Requesting leave to amend a pleading in California

Requesting leave to amend a pleading in California is the topic of this blog post.   A motion for leave to amend in California can be made under both Code of Civil Procedure sections 473(a) and 576 as both sections state in pertinent part that a court may, in the furtherance of justice, allow a party to amend any pleading on any terms as may be proper. In most cases the pleading would be an answer, complaint or cross-complaint.

However anyone requesting leave to amend in California must comply with the provisions of California Rule of Court 3.1324 or risk having their motion denied. Rule 3.1324 states that

“(a) Contents of motion

A motion to amend a pleading before trial must:

(1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

(b) Supporting declaration

A separate declaration must accompany the motion and must specify:

(1) The effect of the amendment;

2) Why the amendment is necessary and proper;

(3) When the facts giving rise to the amended allegations were discovered; and

(4) The reasons why the request for amendment was not made earlier.

(c) Form of amendment

The court may deem a motion to file an amendment to a pleading to be a motion to file an amended pleading and require the filing of the entire previous pleading with the approved amendments incorporated into it.

(d) Requirements for amendment to a pleading

An amendment to a pleading must not be made by alterations on the face of a pleading except by permission of the court. All alterations must be initialed by the court or the clerk.

Both the California Supreme Court and Courts of Appeal have stated in numerous decisions that permitting amendments in the furtherance of justice is to be liberally permitted at any stage of the proceeding

“This statutory provision giving the courts the power to permit amendments in furtherance of justice has received a very liberal interpretation by the courts of this state.”  Klopstock v. Superior Ct. (1941) 17 Cal.2d 13, 19.

Liberal amendment of pleadings has been the established policy of California since 1901.

“That the trial courts are to liberally permit such amendments, at any stage of the proceeding, has been established policy of this state since 1901.” Hirsa v. Superior Ct. (1981) 118 Cal.App.3d 486, 488-89

The policy favoring leave to amend is so strong that amendment must be permitted unless the adverse party can show meaningful prejudice which includes the running of the statute of limitations, a delay of the trial, the loss of critical evidence, or added preparation costs.

Unless a showing of meaningful prejudice is made by the adverse party even delay alone is not a sufficient reason for denying leave to amend.

Attorneys or parties in California considering requesting leave to amend a pleading may view a portion of a sample motion for leave to amend containing brief instructions, a memorandum of points and authorities, sample declaration and proof of service by mail sold by the author can use the link shown below.

Sample motion for leave to amend 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 235 sample legal documents.  Visit his website at LegalDocsPro website
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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.

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

 

Requesting a new trial in California pursuant to Code of Civil Procedure section 657

Requesting a new trial in California pursuant to Code of Civil Procedure section 657 is the topic of this blog post.  The relevant statutes governing new trials in California are found in Code of Civil Procedure sections 656 through 663.2. Code of Civil Procedure section 656 states that “A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.”

A motion for a new trial may also be made in a California unlawful detainer (eviction) case on the same grounds as for any other civil case pursuant to Code of Civil Procedure section 1178.

The advantage of a motion for new trial as compared to a motion for judgment notwithstanding the verdict is that it permits the court to reexamine an issue of fact or law. The trial court has very broad discretion to reweigh the evidence, reassess credibility, disbelieve witnesses, and act as a thirteenth juror as stated by several decisions of the California Courts of Appeal.

Code of Civil Procedure section 657 lists seven (7) separate causes for requesting a new trial including irregularity in the proceedings, accident or surprise and newly discovered evidence that is material and which could not with reasonable diligence have been discovered and produced at the trial.  Note that all of the causes must have materially affected the substantial rights of the party moving for a new trial.

When the application for a new trial is made for a cause mentioned in the first, second, third and fourth subdivisions of Section 657, it must be made upon affidavits; otherwise it must be made on the minutes of the court. See Code of Civil Procedure § 658.

However, there are strict deadlines that must be met or the motion will be denied.  The first thing any party who wants to request a new trial should do is file a notice of their intention to move for a new trial and specify all of the seven grounds listed in section 657. Failure to meet the deadlines will result in denial of the motion.

Code of Civil Procedure § 659 states that, “(a) The party intending to move for a new trial shall file with the clerk and serve upon each adverse party a notice of his or her intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court, or both, either:

(1) After the decision is rendered and before the entry of judgment.

(2) Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest; provided, that upon the filing of the first notice of intention to move for a new trial by a party, each other party shall have 15 days after the service of that notice upon him or her to file and serve a notice of intention to move for a new trial.

(b) That notice of intention to move for a new trial shall be deemed to be a motion for a new trial on all the grounds stated in the notice. The times specified in paragraphs (1) and (2) of subdivision (a) shall not be extended by order or stipulation or by those provisions of Section 1013 that extend the time for exercising a right or doing an act where service is by mail.”

Within 10 calendar days after filing the notice of intention to move for new trial the party must file and serve any supporting affidavits unless a stipulation or court order has been obtained extending the time period. See Code of Civil Procedure § 659a.         

While a memorandum of points and authorities with citations to case law and statutory authority is not technically required it is strongly recommended and should be filed and served at the same time as the supporting affidavits.  

Note that the power of the court to rule on a motion for a new trial shall expire 60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier, or if such notice has not theretofore been given, then 60 days after filing of the first notice of intention to move for a new trial. If such motion is not determined within said period of 60 days, or within said period as thus extended, the effect shall be a denial of the motion without further order of the court. See Code of Civil Procedure § 660 for more details.

Attorneys or parties in California who would like to view a portion of a sample California motion for new trial that includes a notice of intention to move for new trial, memorandum of points and authorities and a supporting declaration can use the link shown below.

Sample motion for new trial 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 235 sample legal documents. Visit his website at: LegalDocsPro website

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

Copyright 2013 Stan Burman. All rights reserved.

DISCLAIMER:

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

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

 

Judgment notwithstanding the verdict in California pursuant to Code of Civil Procedure section 629

Judgment notwithstanding the verdict (JNOV) pursuant to Code of Civil Procedure section 629 in California is the topic of this blog post.  A motion for JNOV in California is authorized under Code of Civil Procedure section 629. While a JNOV motion is more limited in scope than a motion for new trial it is an even more powerful tool if used in the right situations. Since a JNOV challenges the legal sufficiency of the evidence at trial prevailing on the motion results in a new and different judgment in the moving party's favor.

A JNOV also differs from a motion for a new trial in that a JNOV motion consists of a single document. The entire motion, including the notice of motion and memorandum of points and authorities, is due at the same time as the notice of intent to move for a new trial.

Code of Civil Procedure § 629 states in pertinent part that, “The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days’ notice, or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.”

Because new trial and JNOV motions are often sought concurrently, the time limit for filing the JNOV motion is exactly the same as the time for filing a notice of intent to move for a new trial. A JNOV motion must be filed and served on all adverse parties within the period for filing a new trial notice of intent under Code of Civil Procedure Section 659 which is within 15 days of the date of mailing notice of entry of judgment by the clerk of the court, or service upon the moving party by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest.   This time period cannot be extended by any court or any stipulation.

Since a JNOV contemplates entry of a new and different judgment, a proposed judgment should be included with the motion or be submitted at the time of hearing at the latest. Prompt compliance is extremely important because the trial court has a very limited time in which to act on the motion for JNOV.

The main limitation to the JNOV is that the trial court's power to grant a motion for JNOV is severely limited. The trial court may not grant a JNOV unless there is an actual verdict. If the jury returns no verdict or an incomprehensible verdict, a JNOV is not appropriate. See Mish v. Bruckus, (1950) 97 Cal. App. 2d 770, 776.

However if no substantial evidence supports the jury’s verdict a JNOV must be granted as one California Court of Appeal has stated that the purpose of a motion for judgment notwithstanding the verdict is not to afford a review of the jury's deliberation but to prevent a miscarriage of justice in those cases where the verdict rendered is without foundation.

Attorneys and parties in California who would like to view a portion of a sample motion for judgment notwithstanding the verdict that contains a memorandum of points and authorities, proposed order and proof of service by mail can use the link shown below. 
 

Sample motion for judgment notwithstanding the verdict

The author of this blog post Stan Burman is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 235 sample legal documents. Visit his website at: LegalDocsPro website

 

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

 

Copyright 2013 Stan Burman. All rights reserved.

DISCLAIMER:

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

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

 

 

 

 

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

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

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

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

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

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

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

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

Sample motion for reconsideration

The author of this blog post Stan Burman is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 235 sample legal documents. Visit his website at LegalDocsPro website

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

Copyright 2013 Stan Burman. All rights reserved.

DISCLAIMER:

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

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

 

California tenant defense document collection

Are you a California tenant being evicted? Fight back by doing it yourself and save big $$$! 

FREE sample legal documents for California available for immediate download

FREE sample legal documents for California are now available for immediate download at the new website for LegalDocsPro. The sample documents currently available are a demand for bill of particulars, a last will and testament, a meet and confer letter, a request for judicial notice and a request for statement of damages.  

All documents are in Microsoft Word format and are available for immediate download at the link shown below: FREE sample legal documents for California

Note that the author of these documents is NOT an attorney and no guarantee or warranty is provided with these documents.

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.