This blog post gives a brief overview of litigation under California Business and Professions Code Section 17200, et. seq., also known as the Unfair Competition Law, or "UCL". The statutes are also referred to as the Unfair Business Practices Law and other names. The scope of the UCL in California is very broad.
The main purpose of the UCL is to protect the public from unscrupulous business practices. Its scope is very broad. In fact, until passage of Proposition 64 in November 2004, a violation of the UCL, as opposed to common law fraud, could be shown even if no one was actually deceived or relied upon the fraudulent practice or sustained any damage. A violation required only a showing that "members of the public are likely to be deceived." And the law also allowed individuals or groups that never suffered any loss or harm to sue on behalf of the "general public" without satisfying any of the traditional class action requirements.
In addition, the pleading requirements and standards of proof were very relaxed and allowed recovery, sometimes on a representative basis, upon merely a determination that the challenged conduct was "unfair" or "likely to deceive a reasonable consumer," without any proof whatsoever of actual injury or damages. The lack of any formal class action requirements also meant that UCL judgments bound only the named plaintiff and not the "general public" they were supposed to represent, raising the very real prospect of being sued again and suffering repeat liability for the same conduct for an unlucky defendant.
Several highly publicized cases in which several attorneys who have since been disbarred filed multiple lawsuits against multiple defendants for trivial violations of minor laws made the news. Clearly the UCL was being used by certain parties and attorneys to squeeze "nuisance money" out of defendants, many of whom were minority small business owners.
The resulting public uproar resulted in the passage of Proposition 64 in November 2004 which made important procedural changes to Section 17200 and Section 17500, which benefitted large and small businesses that do business in California.
As a result of the passage of Proposition 64, the UCL now requires that a plaintiff show he or she has suffered an actual injury and has lost money or property as a result of such unfair competition. The UCL also contains cross-references to California's class action statute, which means that all representative actions under Section 17200 or Section 17500 are now required to meet regular class action requirements.
The most common of the remedies under the UCL are injunctive relief, and restitution and/or disgorgement of business profits obtained in violation of the UCL. Section 17203 does authorize the court to fashion remedies to prevent, deter, and compensate for unfair business practices. In addition to injunctions, it authorizes orders that are necessary to prevent practices that constitute unfair competition and to make "orders or judgments…as may be necessary to restore" to persons in interest any money or property acquired by unfair competition.
Another huge advantage of the UCL is that plaintiffs can recover attorneys' fees by establishing the required elements under Code of Civil Procedure Section 1021.5, which is the private attorney general fee statute in California. Obviously, this creates a strong incentive for plaintiffs to diligently prosecute UCL claims.
As stated by a California Court of Appeal, the UCL itself does not prohibit any specific activities but it does prohibit any unlawful, unfair or fraudulent business acts or practices, as well as deceptive, untrue or misleading advertising.
"The UCL does not proscribe specific activities, but broadly prohibits any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising. The UCL governs anti-competitive business practices as well as injuries to consumers, and has as a major purpose the preservation of fair business competition. By proscribing "any unlawful business practice," section 17200 "borrows" violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable. Because section 17200 is written in the disjunctive, it establishes three varieties of unfair competition-acts or practices which are unlawful, or unfair, or fraudulent. In other words, a practice is prohibited as "unfair" or "deceptive" even if not "unlawful" and vice versa." Puentes v. Wells Fargo Home Mortg., Inc., (2008) 160 Cal. App. 4th 638, 643-644 (internal citations and quotations omitted).
In discussing the unfair aspect of the UCL, the California Supreme Court stated that, "Any finding of unfairness to competitors under section 17200 [must] be tethered to some legislatively declared policy or proof of some actual or threatened impact on competition. We thus adopt the following test: When a plaintiff who claims to have suffered injury from a direct competitor's "unfair" act or practice invokes section 17200, the word "unfair" in that section means conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition." See Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., (1999) 20 Cal. 4th 163, 186-187.
And in discussing the fraudulent aspect of the UCL, in Puentes, supra 160 Cal. App. 4th at 645 (internal citations and quotations omitted), a California Court of Appeal stated that, "The term "fraudulent" as used in section 17200 does not refer to the common law tort of fraud but only requires a showing members of the public are likely to be deceived. Unless the challenged conduct targets a particular disadvantaged or vulnerable group, it is judged by the effect it would have on a reasonable consumer. "
And a violation of any law, whether it be a federal, state or local law can support a cause of action under the UCL.
And in regards to the unlawful aspect of the UCL, a California Court of Appeal stated that, "By proscribing "any unlawful" business practice, Business and Professions Code section 17200 "borrows" violations of other laws and treats them as unlawful practices that the UCL makes independently actionable. An unlawful business practice under Business and Professions Code section 17200 is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law. Virtually any law, federal, state or local can serve as a predicate for an action under Business and Professions Code section 17200. " Hale v. Sharp Healthcare, (2010) 183 Cal. App. 4th 1373, 1382-1383 (internal citations and quotations omitted).
However, the facts supporting the statutory elements of the violation must be stated with reasonable particularity.
"A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation." Khoury v. Maly's of California, Inc., (1993) 14 Cal. App. 4th 612, 619 (internal citations and quotations omitted).
In addition to the many other advantages to traditional litigation, the UCL makes it economically feasible to sue when individual claims are too small to justify the expense of litigation and thereby encourages attorneys to undertake private enforcement actions
Attorneys or parties in California who would like to view a sample complaint
that includes a cause of action for violations of the unfair competition law
sold by the author can click below.
http://www.scribd.com/doc/117352108/Sample-Complaint-for-Unfair-Business-Practices-in-California
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.
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: http://www.legaldocspro.net/newsletter.htm
The author's website: http://www.legaldocspro.net
View numerous sample documents sold by the author: http://www.scribd.com/legaldocspro
Copyright 2012 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.
Sunday, November 18, 2012
Saturday, November 10, 2012
The rule of liberal construction of pleadings in California
The topic of this blog post is a brief discussion of the rule of liberal construction of pleadings in the State of California. The law in California is that all pleadings shall be liberally constructed.
Code of Civil Procedure § 452 states that: "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties."
The term pleading can mean many things including an answer, complaint, motion, petition or other document filed with the Court for the purpose of seeking relief.
The California Courts have interpreted section 452 broadly.
A California Court of Appeal has stated that "California is committed to the rule of liberal construction of pleadings, with a view to substantial justice between the parties." Simons v. Kern County (1965) 234 Cal.App.2d 362, 367. (Internal citations omitted).
And another California Court of Appeal has stated that the label or name given to petition or cause of action a is not determinative, rather it is the facts alleged and the remedy sought that determines the true nature of a pleading.
The true nature of a petition or cause of action is based on the facts alleged and remedy sought in that pleading and, as a result, the label given a petition, action or other pleading is not determinative. Escamilla v. Department of Corrections and Rehabilitation (2006) 141 Cal.App.4th 498, 511.
In discussing the policy of liberal construction as it relates to complaints, the California Supreme Court has stated that the fact that a plaintiff may have made a mistake as to the nature of their case, or even the legal theory under which they hope to prevail is not important, what is important is whether there it states any valid claim for relief.
It is not necessary that the cause of action be the one intended by plaintiff. The test is whether the complaint states any valid claim entitling plaintiff to relief. Thus, plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail. But if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.
The fact that California is committed to the rule of liberal construction of pleadings is very good news for a litigant who faces an objection to the alleged sufficiency of their pleading based on an incorrect name, or legal theory.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Any persons representing themselves should be aware that the author does NOT work directly with the public.
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:
http://www.legaldocspro.net/newsletter.htm
The author's website: http://www.legaldocspro.net
View numerous sample documents sold by the author: http://www.scribd.com/legaldocspro
Copyright 2012 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.
Code of Civil Procedure § 452 states that: "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties."
The term pleading can mean many things including an answer, complaint, motion, petition or other document filed with the Court for the purpose of seeking relief.
The California Courts have interpreted section 452 broadly.
A California Court of Appeal has stated that "California is committed to the rule of liberal construction of pleadings, with a view to substantial justice between the parties." Simons v. Kern County (1965) 234 Cal.App.2d 362, 367. (Internal citations omitted).
And another California Court of Appeal has stated that the label or name given to petition or cause of action a is not determinative, rather it is the facts alleged and the remedy sought that determines the true nature of a pleading.
The true nature of a petition or cause of action is based on the facts alleged and remedy sought in that pleading and, as a result, the label given a petition, action or other pleading is not determinative. Escamilla v. Department of Corrections and Rehabilitation (2006) 141 Cal.App.4th 498, 511.
In discussing the policy of liberal construction as it relates to complaints, the California Supreme Court has stated that the fact that a plaintiff may have made a mistake as to the nature of their case, or even the legal theory under which they hope to prevail is not important, what is important is whether there it states any valid claim for relief.
It is not necessary that the cause of action be the one intended by plaintiff. The test is whether the complaint states any valid claim entitling plaintiff to relief. Thus, plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail. But if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.
The fact that California is committed to the rule of liberal construction of pleadings is very good news for a litigant who faces an objection to the alleged sufficiency of their pleading based on an incorrect name, or legal theory.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Any persons representing themselves should be aware that the author does NOT work directly with the public.
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:
http://www.legaldocspro.net/newsletter.htm
The author's website: http://www.legaldocspro.net
View numerous sample documents sold by the author: http://www.scribd.com/legaldocspro
Copyright 2012 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.
Thursday, November 8, 2012
Opposing a motion for relief from the automatic stay in United States Bankruptcy Court
This blog post will discuss the opposing a motion for relief from the automatic stay in United States Bankruptcy Court. Note that the deadline for filing an opposition to a motion for relief from automatic stay varies with each individual Court but as a general rule the opposition should be served and filed at least fourteen (14) calendar days before the hearing, unless the notice of motion states otherwise, or the Court has otherwise ordered.
It must be stressed that the failure to file and serve a timely opposition to a motion for relief from the automatic stay may be construed by the Court as an admission that the motion has merit and should be granted. Thus a party who wishes to oppose the motion for relief from the automatic stay should do everything possible to ensure that a timely opposition is served and filed.
The automatic stay prevents creditors from taking certain actions once a petition for relief under the Bankruptcy Code has been filed. Those actions include but are not limited to, commencing or continuing any legal actions or proceedings against the debtor in another Court. It also includes attempting to collect on any judgment against the debtor that was entered in another Court before the Bankruptcy case was filed.
11 U.S.C . 362a states in relevant part: "Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of–(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title..."
The party requesting relief from the automatic stay bears the burden of establishing a prima facie case that "cause" exists for relief from the automatic stay. If the moving party fails to meet its initial burden relief should be denied.
"The burden of proof on a motion to modify the automatic stay is a shifting one. To obtain relief from the automatic stay, the party seeking relief must first establish a prima facie case that "cause" exists for relief under § 362(d)(1). Once a prima facie case has been established, the burden shifts to the debtor to show that relief from the stay is unwarranted. If the movant fails to meet its initial burden to demonstrate cause, relief from the automatic stay should be denied." In re Plumberex Specialty Products, Inc. 311 B.R. 551, 557 (Bkrtcy.C.D.Cal.,2004) (internal citations and quotations omitted).
The moving party must establish a factual and legal right to the relief that it is seeking.
"A prima facie case requires the movant to establish "a factual and legal right to the relief that it seeks." In re Plumberex Specialty Products, Inc. , supra at FN 11.
In some cases the moving party will have to show that the debtor’s actions constitute a clear abuse of the bankruptcy process, in other words bad faith on the part of the debtor.
"The existence of good faith depends on an amalgam of factors and not upon a specific fact. The test is whether the debtor is attempting to unreasonably deter and harass creditors or attempting to effect a speedy, efficient reorganization on a feasible basis. Good faith is lacking only when the debtor's actions constitute a clear abuse of the bankruptcy process." In re Plumberex Specialty Products, Inc. , supra at 559.
Any party that is served with a motion for relief from the automatic stay should carefully review the motion and supporting documents to determine if the moving party has met its initial burden. Many times a party will file a motion for relief with very little if any, supporting facts to support their motion hoping to gain some leverage for possible settlement negotiations.
Attorneys or parties in California who wish to purchase a sample opposition to a motion for relief from the automatic stay in United States Bankruptcy Court can click below.
http://www.scribd.com/doc/97317992/Sample-Opposition-to-Motion-for-Relief-From-Stay
The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Visit his website at http://www.legaldocspro.net
If you would like to subscribe to his weekly legal newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm
It must be stressed that the failure to file and serve a timely opposition to a motion for relief from the automatic stay may be construed by the Court as an admission that the motion has merit and should be granted. Thus a party who wishes to oppose the motion for relief from the automatic stay should do everything possible to ensure that a timely opposition is served and filed.
The automatic stay prevents creditors from taking certain actions once a petition for relief under the Bankruptcy Code has been filed. Those actions include but are not limited to, commencing or continuing any legal actions or proceedings against the debtor in another Court. It also includes attempting to collect on any judgment against the debtor that was entered in another Court before the Bankruptcy case was filed.
11 U.S.C . 362a states in relevant part: "Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of–(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title..."
The party requesting relief from the automatic stay bears the burden of establishing a prima facie case that "cause" exists for relief from the automatic stay. If the moving party fails to meet its initial burden relief should be denied.
"The burden of proof on a motion to modify the automatic stay is a shifting one. To obtain relief from the automatic stay, the party seeking relief must first establish a prima facie case that "cause" exists for relief under § 362(d)(1). Once a prima facie case has been established, the burden shifts to the debtor to show that relief from the stay is unwarranted. If the movant fails to meet its initial burden to demonstrate cause, relief from the automatic stay should be denied." In re Plumberex Specialty Products, Inc. 311 B.R. 551, 557 (Bkrtcy.C.D.Cal.,2004) (internal citations and quotations omitted).
The moving party must establish a factual and legal right to the relief that it is seeking.
"A prima facie case requires the movant to establish "a factual and legal right to the relief that it seeks." In re Plumberex Specialty Products, Inc. , supra at FN 11.
In some cases the moving party will have to show that the debtor’s actions constitute a clear abuse of the bankruptcy process, in other words bad faith on the part of the debtor.
"The existence of good faith depends on an amalgam of factors and not upon a specific fact. The test is whether the debtor is attempting to unreasonably deter and harass creditors or attempting to effect a speedy, efficient reorganization on a feasible basis. Good faith is lacking only when the debtor's actions constitute a clear abuse of the bankruptcy process." In re Plumberex Specialty Products, Inc. , supra at 559.
Any party that is served with a motion for relief from the automatic stay should carefully review the motion and supporting documents to determine if the moving party has met its initial burden. Many times a party will file a motion for relief with very little if any, supporting facts to support their motion hoping to gain some leverage for possible settlement negotiations.
Attorneys or parties in California who wish to purchase a sample opposition to a motion for relief from the automatic stay in United States Bankruptcy Court can click below.
http://www.scribd.com/doc/97317992/Sample-Opposition-to-Motion-for-Relief-From-Stay
The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Visit his website at http://www.legaldocspro.net
If you would like to subscribe to his weekly legal newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm
Wednesday, November 7, 2012
Collecting a California judgment against a judgment debtor with several aliases
The topic of this blog post is a very useful method that can be used by a judgment creditor in California to collect a judgment against a judgment debtor who uses several aliases without having to file a motion to amend the judgment, and without notice or a hearing. However, it can only be used in certain specified situations which are detailed in the California Code of Civil Procedure. The method is known as an affidavit of identity.
Proper use of an affidavit of identity is critical to effective judgment recovery in California . I have collected on several California judgments with the use of an affidavit of identity, and have never had an application for an affidavit of identity rejected.
Some of the larger counties in California including Los Angeles and Orange counties, have a specific local form which is used as the application for an affidavit of identity, and in some cases, the order approving the application as well.
If the judgment creditor can prove to the Court that a judgment debtor(s) are known by additional names which were not listed on the judgment, they can request that the Court issue an abstract of judgment and/or a writ of execution listing the additional names, without notice or a hearing.
This avoids the time and expense of filing a motion to amend the judgment which would require giving advance notice to the judgment debtor, thus alerting them that the judgment creditor is actively seeking to collect on the unpaid judgment.
Note that this procedure CANNOT be used in other ways such as attempting to collect against someone who was not listed on the judgment, nor can it be used to collect against any corporations, partnerships, or any legal entities not separately named in the judgment in which the judgment debtor is a partner, shareholder, or member, other than the judgment debtor.
The relevant code section that authorizes the issuance of an abstract of judgment listing additional names is Code of Civil Procedure § 674 (c)(1) which states that,
"The abstract of judgment shall be certified in the name of the judgment debtor as listed on the judgment and may also include the additional name or names by which the judgment debtor is known as set forth in the affidavit of identity, as defined in Section 680.135, filed by the judgment creditor with the application for issuance of the abstract of judgment. Prior to the clerk of the court certifying an abstract of judgment containing any additional name or names by which the judgment debtor is known that are not listed on the judgment, the court shall approve the affidavit of identity. If the court determines, without a hearing or a notice, that the affidavit of identity states sufficient facts upon which the judgment creditor has identified the additional names of the judgment debtor, the court shall authorize the certification of the abstract of judgment with the additional name or names. (2) The remedies provided in Section 697.410 apply to a recorded abstract of a money judgment based upon an affidavit of identity that appears to create a judgment lien on real property of a person who is not the judgment debtor. "
Affidavit of identity is defined in Code of Civil Procedure § 680.135 which states that,
"Affidavit of Identity" means an affidavit or declaration executed by a judgment creditor, under penalty of perjury, that is filed with the clerk of the court in which the judgment is entered at the time the judgment creditor files for a writ of execution or an abstract of judgment. The affidavit of identity shall set forth the case name and number, the name of the judgment debtor stated in the judgment, the additional name or names by which the judgment debtor is known, and the facts upon which the judgment creditor has relied in obtaining the judgment debtor's additional name or names. The affidavit of identity shall not include the name or names of persons, including any corporations, partnerships, or any legal entities not separately named in the judgment in which the judgment debtor is a partner, shareholder, or member, other than the judgment debtor. " (Emphasis added.)
The relevant code section that authorizes the issuance of an abstract of judgment listing additional names is Code of Civil Procedure § 699.510 (c)(1) which states that,
"The writ of execution shall be issued in the name of the judgment debtor as listed on the judgment and shall include the additional name or names, and the type of legal entity, by which the judgment debtor is known, as set forth in the affidavit of identity, as defined in Section 680.135, filed by the judgment creditor with the application for issuance of the writ of execution. Prior to the clerk of the court issuing a writ of execution containing any additional name or names by which the judgment debtor is known that are not listed on the judgment, the court shall approve the affidavit of identity. If the court determines, without a hearing or a notice, that the affidavit of identity states sufficient facts upon which the judgment creditor has identified the additional names of the judgment debtor, the court shall authorize the issuance of the writ of execution with the additional name or names."
Proper use of the affidavit of identity can make the difference between collecting or not collecting on an unpaid judgment. Judgment recovery professionals in the State of California will certainly agree with the previous statement.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995 and has collected unpaid California judgments since 1992.
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: http://www.legaldocspro.net/newsletter.htm
The author's website: http://www.legaldocspro.net
View numerous sample documents sold by the author: http://www.scribd.com/legaldocspro
Copyright 2012 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.
Proper use of an affidavit of identity is critical to effective judgment recovery in California . I have collected on several California judgments with the use of an affidavit of identity, and have never had an application for an affidavit of identity rejected.
Some of the larger counties in California including Los Angeles and Orange counties, have a specific local form which is used as the application for an affidavit of identity, and in some cases, the order approving the application as well.
If the judgment creditor can prove to the Court that a judgment debtor(s) are known by additional names which were not listed on the judgment, they can request that the Court issue an abstract of judgment and/or a writ of execution listing the additional names, without notice or a hearing.
This avoids the time and expense of filing a motion to amend the judgment which would require giving advance notice to the judgment debtor, thus alerting them that the judgment creditor is actively seeking to collect on the unpaid judgment.
Note that this procedure CANNOT be used in other ways such as attempting to collect against someone who was not listed on the judgment, nor can it be used to collect against any corporations, partnerships, or any legal entities not separately named in the judgment in which the judgment debtor is a partner, shareholder, or member, other than the judgment debtor.
The relevant code section that authorizes the issuance of an abstract of judgment listing additional names is Code of Civil Procedure § 674 (c)(1) which states that,
"The abstract of judgment shall be certified in the name of the judgment debtor as listed on the judgment and may also include the additional name or names by which the judgment debtor is known as set forth in the affidavit of identity, as defined in Section 680.135, filed by the judgment creditor with the application for issuance of the abstract of judgment. Prior to the clerk of the court certifying an abstract of judgment containing any additional name or names by which the judgment debtor is known that are not listed on the judgment, the court shall approve the affidavit of identity. If the court determines, without a hearing or a notice, that the affidavit of identity states sufficient facts upon which the judgment creditor has identified the additional names of the judgment debtor, the court shall authorize the certification of the abstract of judgment with the additional name or names. (2) The remedies provided in Section 697.410 apply to a recorded abstract of a money judgment based upon an affidavit of identity that appears to create a judgment lien on real property of a person who is not the judgment debtor. "
Affidavit of identity is defined in Code of Civil Procedure § 680.135 which states that,
"Affidavit of Identity" means an affidavit or declaration executed by a judgment creditor, under penalty of perjury, that is filed with the clerk of the court in which the judgment is entered at the time the judgment creditor files for a writ of execution or an abstract of judgment. The affidavit of identity shall set forth the case name and number, the name of the judgment debtor stated in the judgment, the additional name or names by which the judgment debtor is known, and the facts upon which the judgment creditor has relied in obtaining the judgment debtor's additional name or names. The affidavit of identity shall not include the name or names of persons, including any corporations, partnerships, or any legal entities not separately named in the judgment in which the judgment debtor is a partner, shareholder, or member, other than the judgment debtor. " (Emphasis added.)
The relevant code section that authorizes the issuance of an abstract of judgment listing additional names is Code of Civil Procedure § 699.510 (c)(1) which states that,
"The writ of execution shall be issued in the name of the judgment debtor as listed on the judgment and shall include the additional name or names, and the type of legal entity, by which the judgment debtor is known, as set forth in the affidavit of identity, as defined in Section 680.135, filed by the judgment creditor with the application for issuance of the writ of execution. Prior to the clerk of the court issuing a writ of execution containing any additional name or names by which the judgment debtor is known that are not listed on the judgment, the court shall approve the affidavit of identity. If the court determines, without a hearing or a notice, that the affidavit of identity states sufficient facts upon which the judgment creditor has identified the additional names of the judgment debtor, the court shall authorize the issuance of the writ of execution with the additional name or names."
Proper use of the affidavit of identity can make the difference between collecting or not collecting on an unpaid judgment. Judgment recovery professionals in the State of California will certainly agree with the previous statement.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995 and has collected unpaid California judgments since 1992.
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: http://www.legaldocspro.net/newsletter.htm
The author's website: http://www.legaldocspro.net
View numerous sample documents sold by the author: http://www.scribd.com/legaldocspro
Copyright 2012 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.
Sunday, November 4, 2012
Discovery procedures which can be used in probate cases in California
The topic of this blog post is discovery procedures which can be used in California probates. Note that the term probates encompasses any proceeding commenced under the Probate Code in California and includes not only the probate of estates and trust proceedings, but also conservatorship and guardianships as well.
Parties in California probates may utilize the same discovery procedures as are used in California civil litigation unless the Probate Code states otherwise. And all issues of fact in a probate proceeding are tried using the same rules of practice that are used in civil litigation.
Probate Code § 1000 states that, "Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings and proceedings under Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice in, proceedings under this code. All issues of fact joined in probate proceedings shall be tried in conformity with the rules of practice in civil actions".
This means that parties to probates may use form and special interrogatories, requests for admission, truth of facts and genuineness of documents, and requests for production of documents in addition to depositions and the other discovery procedures commonly used in civil litigation in the State of California.
The importance of discovery in probates as with other litigation cannot be emphasized strongly enough. Correct use of discovery procedures can mean the difference between winning and losing for many probates. Failure to properly use the discovery procedures will result in many cases which could have been won at trial, or a reasonable settlement reached before trial, being lost instead.
The following discovery procedures can be very cost effective when used properly in probates
.
Form and special interrogatories are very useful as a party can request the other party to state all facts, identify all persons having knowledge of the facts, and all documents in support of the facts which, support the other party’s requests made in that party’s petition, objection or other response.
Requests for admission can also be used to request the other party admit or deny certain pertinent facts, and/or admit that certain attached documents are genuine.
And requests for production of documents are also very useful in obtaining copies of correspondence, bank and financial records, and other documents that are pertinent to that particular probate case.
Other discovery procedures can also be used but the ones mentioned above are particularly cost effective.
The right use of discovery procedures in California probate cases is a vital tool in (1) evaluating the strengths and weaknesses of each party’s case; (2) preparing for trial, and (3) facilitating settlement negotiations.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Visit his website at http://www.legaldocspro.net
To view numerous sample documents for California litigation sold by the author click here: http://www.scribd.com/legaldocspro
If you would like to subscribe to his newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm
Parties in California probates may utilize the same discovery procedures as are used in California civil litigation unless the Probate Code states otherwise. And all issues of fact in a probate proceeding are tried using the same rules of practice that are used in civil litigation.
Probate Code § 1000 states that, "Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings and proceedings under Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice in, proceedings under this code. All issues of fact joined in probate proceedings shall be tried in conformity with the rules of practice in civil actions".
This means that parties to probates may use form and special interrogatories, requests for admission, truth of facts and genuineness of documents, and requests for production of documents in addition to depositions and the other discovery procedures commonly used in civil litigation in the State of California.
The importance of discovery in probates as with other litigation cannot be emphasized strongly enough. Correct use of discovery procedures can mean the difference between winning and losing for many probates. Failure to properly use the discovery procedures will result in many cases which could have been won at trial, or a reasonable settlement reached before trial, being lost instead.
The following discovery procedures can be very cost effective when used properly in probates
.
Form and special interrogatories are very useful as a party can request the other party to state all facts, identify all persons having knowledge of the facts, and all documents in support of the facts which, support the other party’s requests made in that party’s petition, objection or other response.
Requests for admission can also be used to request the other party admit or deny certain pertinent facts, and/or admit that certain attached documents are genuine.
And requests for production of documents are also very useful in obtaining copies of correspondence, bank and financial records, and other documents that are pertinent to that particular probate case.
Other discovery procedures can also be used but the ones mentioned above are particularly cost effective.
The right use of discovery procedures in California probate cases is a vital tool in (1) evaluating the strengths and weaknesses of each party’s case; (2) preparing for trial, and (3) facilitating settlement negotiations.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Visit his website at http://www.legaldocspro.net
To view numerous sample documents for California litigation sold by the author click here: http://www.scribd.com/legaldocspro
If you would like to subscribe to his newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm
Sunday, October 28, 2012
Thursday, October 25, 2012
Opposing a forum non conveniens action in the State of California
Opposing a forum non conveniens action also known as a
motion to dismiss on the grounds of inconvenient forum, in the State of California is the topic of this blog post.
The motion is made on the grounds that the forum state, namely California, is an inconvenient forum in which to have the case heard. The good news for a party opposing a motion to dismiss on the grounds of inconvenient forum in the State of California is that the moving Defendant(s) have the burden of proof. The entire motion should be reviewed along with all supporting attachments.
The author recently drafted an opposition to a motion in which the moving defendants provided NO sworn declarations with the Motion.
In a forum non conveniens action, the defendant has the burden of proof. Century Indem. Co. v. Bank of Am., (1997) 58 Cal. App. 4th 408, 411. (Citing text.)
And the United States Supreme Court has stated that unless the balance weighs strongly in favor of the defendants, the plaintiff's choice of forum should rarely be disturbed. See Piper Aircraft v. Reyno, (1981) 454 U.S. 235, 255.
In California the doctrine is typically applied where none of the parties is a California resident, and where the cause of action arose outside of the forum state. The doctrine is typically applied to litigation where all of the parties are out-of-state residents and where the cause of action arose outside the forum state. Appalachian Ins. Co. v. Superior Court, (1984) 162 Cal. App. 3d 427, 434. (Internal citations and quotations omitted.) The moving party must also establish that a suitable alternative forum exists.
Courts in California have utilized a two prong approach in motions to dismiss on the basis of forum non conveniens: 1) Defendants must establish that a suitable alternative forum exists and 2) The Court must balance the private interests of the parties and the public interest in maintaining an action in California. Stangvik v. Shiley, Inc., (1991) 54 Cal.3d 744, 751.
Code of Civil Procedure section 410.40 states that “Any person may maintain an action or proceeding in a court of this state against a foreign corporation or nonresident person where the action or proceeding arises out of or relates to any contract, agreement, or undertaking for which a choice of California law has been made in whole or in part by the parties thereto and which (a) is a contract, agreement, or undertaking, contingent or otherwise, relating to a transaction involving in the aggregate not less than one million dollars ($1,000,000), and (b) contains a provision or provisions under which the foreign corporation or nonresident agrees to submit to the jurisdiction of the courts of this state. This section applies to contracts, agreements, and undertakings entered into before, on, or after its effective date; it shall be fully retroactive. Contracts, agreements, and undertakings selecting California law entered into before the effective date of this section shall be valid, enforceable, and effective as if this section had been in effect on the date they were entered into; and actions and proceedings commencing in a court of this state before the effective date of this section may be maintained as if this section were in effect on the date they were commenced.“
This means that if an agreement signed by both parties, even if both parties are nonresident parties, includes what is known as a mandatory forum selection clause, the Court will most likely deny the motion unless the moving party can show that applying the clause would be unfair or unreasonable. The fact that the moving party might be inconvenienced or suffer additional expenses is not sufficient.
“Although not even a mandatory forum selection clause can completely eliminate a court's discretion to make appropriate rulings regarding choice of forum, the modern trend is to enforce mandatory forum selection clauses unless they are unfair or unreasonable. If there is no mandatory forum selection clause, a forum non conveniens motion `requires the weighing of a gamut of factors of public and private convenience. However if there is a mandatory forum selection clause, the test is simply whether application of the clause is unfair or unreasonable, and the clause is usually given effect. Claims that the previously chosen forum is unfair or inconvenient are generally rejected. A court will usually honor a mandatory forum selection clause without extensive analysis of factors relating to convenience. Mere inconvenience or additional expense is not the test of unreasonableness of a mandatory forum selection clause. “ Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1294. (Internal citations and quotations omitted.)
A party wishing to oppose a motion to dismiss on the grounds of inconvenient forum in California should definitely take the factors discussed in this blog post into account.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.
Visit his website at http://www.legaldocspro.com
If you would like to subscribe to his newsletter click on the following link:
Subscribe to FREE weekly newsletter
The motion is made on the grounds that the forum state, namely California, is an inconvenient forum in which to have the case heard. The good news for a party opposing a motion to dismiss on the grounds of inconvenient forum in the State of California is that the moving Defendant(s) have the burden of proof. The entire motion should be reviewed along with all supporting attachments.
The author recently drafted an opposition to a motion in which the moving defendants provided NO sworn declarations with the Motion.
In a forum non conveniens action, the defendant has the burden of proof. Century Indem. Co. v. Bank of Am., (1997) 58 Cal. App. 4th 408, 411. (Citing text.)
And the United States Supreme Court has stated that unless the balance weighs strongly in favor of the defendants, the plaintiff's choice of forum should rarely be disturbed. See Piper Aircraft v. Reyno, (1981) 454 U.S. 235, 255.
In California the doctrine is typically applied where none of the parties is a California resident, and where the cause of action arose outside of the forum state. The doctrine is typically applied to litigation where all of the parties are out-of-state residents and where the cause of action arose outside the forum state. Appalachian Ins. Co. v. Superior Court, (1984) 162 Cal. App. 3d 427, 434. (Internal citations and quotations omitted.) The moving party must also establish that a suitable alternative forum exists.
Courts in California have utilized a two prong approach in motions to dismiss on the basis of forum non conveniens: 1) Defendants must establish that a suitable alternative forum exists and 2) The Court must balance the private interests of the parties and the public interest in maintaining an action in California. Stangvik v. Shiley, Inc., (1991) 54 Cal.3d 744, 751.
Code of Civil Procedure section 410.40 states that “Any person may maintain an action or proceeding in a court of this state against a foreign corporation or nonresident person where the action or proceeding arises out of or relates to any contract, agreement, or undertaking for which a choice of California law has been made in whole or in part by the parties thereto and which (a) is a contract, agreement, or undertaking, contingent or otherwise, relating to a transaction involving in the aggregate not less than one million dollars ($1,000,000), and (b) contains a provision or provisions under which the foreign corporation or nonresident agrees to submit to the jurisdiction of the courts of this state. This section applies to contracts, agreements, and undertakings entered into before, on, or after its effective date; it shall be fully retroactive. Contracts, agreements, and undertakings selecting California law entered into before the effective date of this section shall be valid, enforceable, and effective as if this section had been in effect on the date they were entered into; and actions and proceedings commencing in a court of this state before the effective date of this section may be maintained as if this section were in effect on the date they were commenced.“
This means that if an agreement signed by both parties, even if both parties are nonresident parties, includes what is known as a mandatory forum selection clause, the Court will most likely deny the motion unless the moving party can show that applying the clause would be unfair or unreasonable. The fact that the moving party might be inconvenienced or suffer additional expenses is not sufficient.
“Although not even a mandatory forum selection clause can completely eliminate a court's discretion to make appropriate rulings regarding choice of forum, the modern trend is to enforce mandatory forum selection clauses unless they are unfair or unreasonable. If there is no mandatory forum selection clause, a forum non conveniens motion `requires the weighing of a gamut of factors of public and private convenience. However if there is a mandatory forum selection clause, the test is simply whether application of the clause is unfair or unreasonable, and the clause is usually given effect. Claims that the previously chosen forum is unfair or inconvenient are generally rejected. A court will usually honor a mandatory forum selection clause without extensive analysis of factors relating to convenience. Mere inconvenience or additional expense is not the test of unreasonableness of a mandatory forum selection clause. “ Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1294. (Internal citations and quotations omitted.)
A party wishing to oppose a motion to dismiss on the grounds of inconvenient forum in California should definitely take the factors discussed in this blog post into account.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.
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
If you would like to subscribe to his newsletter click on the following link:
Subscribe to FREE weekly newsletter
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