisions specified in Code of Civil Procedure §340.1, and

4.         Government meaning public entity claims generally, but there can be exceptions which are not discussed in this blog post.

The second exception in section 352 is the mental disability or incompetence of a plaintiff.

If plaintiff was “insane” also known as mentally incompetent at the time of or because of the tortuous wrongdoing, the statute of limitations is suspended for as long as the mental incompetence continues, even if a guardian ad litem has been appointed. See Tzolov v. International Jet Leasing, Inc. (1991) 232 Cal.App.3d 117, 120.

In the case of Feeley v. Southern Pacific Transportation Co. (1991) 234 Cal.App.3d 949, 953 the plaintiff was in a coma for twelve days after being knocked unconscious while on the defendant's premises. His suit, filed one year and one day after the attack, was timely because the statute was tolled while he was unconscious.

These SOL exceptions generally do not apply to Government or public entity claims, but there are times when they may apply which are not discussed in this blog post.

Attorneys or parties in California who would like to view portions of over 200 sample legal documents for California and Federal litigation sold by the author can use the following link: View over 200 sample legal documents

 

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. Visit the author's Facebook page at Visit my 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 my FREE 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.

These 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.

Statutory tolling of the statute of limitations in California under Code of Civil Procedure section 351

Statutory tolling of the statute of limitations in California under California Code of Civil Procedure section 351 is the topic of this blog post which is the first in a series that will discuss statutory tolling of the statute of limitations in California.  

Some of the situations in which section 351 does not apply are also discussed.  The laws in  the State of California impose time limitations or deadlines to take legal action which are known as the “statute of limitations” (SOL).  If someone fails to fully settle their claim or file a lawsuit within a certain time period, they will forever lose their right to any recovery or other legal remedy against the other person, business or entity if the SOL defense is asserted and proven as a defense to their lawsuit.

The statute of limitations laws in California are fixed and very strict in their application unless a particular exception applies.  Knowledge of the exceptions can mean all the difference in the world in certain situations.

Some of the more common statutory exceptions are found in sections 351 through 356 of the Code of Civil Procedure.  This blog post discusses only section 351.

Code of Civil Procedure § 351 states that, “If, when the cause of action accrues against a person, he is out of the State, the action may be commenced within the term herein limited, after his return to the State, and if, after the cause of action accrues, he departs from the State, the time of his absence is not part of the time limited for the commencement of the action.”

This means that the absence of a defendant from the state of California between the starting date and the ending date of the SOL will generally lengthen the SOL by the amount of the length of time that a defendant was absent from the state of California.

However California and Federal Courts have ruled that this exception does not apply in some circumstances including:

1.         Defendants engaging in interstate commerce. See Abramson v Brownstein 897 F2d 389, 392 (9^th Cir. 1990);

2.         Corporations and limited partnerships.  See Epstein v. Frank (1981) 125 Cal. App. 3d 111, 119 n.4 and 120;

3.         Nonresident motorists. See Bigelow v. Smik (1970) 6 Cal. App. 3d 10, 15, and

4.         Resident motorists in some circumstances. See Vehicle Code Section 17460; see also Dovie v. Hibler (1967) 254 Cal.App 2d 673, 675.

Listed above are the most common circumstances in which section 351 does not apply.   

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The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. Visit the author's Facebook page at Visit my Facebook page

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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.

These 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.

Tolling of the statute of limitations in California on equitable grounds

Tolling of the statute of limitations in California on equitable grounds is the topic of this blog post. The statute of limitations may be equitably tolled which essentially suspends the time limitation for filing a particular action under certain circumstances.  Equitable tolling is a doctrine created by the courts that recognizes that there are some exceptions where a purely technical application of procedural rules would result in a manifest injustice.

For instance in one case the Plaintiff's lawyer was hit by a car and seriously injured. While he was incapacitated, the statute of limitations expired on one of his cases.  The statute of limitations was equitably tolled pursuant to Civil Code § 3531 which states: "The law never requires impossibilities." Lewis v. Superior Court (1985) 175 Cal. App. 3d 366, 380. And the same court also stated that a catastrophic fire or earthquake could also invoke the impossibility grounds, see Lewis supra, 175 Cal. App. 3d at page 378.

Other cases have involved interference. In one case decided by the California Supreme Court almost 70 years ago the defendant’s conduct contributed to the plaintiff’s delay in filing his lawsuit. Bollinger v National Fire Ins. Co. (1944) 25 Cal. 2d 399, 411.

The limitations period is also extended when a person has several legal remedies and, “reasonably and in good faith,” “timely” meaning within the statute of limitations pursues one of them but believing the second “similar” claim is unnecessary or can’t be filed until the first remedy is pursued; and the defendant is not prejudiced because the first claim alerts the defendant to begin investigating the facts which form the basis for the second factually similar claim.  Collier v. City of Pasadena (1983) 142 Cal. App. 3d 917, 924-926; see also Myers v. County of Orange (1970) 6 Cal. App. 3d 626, 634.

This blog post contains some very valuable information that just might revive a case where the statute of limitations may be seemingly blown.  Future blog posts will discuss other examples of tolling of the statute of limitations in California. 

Attorneys or parties in California who wish to view all of the sample legal documents for use in California and Federal Courts sold by the author can use the following link:  View over 200 sample legal documents for sale 

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents as the owner and creator of LegalDocsPro. 

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 the facebook page for LegalDocsPro by visiting the following link: Visit my Facebook page

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

These 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.

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