Procedure for obtaining an expedited child support order in California

Procedure for obtaining an expedited child support order in California is the topic of this blog post. The California Family Code provides an extremely useful method to obtain an expedited child support order, in some cases without a hearing. This means that a child support order may be obtained faster than the traditional method of filing an order to show cause. This is particularly important now that the budget crisis in California has resulted in overcrowded Court calendars.

The relevant statutes for obtaining an expedited child support order are contained in Chapter 5 of the California Family Code, sections 3620 through 3634. The forms used are official Judicial Council forms FL-380 through FL-382. Click below to view the official forms. http://www.courts.ca.gov/forms.htm?filter=MO

These statutes allow a party to file and then serve a request for an expedited child support order. The procedure and relevant rules for using this method to obtain an expedited order for child support are as follows: In an action for expedited child support that has been filed and served, the Court may, without a hearing, make an order requiring a parent or parents to pay for the support of their minor child or children during the pendency of that action, pursuant to this chapter, the amount required by Section 4055 or, if the income of the obligated parent or parents is unknown to the applicant, then the minimum amount of support as provided in Section 11452 of the Welfare and Institutions Code. See Family Code § 3621.

Family Code § 3622 states that,

“The court shall make an expedited support order upon the filing of all of the following:

(a) An application for an expedited child support order, setting forth the minimum amount the obligated parent or parents are required to pay pursuant to Section 4055 of this code or the minimum basic standards of adequate care for Region 1 as specified in Sections 11452 and 11452.018 of the Welfare and Institutions Code.

(b) An income and expense declaration for both parents, completed by the applicant.

(c) A worksheet setting forth the basis of the amount of support requested.

(d) A proposed expedited child support order.”

The method described above is an extremely useful tool to obtain an expedited child support order, in some cases without a hearing, provided that the other party does not oppose it. And even if there is a hearing it must be held not more than 30 days from the filing of any response. This is significantly faster in most cases than the traditional methods of obtaining a child support order and that is very important due to the clogged court calendars in many courts.

For more information on the California divorce document collection containing over 20 sample documents and selling for only $74.99 use the link shown below.

http://www.scribd.com/collections/4015912/California-dissolution-divorce-document-collection

To view over 250 sample legal documents for California and Federal litigation sold by the author of this blog post use the link shown below.

http://www.scribd.com/LegalDocsPro/documents

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 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 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.

Affirmative defense of invalid title to an unlawful detainer (eviction) after foreclosure sale in California

http://www.legaldocspro.com/blog/eviction-after-foreclosure-defense-in-california/

File motion to dismiss an adversary complaint for fraud in United States Bankruptcy Court

File a motion to dismiss an adversary complaint for fraud in United States Bankruptcy Court is the topic of this blog post. A motion to dismiss is generally filed on the grounds that the adversary complaint fails to state a claim.

This type of motion is often called a 12(b)(6) motion as it is based on Federal Rule of Civil Procedure 12(b)(6) (FRCP), or Federal Rule of Bankruptcy Procedure 7012(b)(6) (FRBP). A party may also request in the alternative, that the party be required to provide a more definite statement under FRCP 12(e) or FRBP 7012(e).

FRCP and FRBP 12 (e) both state in pertinent part that, "A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired".

The motion for a more definite statement may be joined with the motion to dismiss pursuant to FRCP and FRBP 12(g).

Many adversary complaints filed in bankruptcy courts are made under 11 U.S.C. § 523(a)(2) on the grounds of fraudulent representations. Note that FRCP 9(b) states in pertinent part that, "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake".  The Ninth Circuit Court of Appeals has stated that this is a federally imposed requirement although the Court will examine state law to determine if the elements of fraud have been sufficiently alleged.

The reason for the particularity requirement is due to the fact that fraud is a serious charge against another party.

As the author generally works on cases from California, the great majority of the cases he works on are from one of the Districts in California, so any fraud claims would most likely be a California cause of action.

California law requires that four (4) elements be specifically pleaded in any cause of action for fraud

"A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Every element must be specifically pleaded." Service by Medallion, Inc. v. Clorox Co. 44 Cal.App.4th 1807, 1816 (1996).

And in California, pursuant to Code of Civil Procedure § 338(d) there is a three-year statute of limitations for an action for relief on the ground of fraud or mistake. The cause of action is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.

An action based on fraud may be brought more than three years after the fraud occurred if the plaintiff shows not only that he did not discover the facts but he could not with reasonable diligence have discovered them within that time.

While leave to amend is usually granted if a motion to dismiss is successful, the Ninth Circuit has ruled that leave to amend does not need to be granted where amending the complaint would be futile, and that any discretion to deny leave to amend is particularly broad where plaintiff has previously amended their complaint. 

A motion to dismiss and/or a motion for a more definite statement are very useful when used in the right situation as many adversary complaints for fraud are filed which fail to allege the fraud with particularity, or they are so vague and ambiguous that the defendant cannot reasonably prepare a proper response.

In the author’s experience filing a motion to dismiss can be particularly useful when it is obvious that plaintiff has a weak case. This will force plaintiff to seek leave to amend. Once plaintiff has previously amended their adversary complaint some judges will deny leave to amend where the moving party can show that amendment would be futile as plaintiff cannot state a cause of action for fraud.

Attorneys or parties who would like to view a portion of a sample 10 page motion to dismiss adversary complaint for fraud in United States Bankruptcy Court containing a memorandum of points and authorities with citations to case law and statutory authority and proof of service by mail sold by the author can use the link shown below.

Sample motion to dismiss adversary complaint for fraud

 

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.

Oppose a motion to strike in California

How to oppose a motion to strike in California is the topic of this blog post. This blog post will briefly discuss some common grounds for opposing a motion to strike.

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

Relief from waiver of a trial by jury pursuant to Code of Civil Procedure section 631(g) in California

Relief from waiver of a trial by jury pursuant to Code of Civil Procedure section 631(g) in California is the topic of this blog post.    

Attorneys or parties will sometimes inadvertently fail to file a timely request for a jury trial or otherwise inadvertently waive the right to trial by jury in some way.

The right to a trial by jury in cases in California is authorized by Article I, section 16 of the California Constitution which states in pertinent part that, “Trial by jury is an inviolate right and shall be secured to all.”

Code of Civil Procedure § 631(g) states that, “The court may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury.”

Several decisions of both the California Supreme Court and the Courts of Appeal have stated that the right to a trial by jury is a basic and fundamental part of the California legal system.

Even in situations where the right to a trial by jury has been waived in some manner the trial Court still has the discretion to permit a trial by jury.  The California Courts of Appeal have stated in several decisions that a trial Court should grant a motion for relief from a waiver of a jury trial except in cases where granting relief would cause serious hardship to the objecting party. Prejudice from a jury trial may not be considered, only prejudice resulting from the granting of the relief from waiver such as rescheduling the trial to allow for a jury trial, lack of funds, and the timeliness of the request.

The California Supreme Court has stated that when there is doubt concerning the propriety of granting relief from waiver, such doubt should be resolved in favor of the party seeking a trial by jury.  Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 956.

If no prejudice is shown by the objecting party or the Court from any inadvertent waiver it is an abuse of discretion to deny relief from waiver as stated in several California Court of Appeal decisions.

Attorneys or parties in California who would like to view a portion of a 12 page sample ex-parte application for relief from waiver of jury trial containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration declaration regarding ex-parte notice and proposed order sold by the author can use the link shown below.

Sample ex-parte application for relief from waiver of jury trial 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 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.

Oppose motion to vacate judgment under Rule 60(b)(3) in United States District Court

How to oppose a motion to vacate a judgment under Rule 60(b)(3) in United States District Court on the grounds of fraud, misrepresentation or other misconduct is the topic of this blog post.  The party opposing the motion should serve and file the opposition at least seven (7) calendar days before the hearing unless a Local Rule or order of the Court states otherwise pursuant to Federal Rule of Civil Procedure 6(c)(2).

Any party served with a motion to vacate under Rule 60(b)(3) (Rule 60) should first carefully review the motion and all supporting documents to determine if the moving party has met their burden and what grounds exist for an opposition. 

Common grounds for opposition to a motion to vacate under Rule 60(b)(3) are:

The motion is untimely in that it is not brought within a reasonable time as required by Rule 60 which states in pertinent part that, 

“ (c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

Several decisions of the Circuit Courts of Appeal including the Ninth Circuit Court of Appeals have stated that the moving party must meet their burden of showing that the opposing party engaged in fraud, misrepresentation or other misconduct that prevented the moving party from fully and fairly presenting his or her case or defense.

The Ninth Circuit Court of Appeals has also stated that a motion under Rule 60 cannot be used to vacate a judgment which is alleged to be factually incorrect.

Other Circuit Courts of Appeal have stated the moving party must show that its claims or defenses are meritorious in order to prevail on the motion.

Several decisions of the Circuit Courts of Appeal including the Ninth Circuit Court of Appeals

have stated that the moving party must establish fraud by clear and convincing evidence and a recent decision by a Circuit Court of Appeal stated that the moving party must establish that any alleged misconduct prevented a full and fair presentation of the case.

Attorneys or parties who would like to view a portion of a 12 page sample opposition to a motion to vacate judgment under Rule 60(b)(3) in United States District Court containing brief  instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can use the link shown below. 

http://www.scribd.com/doc/238611171/Sample-opposition-to-Rule-60-b-3-motion-to-vacate-judgment-doc

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.

 

Remove a civil action from State court to United States District Court

How to remove a civil action from a State court to United States District Court is the topic of this blog post.  The most common grounds for removal are that the complaint involves a federal question as specified in Title 28 U.S. Code section 1441(a) or diversity jurisdiction as specified in Title 28 U.S. Code section 1332.

Parties seeking to remove a civil action to United States District Court should carefully review the statute specifying the procedure for removal of civil actions to United States District Court which is found in Title 28 U.S. Code § 1446 which states in pertinent part that,

“(a) Generally.— A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

(b) Requirements; Generally.—

(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.”

The defendant must then comply with the provisions of Title 28 U.S.C. 1446(d) which states that, "Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded." (Emphasis added).

The basic procedure to be followed is that a defendant should first file the notice of removal with the district court, serve notice on all adverse parties, than file a copy of the notice with the clerk of the State court.  The power of the removal procedure is that once a defendant has properly complied with all provisions for removal the jurisdiction of the State court is immediately terminated unless and until the case is remanded by the district court.  The State court cannot proceed any further and any orders or judgments issued by a State court after removal and before remand are void ab initio.

Although the removal procedure is abused on occasion there is no question but that it is a powerful tool if used in situations where the complaint clearly involves a federal question or there is diversity of citizenship between the parties. 

Attorneys or parties who would like to view a portion of a sample 7 page notice of removal that includes brief instructions, citations to statutory authority, a notice to adverse party of removal to Federal Court as well as a certificate of service of notice to adverse party of removal to Federal Court sold by the author can use the link shown below.

Sample notice of removal to United States District Court

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.