California Litigation Blog

Written agreements for unmarried couples in California

2015-08-05T04:49:00.000-07:00

Written agreements for unmarried couples in California are the topic of this blog post.

Any unmarried couples in California that are living together should consider the use of a written agreement detailing their rights and obligations to each other. This type of written agreement is known by several names including a living together agreement and a Cohabitation Agreement.

The main reason for unmarried couples to consider using a living together agreement is the simple fact that most unmarried couples that start living together and set up a household generally will have their own separate expectations regarding their finances and what their obligations to each other are, or will be.

The basic problem is that most unmarried couples exhibit a lack of communication as to their expectations and that can lead to serious trouble down the road for the simple reason that one partner may expect that each partner will retain their own separate property, and that neither of them will be obligated to support the other partner in the event that they end their relationship. However the other partner may have exactly the opposite expectation. If the couple ends their relationship, these conflicting expectations can lead to tremendous distress and unhappiness in the lives of both partners.

Consider a hypothetical situation where one partner is much wealthier than the other partner, and the relationship breaks up. The wealthier partner may be served with a lawsuit by the other partner for what is commonly known as "palimony", with the other partner claiming that the wealthier partner promised that they would support him or her for life, and/or that all property acquired during the relationship would belong to both partners equally in the event that the relationship ended.

If there is no written agreement governing their rights and obligations, the wealthier partner could be found legally obligated and ordered by a court to divide their property with and/or pay support to the other partner, even if a desire to avoid these obligations was the very reason they did not marry their partner in the first place.

This situation is both quite common and particularly relevant in the State of California which is one of the most litigious States in the United States and is also where the term “palimony” was first used in reference to the landmark California Supreme Court case of Marvin v. Marvin (1976) 18 Cal.3d 660, 674.

To use another common example, one partner may have quit their job to make a home for their partner, who in return promised that they would always be "taken care of," only to find when they break up that all of the assets acquired "together" are in the other partner's name, and the other partner is denying that he or she ever made any promises to their partner.

In the State of California as well as some other States, the courts do generally enforce most agreements between unmarried cohabitants regarding their property. These agreements fall into three categories: implied, oral, and written. Written agreements that are signed by both parties, while they may not be perfect are still much more effective compared to oral and implied agreements in terms of providing the parties with some measure of certainty. Having a written document helps insure that the partners and not a future jury will determine exactly what the terms of the agreement are. They also provide each partner with an opportunity to communicate and clarify their expectations of each other.

To avoid any misunderstandings, both partners should discuss their expectations regarding financial matters before they move in together. When they do, they may find out that the two of them have very different understandings as to what their understanding really is.

Once both partners have talked through the issues and reached a mutual understanding, they should put that agreement in writing.

Attorneys or parties in California who would like to view a portion of a 12 page sample Cohabitation Agreement sold by the author can see below.

Sample Cohabitation Agreement by Stan Burman

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.

You can view portions of over 300 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro

*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

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.

Over 300 sample legal documents for sale

2015-08-05T03:48:00.001-07:00

Over 300 sample legal documents for sale from LegalDocsPro

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

Homeowner rights during foreclosure in California

2015-05-29T06:07:00.000-07:00

Homeowner rights during foreclosure in California are the topic of this blog post.

Even though the great majority of foreclosures in California are non-judicial, California homeowner’s do have certain rights which were greatly strengthened when the California legislature passed and the Governor signed the legislation that is commonly known as The Homeowner’s Bill of Rights.

The California statutes that comprise the HBOR are based at least to some extent on the National Mortgage Servicing Settlement that was entered into between the attorney’s generals of the various states and the five largest mortgage servicers in February of 2012. The HBOR became effective on January 1, 2013 and includes sunset provisions for certain statute that will expire on January 1, 2018 although many of the obligations imposed on mortgage servicers will continue beyond that date.

The HBOR has resulted in some major changes in the non-judicial process in California in that it provides important protections to California homeowners by imposing new requirements on mortgage servicers. The changes in the foreclosure process in California required by the HBOR statutes are listed below.

The first and most important change is that the HBOR requires new notices to borrowers under Civil Code section 2923.55, which both expands the existing pre-foreclosure notice requirements and prohibits a servicer from recording a notice of default until it has informed the borrower of their right to request copies of documents proving the mortgage servicer’s right to foreclose and that the borrower may be entitled to protections under the Servicemembers’ Civil Relief Act. In addition Civil Code § 2924(a)(5) requires a written notice to the borrower after the postponement of a foreclosure sale for more than 10 business days although a failure to comply is not grounds to invalidate an otherwise valid sale.

The HBOR also imposes a ban on the widely despised practice known as “dual tracking” as mortgage servicers in California must now place a pending foreclosure on hold and not proceed any further while a “complete” first lien loan modification application is pending, on appeal, or while the borrower is in compliance with an approved loan modification agreement. A loan modification application is “complete” when the borrower has submitted all required documents “within the reasonable timeframes” set by the servicer. See Civil Code §§ 2923.6, 2924.11, 2924.18.

Any servicer that services mortgages in California that conduct more than 175 foreclosures per year in California are required to provide a single point of contact by assigning a single individual or team of individuals with knowledge of the loan and status of the possible loan modification and must be available to the borrower as to such things as the loan status, foreclosure prevention options available and the coordination of documentation. A decision maker must also be available to a borrower. These provisions are found in Civil Code § 2923.7.

Another important change is the provision in the HBOR that allows a homeowner to require any mortgage servicer to document their right to foreclose. The Act also clearly states that an entity cannot record a notice of default or otherwise initiate the foreclosure process unless it the holder of the beneficial interest under the deed of trust, the original or substituted trustee, or the designated agent of the holder of the beneficial interest. See Civil Code § 2924(a)(6).

The widespread practice known as “robo-signing” is now banned as representatives of a financial institution or servicer may not process foreclosure documents without verifying them for accuracy. See Civil Code § 2925.17.

Mortgage servicers are now required to have loss mitigation procedures under the HBOR as it states that unless a borrower has previously exhausted the first lien loan modification process, within five business days of recording a notice of default, servicers that conduct more than 175 foreclosures per year in California must send a written notice advising the borrower regarding foreclosure prevention alternatives pursuant to Civil Code § 2924.9. Receipt of an application for loan modification or any other documents must be acknowledged within five business days pursuant to Civil Code § 2924.10. If a loan modification is denied, the servicer must provide information regarding the time to in which to appeal the denial and any reason(s) for the denial pursuant to Civil Code § 2923.6.

California homeowner’s that may be in foreclosure proceedings or are seriously delinquent on their mortgage payments will find the HBOR provides some very welcome relief from an otherwise confusing and frustrating non-judicial foreclosure process.

If you are in need of assistance with any California or Federal litigation matters including foreclosure defense, 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 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

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

You can view sample legal document packages for sale by visiting http://www.legaldocspro.net

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.

What can I do about an asset that was not listed in my divorce decree or judgment in California

2015-05-05T07:25:00.000-07:00

Assets that were not listed in any divorce decree or judgment in California

Sometime parties in California that have already had a dissolution (divorce) judgment in California discover an omitted asset many weeks or months later and wonder what their options are. This blog post discusses the issue of assets or liabilities that were not listed in any divorce decree or judgment in California. These are what is known as omitted assets.

A party can request that the court adjudicate any assets or liabilities that were not mentioned in the judgment of divorce as those assets were not previously adjudicated in the judgment of dissolution of marriage and in most cases were never mentioned in any documents filed with the court or any court orders. The request is filed under the provisions of Family Code section 2556. by the filing of a notice of motion or request for order.

A request filed under Family Code section 2556 is most often filed in divorce cases but can also be filed in a legal separation or nullity case in California.

If you use this request in the right situations it is very powerful as there are no time limitation specified in the statute although in my personal opinion you should file the motion as soon as possible after discovering the omitted asset or liability is a good idea. I also want to point out that the court will most likely deny any request if you have already filed another motion or request with the court under another code section or legal theory that mentions the omitted asset and the court has denied that request

Family Code § 2556 states that,

“In a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court has continuing jurisdiction to award community estate assets or community estate liabilities to the parties that have not been previously adjudicated by a judgment in the proceeding. A party may file a postjudgment motion or order to show cause in the proceeding in order to obtain adjudication of any community estate asset or liability omitted or not adjudicated by the judgment. In these cases, the court shall equally divide the omitted or unadjudicated community estate asset or liability, unless the court finds upon good cause shown that the interests of justice require an unequal division of the asset or liability.”

Before this code section was enacted into California law the courts allowed a former spouse to file a separate partition action to divide any assets that were omitted from a divorce judgment.

Any community estate asset or liability that was not mentioned in the judgment should most likely be considered an omitted asset.

Both the California Supreme Court and the California Courts of Appeal have stated that the doctrine of res judicata does not prevent the division of community property assets that were not adjudicated in any prior judgment.

The California Supreme Court has also stated that the entitlement of a spouse to a share of any community property arises at the time that the property is acquired and any property which is not mentioned in the judgment or any of the pleadings is considered unadjudicated by any judgment and is therefore subject to further legal proceedings as the former spouses are considered tenants in common until the asset can be adjudicated.

The moving party should make a sufficient showing that the omitted asset or liability is in fact a community estate asset or liability as the asset was acquired or the liability was incurred during the marriage. The California Supreme Court has stated that any property acquired by purchase during the marriage is presumed to be community property.

Attorneys or parties in California that would like to view a portion of a sample 11 page motion to adjudicate an omitted asset under Family Code section 2556 containing brief instructions, a memorandum of points and authorities and sample declaration sold by the author can use the link below.

Sample Motion to Adjudicate Omitted Asset Under Family Code Section 2556 by Stan Burman

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.

How can I fight my eviction in California

2015-04-28T07:43:00.001-07:00

Sanctions award under California Family Code section 271

2015-04-18T06:21:00.000-07:00

http://www.legaldocspro.com/blog/request-for-family-code-section-271-sanctions-in-california/

Demanding release of mechanic's lien in California

2015-04-15T07:32:00.001-07:00

Demanding the release of a mechanic’s lien in California is the topic of this blog post.

A California demand for release of mechanic’s lien is sent pursuant to the provisions of Civil Code section 8102. The demand letter must be served on the party that recorded the lien at least 10 days before any petition for release of mechanic’s lien is filed.

The party demanding the release of the mechanic’s lien should wait until at least 90 days have passed since the date that the mechanic’s lien was recorded with the county recorder. The demand letter should only be sent once at least 90 days have passed since the date that the mechanic’s lien in situations where the person or entity that recorded the lien has not filed any complaint to foreclose on the mechanic’s lien. The reason for waiting at least 90 days is that Civil Code § 8460(a) states that the mechanics lien expires and is unenforceable after 90 days unless the recording party has filed a complaint to foreclose on the mechanic’s lien.

The demand letter should list the date that the mechanic’s lien was recorded along with the complete document number and the county where the mechanic’s lien was recorded. It should also list the complete street address and the full legal description of the real property including the assessor’s parcel number.

The demand should be served by personal delivery, certified or registered mail with return receipt requested, express mail or overnight delivery using Federal Express or other overnight delivery company pursuant to Civil Code § 8110.

The letter should demand that the lien be released within ten (10) calendar days from the date that the notice is served or the demanding party will file a petition with the Court for an order releasing the mechanics lien and ordering them to pay reasonable attorney’s fees and costs involved in filing the petition.

I need to emphasize that if the demand letter does not contain the required information or is not served correctly that can result in the court denying any petition for release of the mechanic’s lien and ordering the party that filed the petition to pay for the attorney’s fees and costs of the prevailing party.

Attorneys or parties in California that would like to view a sample demand letter for release of mechanic’s lien created by the author available for free download can see below.

Sample Mechanics Lien Release Demand Letter for California by Stan Burman

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

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

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

You can view sample legal document packages for sale by visiting http://www.legaldocspro.net

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.

Modifying child custody and visitation orders in California

2015-04-04T23:56:00.000-07:00

Modifying child custody and visitation orders in California is the topic of this blog post.

There are several statutes and cases that outline the standards used and the burden of proof that must be met by the party moving for modification.

California law states that child custody and visitation orders generally are modifiable throughout the child's minority whenever the court finds a modification is "necessary or proper" in the child's best interests. See Family Code § 3022.

And at least one California Court of Appeal has stated that a family law court has continuing jurisdiction over child custody and visitation matters such that they remain pending even after entry of a dissolution or legal separation or nullity judgment in California.

Although the statutes governing custody adjudications only require courts to ascertain the child's best interest, the best interest standard takes on a new meaning once a "final" judicial custody determination is in place: A party seeking to modify a "permanent" custody order can do so only it they make a sufficient showing of a significant change of circumstances that affect the child to such a degree that modification is essential to the child's welfare.

While the party seeking a modification of child custody must make a showing of changed circumstances in many cases, there are exceptions to this rule that should be carefully considered and reviewed by any party contemplating requesting that the Court modify a child custody and/or visitation orders in California.

For instance the changed circumstances rule is triggered only after a "final" or "permanent" custody adjudication. If a custody order is only an interim or temporary order than the ordinary best interest standard applies.

In order to encourage parties to enter into custody stipulations, any doubts about whether the parties intended a stipulated custody order to be a "final" or "permanent" custody adjudication will be resolved against finality and against application of the changed circumstances rule in any subsequent proceedings to modify the stipulated order.

Any stipulated order will be considered to be temporary or interim in nature unless the stipulated order clearly states that it is a final judgment as to the issue of custody.

As to physical custody, the changed circumstances rule applies when the modification request seeks to remove custody from one parent and give it to the other. By contrast, no change of circumstances need be shown as a prerequisite to altering only the co-parenting schedule (the amount of time the child spends in each parent's household) under a joint custody order. Proposed changes in parenting time are "not on a par with a request to change physical custody from sole to joint custody, or vice versa"; the only standard the moving parent must meet in such cases is the child's best interest.

So long as the joint custody award itself is not being changed, the court has very broad discretion to revise the "coparenting residential arrangement" where the parents are unable to agree and call upon the court to intervene.

And the changed circumstances rule does not apply when a parent requests only a modification of the visitation arrangement (whether in a joint custody or sole custody situation). Because such a modification does not change "custody," the trial court considers a visitation modification solely under the child's best interests standard.

Attorneys or parties in California that would like to view a portion of a sample 13 page motion for modification of child custody and visitation containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and sample declaration sold by the author can see below.

Sample Motion to Modify Child Custody and Visitation in California by Stan Burman

Opposing a motion for order taxing costs in California

2015-04-02T07:05:00.002-07:00

Opposing a motion for an order taxing costs in California

Opposing a motion for an order taxing costs in California is the topic of this blog post. Any parties that wish to oppose a motion for an order taxing costs should file and serve their opposition to the motion at least nine (9) court days before the hearing pursuant to Code of Civil Procedure section 1005(b) and should serve their opposition by overnight delivery, personal service or other means authorized by Code of Civil Procedure section 1005(c).

Any party served with a motion for an order taxing costs or striking costs should carefully review the motion and supporting documents to determine the grounds for the opposition.

The first possible ground for opposition would be that the motion was untimely as California Rule of Court 3.1700(b)(1) states in pertinent part that,

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013.”

Thus any motion for an order striking or taxing costs in California must be served no later than 15 days after service of the memorandum of costs although that deadline is extended to 20 days if the memorandum of costs was served by mail.

Another possible ground for opposition would be that the motion does not comply with the provisions of California Rule of Court 3.1700(b)(2) which states that,

“Unless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.”

Therefore unless the party seeking to strike or tax costs is objecting to the entire memorandum of costs their objections must be made by the same number and appear in the same order as the cost items appear on the memorandum of costs. They must also state why that particular item is objectionable. This is a common ground for opposition as many motions to strike or tax costs do not state sufficient facts to demonstrate that the cost item that is objected to was not properly claimed.

Several decisions of the California Courts of Appeal have stated that a properly verified memorandum of costs is prima facie evidence that the items listed are properly claimed and the party objecting to those costs must make a sufficient showing that the items listed were neither reasonable nor necessary in that particular case and that mere allegations or contentions without more is not a sufficient showing.

A California Court of Appeal has stated that copies of bills, invoices or similar documents substantiating the claimed costs are not required to be attached to the memorandum of costs.

At least two California Court of Appeals have stated that the issue of whether any particular item on a cost memorandum was reasonable or necessary is a question of fact.

Attorneys or parties in California that would like to view a portion of a 14 page sample opposition to motion to tax or strike costs containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service sold by the author can see below.

Sample Opposition to Motion to Tax Costs in California by Stan Burman

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

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

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

DISCLAIMER:

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

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

Objections to proof of claim in United States Bankruptcy Court

2015-04-02T04:20:00.002-07:00

Objections to a proof of claim filed in United States Bankruptcy Court are the topic of this blog post. The United States Bankruptcy law states that any party in interest may file an objection to any proof of claim filed in a Bankruptcy case. All debtors in Chapter 13 cases are considered a party in interest and have the right to file an objection to any proof of claim filed in their case. Debtors in other cases such as Chapter 7 may or may not be considered as a party in interest depending on their case.

It is vitally important to properly object to any claims filed in a Bankruptcy case that is not timely filed, is defective for failure to comply with Bankruptcy law requirements or is defective in any other way or relates to any debt the amount or existence of which is disputed. The reason for this is that Bankruptcy law states that unless a party in interest objects any claim filed is deemed allowed.

It is therefore critical that all proofs of claim be carefully reviewed to determine if there are valid grounds for filing an objection. The pertinent law is 11 U.S.C. § 502(a) which states in pertinent part that, any claim filed “is deemed allowed, unless a party in interest . . . objects.” The burden is on the party filing the objection to prove to the Court that the claim is not valid and should not be paid.

In particular a debtor or their attorney should carefully review any proof of claim filed to determine if the claim was timely filed as Federal Rule of Bankruptcy Procedure 3002(c) requires most proofs of claim to be filed no later than 90 days after the first date set for the meeting of creditors called under § 341(a) of the Code.

It should be noted that Federal Rule of Bankruptcy Procedure 3001 contains numerous detailed requirements for each specific type of proof of claim and the proof of claim should be carefully reviewed to determine if it meets the strict requirements of Rule 3001.

Any objection to a proof of claim should be filed and served as soon as it has been determined that there are valid grounds for filing an objection.

Some of the more common grounds for objecting to a proof of claim are:

The creditor failed to attach sufficient documentation to prove that a debt is owed;

The amount of the claim is incorrect;

The same claim was filed more than once;

The claim was not filed in a timely manner;

The classification of the claim as secured or priority is incorrect, and

The claim states improper interest amounts or fees.

Anyone who wishes to file and serve an objection to a proof of claim should consult the local rules for their particular Bankruptcy Court and/or call the clerk of the Court as most of them have their own specific rules and procedures for objections to a proof of claim.

Attorneys or parties that would like to view a portion of a sample objection to a proof of claim created and sold by the author of this blog post can see below.

Sample Objection to Proof of Claim in United States Bankruptcy Court by Stan Burman

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

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

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

DISCLAIMER:

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

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

Most important reasons for hiring a virtual paralegal

2015-04-02T03:18:00.000-07:00

The most important reasons for hiring a virtual paralegal are the topic of this blog post.

A virtual paralegal is generally defined as an individual that maintains a virtual office and provides legal research and document preparation services.

Retaining the services of a virtual paralegal allows attorneys and law firms the best of both worlds in that they can obtain the services of someone experienced in both legal research and document preparation including answers, complaints and more.

There are also other major benefits which I have listed below.

NO training costs!
NO unemployment taxes!
NO Social Security taxes!
NO Worker's Compensation Insurance!
NO sick time or vacation pay!
NO retirement or health plans!
NO more paying for idle time!
NO workspace issues as virtual paralegals work from home or an office!
NO overtime!

The challenges of the modern economy have resulted in the legal profession becoming a constantly evolving practice the result of which is increased work requiring more and more of an attorney's time. Virtual and freelance paralegal jobs are one resource that more and more attorneys and law firms are utilizing particularly with the current economic situation that is resulting in downsizing at many law firms. Paralegals working as virtual or freelance contractors are available for short or long-term projects depending on the needs of a particular client.

Most virtual or freelance paralegals have a wide range of experience allowing them to assist attorneys on a variety of projects. For instance I have worked in California and Federal litigation since 1995 in many diverse areas of the law and have collected unpaid California Court judgments since 1992.

Because a virtual paralegal career covers a variety of different assignments, they aren't necessarily
restricted to specific work environments. Solo attorneys’ who work on their own, maintain a virtual office or that have started new law offices find the extra support offered by virtual paralegal employment quite helpful. It can be expensive to hire paralegal work through traditional methods such as temporary legal staffing agencies especially if there isn't enough work to keep the paralegal busy all the time. With the use of modern technology a freelance paralegal does not even need to travel to a lawyer’s office as documents can be scanned and e-mailed to them, or can be uploaded to a file storage site or the increasingly popular “cloud” sites. This frees up billable time, makes good use of an attorney's time and adds value to their practice.

Even in a fully staffed office, there are times when unplanned employee absences result in a backlog of work. A virtual paralegal can provide the necessary coverage without a large commitment. The great thing about virtual paralegals is that they often have years of experience and can be a valuable asset to any law office.

The author of this post, Stan Burman, has collected unpaid California judgments since 1992 and has also worked in California and Federal litigation since 1995 as a freelance paralegal. Anyone with an unpaid judgment of at least $20,000.00 entered in the State of California or that is involved in California or Federal litigation that is interested in retaining the services of Mr. Burman can contact him at DivParalgl@yahoo.com for more information. Visit his blog at http://www.legaldocspro.net/blog

You can view portions of over 300 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro

*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

View sample legal document packages for sale at: http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this 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 post is NOT intended to constitute legal advice.

The materials and information contained in this post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this 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.

Claiming prejudgment costs after judgment in California

2015-03-31T06:59:00.000-07:00

Claiming prejudgment costs after a judgment in California are the topic of this blog post. Claiming prejudgment costs after a judgment in California is accomplished by the filing and service of a verified memorandum of costs by the prevailing party entitled to costs.

The law in California states that a memorandum of costs must be verified by the party or their attorney and must be served and filed within a specified deadline. However I do need to emphasize that because each case has different circumstances the actual deadline for any particular case depends on a variety of factors which will be discussed below.

The deadline in California to file and serve a memorandum of costs is stated in California Rule of Court 3.1700(a)(1) which states in pertinent part that, "A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first."

Code of Civil Procedure § 664.5 states that,

“(a) In any contested action or special proceeding other than a small claims action or an action or proceeding in which a prevailing party is not represented by counsel, the party submitting an order or judgment for entry shall prepare and mail a copy of the notice of entry of judgment to all parties who have appeared in the action or proceeding and shall file with the court the original notice of entry of judgment together with the proof of service by mail. This subdivision does not apply in a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation.

(b) Promptly upon entry of judgment in a contested action or special proceeding in which a prevailing party is not represented by counsel, the clerk of the court shall mail notice of entry of judgment to all parties who have appeared in the action or special proceeding and shall execute a certificate of such mailing and place it in the court’s file in the cause.

(c) For purposes of this section, “judgment” includes any judgment, decree, or signed order from which an appeal lies.

(d) Upon order of the court in any action or special proceeding, the clerk shall mail notice of entry of any judgment or ruling, whether or not appealable.

(e) The Judicial Council shall, by January 1, 1999, adopt a rule of court for the purposes of providing that, upon entry of judgment in a contested action or special proceeding in which a state statute or regulation has been declared unconstitutional by the court, the Attorney General is promptly notified of the judgment and that a certificate of that mailing is placed in the court’s file in the cause.”

However I cannot stress enough that in order for a clerk’s notice of entry of judgment to trigger the 15-day deadline it must comply with Code of Civil Procedure § 664.5. In some cases a clerk will simply mail a file-stamped copy of the judgment with something attached known as a “Certificate of Mailing” which does not satisfy the “service pursuant to court order” requirement of subdivision of Code of Civil Procedure § 664.5 and as a result fails to start the 15-day clock as has been stated by the California Supreme Court in at least two cases.

Attorneys or parties in California should carefully review any notice of entry of judgment served by the clerk to determine whether or not the clerk has served a notice of entry of judgment that fully complies with the provisions of Code of Civil Procedure § 664.5 including a statement that document mailed by the clerk is being given upon “order of the court" or "under section 664.5. If the clerk fails to do so and no other party serves and files a notice of entry of judgment the deadline to file and serve a memorandum of costs is 180 days after entry of judgment.

To view over 300 sample legal documents created by the author of this blog post visit: View over 300 sample legal documents for sale

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

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

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

DISCLAIMER:

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

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

Motion to correct clerical error in judgment in California

2015-03-29T05:35:00.000-07:00

A motion to correct a clerical error in a judgment in California is the topic of this blog post.

A motion to amend a judgment in California to correct a clerical error is filed pursuant to Code of Civil Procedure section 473(d). This motion is used to correct inadvertence or errors in recording the judgment. However it should be noted that it cannot be used to contest the intended terms of the judgment. The motion can also request that the judgment be amended nunc pro tunc as of the date the original judgment was entered.

A motion to amend a judgment in California to correct a clerical error is filed on the grounds that the recorded terms of the judgment do not agree with the outcome indicated when the judgment was initially declared. This motion is a very limited tool as it is authorized to be used only to correct clerical errors.

However a trial court is given very broad discretion in classifying such errors as an omission or mistake in a judgment; a misdescription in a judgment, inadvertence in signing a faulty judgment, and an ambiguity in a judgment.

The characterization of an error in a judgment as clerical rather than judicial is critical as a clerical error can be corrected at any time, sua sponte by the court or on a motion from one of the parties, even years after the case has closed. But a judicial error can be only corrected on a motion for new trial or on a motion to vacate and enter a new judgment.

Thus the party who is seeking to persuade the court that the error was merely clerical must be very careful and also aware of how to properly characterize the error, and be sure that the error is in fact clerical and not judicial.

However it should also be noted that there are many instances in which an omission or mistake in a judgment has been characterized as a clerical error. These instances include:

An omission in the determination of an account and decree of distribution involving the probate of an estate;

The failure to include a direction that one party pay another party's attorney's and accountant's fees when recording a judgment;

The failure of a judgment to clearly name the defendants, and to state their liability to the plaintiff, and

The California Supreme Court stated in a case decided over 75 years ago that California Courts have the power to correct clerical errors in their judgments at any time, regardless of how much time has passed since the error was made or the judgment entered. See Estate of Goldberg (1938) 10 C2d 709, 717. In that case the Supreme Court stated that a hearing and the resulting order nunc pro tunc correcting a clerical error in a decree of final distribution of an estate 35 years after the original entry was valid.

The California Supreme Court has also stated in a case decided over 40 years ago that all courts have the inherent power to enter an order entering a judgment nunc pro tunc All courts have the inherent power to enter orders for judgments nunc pro tunc so that the judgment will be held effective prior to the date on which it was actually entered.

Used in the right situations, a motion to amend a judgment to correct a clerical error can allow the moving party to correct a clerical error in a judgment, even if years or decades have passed since the date of the original judgment or decree. But the motion should only be used in the right situations.

Attorneys or parties in California who would like to view a portion of a 14 page sample motion to amend a judgment to correct a clerical error containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority; sample declaration, proposed order and proof of service by mail sold by the author can see below.

Sample Motion to Amend California Judgment to Correct Clerical Error by Stan Burman

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

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

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

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

DISCLAIMER:

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

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

Motion for reconsideration in United States District Court

2015-03-28T21:23:00.000-07:00

A motion for reconsideration in United States District Court is the topic of this blog post.

This motion is technically known as a motion to alter or amend judgment and is authorized by the provisions of Federal Rule of Civil Procedure 59(e).

This motion must be filed within 28 calendar days after the judgment is entered. However if used in appropriate situations filing a motion to alter or amend a judgment can be an effective strategy. This motion has another advantage in that a timely-filed motion extends the time to file a notice of appeal under the provisions of Federal Rule of Appellate Procedure 4(a) until the entry of the order disposing of the motion.

District courts have the power to “alter or amend” a judgment by motion under FRCP 59(e). The deadline for filing a Rule 59(e) motion is the same as a motion for new trial as FRCP 59(e) states that, “(e) Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.”

Although FRCP 59(e) does not state any specific grounds for relief the Courts have ruled that a motion is proper where there is newly discovered evidence, the judgment is based on a clear error committed by the Court or is manifestly unjust, or an intervening change in controlling law since the date of entry of judgment.

Depending on the circumstances of any particular case a party may actually have more than 28 calendar days to file a Rule 59(e) motion as in order to start the clock running on the 28 day deadline requires a final judgment requiring a separate document under Rule 58(a) which is considered entered when the judgment is both entered in the civil docket under Rule 79(a) and either (a) it is set forth on a separate document or (b) 150 days have run from entry of the judgment in the civil docket, whichever occurs first. See Rule 58(c)(2).

The moving party must meet their burden of showing sufficient facts and evidence to support their grounds and must show that a miscarriage of justice will result if the judgment is not altered or amended.

For example a party requesting to alter or amend a judgment on the grounds of newly discovered evidence must show that the newly discovered evidence was not available at the time of the judgment being challenged or if the evidence was available at the time of the judgment being challenged that the party or counsel made a diligent effort to discover the evidence but was unsuccessful.

Any party requesting to alter or amend a judgment on the grounds of a clear error committed by the Court or that the judgment is manifestly unjust must show extreme prejudice as a result of the alleged error or otherwise show that the judgment is somehow manifestly unjust.

Lastly any party requesting to alter or amend the judgment on the grounds of an intervening change in controlling law must specifically state the particular controlling law that has been changed since the date of entry of the judgment and also the effect that change has had on the validity of the judgment.

Attorneys or parties that would like to view a portion of a 13 page sample motion to alter or amend a judgment 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 see below.

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

View over 300 sample legal documents for sale

You can view sample legal document packages by clicking the link shown below.

View sample document packages

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

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

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

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.

New trial motion in United States District Court

2015-03-28T20:50:00.000-07:00

A new trial motion in United States District Court is the topic of this blog post.

Federal Rule of Civil Procedure Rule 59(a) authorizes the filing of a motion for a new trial on some or all of the issues for civil cases in United States District Court.

A new trial motion can be only be filed using certain grounds and must be filed within 28 calendar days after the judgment is entered. However in situations where the stakes are high enough filing a motion for new trial can be very useful. Another advantage is that a timely-filed new trial motion extends the time to file a notice of appeal under the provisions of Federal Rule of Appellate Procedure 4(a) until the entry of the order disposing of the motion for new trial.

The main grounds for a motion for new trial under Rule 59(a) after a jury trial are (1) the verdict is against the weight of the evidence; (2) newly discovered evidence: (3) prejudicial conduct by the court or opposing counsel, and (4) juror misconduct although other grounds might apply in certain situations.

Federal Rule of Civil Procedure 59(a) states that,

“(a) In General.

(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues—and to any party—as follows:

(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or

(B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.

(2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.”

Rule 59(b) states that,

”(b) Time to File a Motion for a New Trial. A motion for a new trial must be filed no later than 28 days after the entry of judgment.”

However because each individual case is unique a party may actually have more than 28 calendar days to file the motion for new trial as in order to start the clock running on the 28 day deadline requires a final judgment requiring a separate document under Rule 58(a) which is considered entered when the judgment is both entered in the civil docket under Rule 79(a) and either (a) it is set forth on a separate document or (b) 150 days have run from entry of the judgment in the civil docket, whichever occurs first. See Rule 58(c)(2).

For example a party requesting a new trial on the grounds that the verdict is against the weight of the evidence has the burden of convincing the judge that the verdict is against the clear weight of the evidence or is based on evidence which is false or will result in a miscarriage of justice.

Parties requesting a new trial on the grounds of newly discovered evidence must show that the evidence in question was discovered after the date of the trial; that the moving party exercised due diligence to discover the evidence before the end of the trial; the evidence is material and not merely cumulative or impeaching; and the new evidence would likely have changed the outcome of the case.

A party requesting a new trial on the grounds of prejudicial conduct by the judge or opposing counsel must show that they were so severely prejudiced that they were prevented from having a fair trial. For example it is improper for a judgment to comment on any ultimate factual issues such as the issue of which party was negligent, which party breached the contract, etc. And a new trial can be ordered in cases where the opposing counsel committed misconduct at the trial that made it reasonably certain that the verdict was influence by the prejudicial statements. An opening or closing statement incorrectly expands any potential grounds of liability or takes away any benefit the aggrieved party may have won a prior motion such as a motion for partial summary judgment, violating an in limine order or the Federal Rules of Evidence.

The party requesting a new trial on the grounds of juror misconduct must show that the juror misconduct resulted in them suffering prejudice which could include extraneous information obtained by a juror from friends or relatives or a juror introducing facts or evidence acquired outside of the courtroom during jury deliberations.

Attorneys or parties that would like to view a portion of a 16 page sample motion for new trial 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 can see below.

Sample Motion for New Trial Under Rule 59(a) by Stan Burman

California criminal discovery procedure

2015-03-23T19:13:00.000-07:00

California criminal discovery procedure is the topic of this blog post. The statutes governing discovery in criminal cases in California are found in Penal Code sections 1054 through 1054.10. These statutes authorize a defendant in a criminal case in California to request specified materials and information from the prosecuting attorney as long as they comply with their obligation to furnish specified materials and information to the prosecuting attorney.

Section 1054.5(b) of the Penal Code authorizes any defendant in a criminal case in California to request all materials and information specified in Penal Code section 1054.1 from the prosecuting attorney who then has 15 days to furnish the requested items. If the prosecution does not comply the defendant may request a court order for the prosecution to produce the desired materials and information and the court has the discretion to order immediate disclosure, commence contempt proceedings, continue the trial and award other specified relief.

Penal Code § 1054.5 states that,

“(a) No order requiring discovery shall be made in criminal cases except as provided in this chapter. This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant, or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in performing their duties.

(b) Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.

(c) The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted. The court shall not dismiss a charge pursuant to subdivision (b) unless required to do so by the Constitution of the United States.”

Penal Code § 1054.1 states that,

“The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:

(a) The names and addresses of persons the prosecutor intends to call as witnesses at trial.

(b) Statements of all defendants.

(d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial.

(e) Any exculpatory evidence.

(f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.”

However before serving a request for discovery in a criminal case the defendant or their attorney should be sure to comply with the provisions of Penal Code § 1054.3 that require disclosure of specified materials and information.

Penal Code § 1054.3 states in pertinent part that,

“(a) The defendant and his or her attorney shall disclose to the prosecuting attorney:

(1) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial.

(2) Any real evidence which the defendant intends to offer in evidence at the trial.

(b) (1) Unless otherwise specifically addressed by an existing provision of law, whenever a defendant in a criminal action or a minor in a juvenile proceeding brought pursuant to a petition alleging the juvenile to be within Section 602 of the Welfare and Institutions Code places in issue his or her mental state at any phase of the criminal action or juvenile proceeding through the proposed testimony of any mental health expert, upon timely request by the prosecution, the court may order that the defendant or juvenile submit to examination by a prosecution-retained mental health expert.”

Serving a request for discovery under Penal Code § 1054.5 should be done at the same time that the defendant or their attorney provides the prosecuting attorney with the specified materials and information specified in Penal Code § 1054.3.

Attorneys or parties in California that would like to view or download a sample request for discovery under Penal Code section 1054.5(b) created by the author can use the link shown below.

Sample request for discovery in California ciminal case

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

View over 300 sample legal documents for sale

You can view sample legal document packages by clicking the link shown below.

http://www.legaldocspro.com/products_main.aspx

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

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

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

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.

Stay of enforcement of judgment in California

2015-03-17T06:57:00.000-07:00

A stay of enforcement of a judgment in California is the topic of this blog post. Code of Civil Procedure section 918 is the statutory authorization for a trial court to stay the enforcement of any judgment but only for a limited period of time. For most California judgments such as money judgments the trial court can stay the enforcement for no more than 10 days beyond the last date on which a notice of appeal could be filed.

A request for a stay of enforcement of a California judgment requires that the moving party file a notice motion or ex-parte application for what is known as a stay of execution of the judgment.

Any parties in California that have had had a money judgment entered against them in California need to realize the vital importance of immediately seeking a stay of execution of any money judgment as soon as possible after the judgment has been entered as Code of Civil Procedure section 683.010 states that, “Except as otherwise provided by statute or in the judgment, a judgment is enforceable under this title upon entry.” This means that California law states that a judgment creditor can begin collection proceedings to enforce the judgment as soon as the judgment has been entered by the clerk of the court, in some cases that may be the same day!

In cases where the judgment creditor appears to be particularly aggressive and a party believes that they may begin collection efforts right away they may wish to file an ex-parte application for a stay of execution.

The period of time in which the execution of a judgment may be stayed varies depending on whether the case is a limited civil or unlimited civil case and whether or not a notice of entry of judgment has been served by either the clerk of the court or any other party to the action. Therefore every case is unique and this is the reason there are several different deadlines for filing a notice of appeal for both limited civil case and unlimited civil cases. Examples of the different deadlines will be given below.

California Rule of Court 8.822 governs the deadline for filing a notice of appeal in limited civil cases.

For most limited civil cases in which the clerk of the court or any party has served a notice of entry of judgment on the defendant the deadline to file a notice of appeal is 30 days from the date that the notice of entry of judgment is served on the defendant.

For most limited civil cases if no notice of entry of judgment was served on the defendant the deadline to file a notice of appeal is 90 days from the date that the judgment is entered by the clerk of the court.

California Rule of Court 8.104 governs the deadline for filing a notice of appeal in limited civil cases.

For most unlimited civil cases in which the clerk of the court or any party has served a notice of entry of judgment on the defendant the deadline to file a notice of appeal is 60 days from the date that the notice of entry of judgment is served on the defendant.

For most unlimited civil cases if no notice of entry of judgment was served on the defendant the deadline to file a notice of appeal is 190 days from the date that the judgment is entered by the clerk of the court.

Although the trial court has the power to stay enforcement of the judgment whether or not a notice of appeal has been filed the truth is that there are some judges who may only grant a stay of enforcement in the following situations:

The moving party had a judgment obtained against them through default and they have filed or will file a motion to vacate that judgment that shows valid grounds for vacating the judgment.

The moving party has already filed a notice of appeal or will file a notice of appeal and can show at least facially plausible grounds for appealing the judgment and the moving party can make a strong showing that they will suffer irreparable injury if execution of the judgment is not stayed.

The moving party should include a detailed declaration with specific facts and evidence detailing the irreparable harm they will suffer if a stay of execution is not granted and should also include any relevant documents as exhibits.

Possible grounds could include that the judgment was obtained by default and the moving party has filed or will file a motion to vacate the judgment, enforcement of the judgment will cause the sale of a key asset of significant value, would destroy an ongoing business or would precipitate insolvency or bankruptcy.

Attorneys or parties in California that would like to view a portion of a sample 17 page ex-parte application for of execution of judgment containing includes brief instructions, a memorandum of points and authorities, sample declaration, sample declaration regarding ex-parte notice and proposed order sold by the author can use the link shown below.

Ex-parte application for stay of execution of judgment in California

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

View over 300 sample legal documents for sale

You can view sample legal document packages by clicking the link shown below.

http://www.legaldocspro.com/products_main.aspx

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*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

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.

Federal Rule of Civil Procedure 4(d) request for waiver of service of summons

2015-03-14T05:46:00.001-07:00

A Federal Rule of Civil Procedure 4(d) request for waiver of service of summons is the topic of this blog post. Rule 4(d) of the Federal Rules of Civil Procedure imposes a duty on any defendant who is an individual that is not a minor or incompetent, a corporation or association to avoid the unnecessary expenses of serving the summons.

This blog post will discuss both the advantages and the disadvantages of serving a request for waiver of service of summons under Rule 4(d) which is also known as a notice of lawsuit and request for waiver of service of a summons and can be used in civil litigation in United States District Court.

A request under Rule 4(d) has some to both the plaintiff and the defendant being served with the use of a notice of lawsuit and request for waiver of service of a summons in that the plaintiff avoids the time and expense of issuing and serving the summons and complaint and the defendant is allowed 60 days after the request for a waiver is sent to respond to the summons and complaint if they are located within the United States of America. This is substantially longer than the 21 days allowed under Federal Rule of Civil Procedure 12(a)(1)(A)(i). And the defendant is still entitled to raise all defenses or objections to the lawsuit, the court’s jurisdiction, and the venue of the action.

However there are disadvantages to the use of a Rule 4(d) notice which are listed near the end of this blog post.

Rule 4(d) states that,

“(d) Waiving Service.

(1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must:

(A) be in writing and be addressed:

(i) to the individual defendant; or

(ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process;

(B) name the court where the complaint was filed;

(D) inform the defendant, using text prescribed in Form 5, of the consequences of waiving and not waiving service;

(E) state the date when the request is sent;

(F) give the defendant a reasonable time of at least 30 days after the request was sent—or at least 60 days if sent to the defendant outside any judicial district of the United States—to return the waiver; and

(G) be sent by first-class mail or other reliable means.

(2) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:

(A) the expenses later incurred in making service; and

(B) the reasonable expenses, including attorney's fees, of any motion required to collect those service expenses.

(3) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent—or until 90 days after it was sent to the defendant outside any judicial district of the United States.

(4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.

(5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.”

The main disadvantage to the plaintiff with the use of a notice of lawsuit and request for waiver of service of a summons is that the plaintiff assumes the risk that the defendant may not actually receive the notice and request for waiver or that they will not comply in signing and returning the waiver waiver.

The main disadvantage to the defendant being served is that they waive any objections that no summons was served, or that the service was defective in any way.

Attorneys or parties who would like to view or download a 5 page sample notice of lawsuit and request for waiver of service containing brief instructions as well as a sample waiver of the service of a summons containing all required statutory language created by the author can usse the link shown below.

Sample Rule4(d) Request for Waiver of Service of Summons

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

View over 300 sample legal documents for sale

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

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

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

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

Vacating a California arbitration award under Code of Civil Procedure section 1286.2

2015-03-14T01:49:00.000-07:00

Vacating a California arbitration award under Code of Civil Procedure section 1286.2 is the topic of this blog post. Code of Civil Procedure section 1286.2 is the statute that lists the grounds on which a California award of arbitrator may be vacated. These awards are also referred to as an award of arbitrator or by the technical name of arbitral award.

Anyone considering a petition to vacate a California arbitration award must file that petition within 100 days after the date a signed copy of the award is served on the petitioner as required by Code of Civil Procedure section 1288 or their petition will most likely be denied.

Vacating a California arbitration award is somewhat difficult unless the petitioner can make a sufficient showing that one of the grounds listed in Code of Civil Procedure section 1286.2 applies in their case.

Code of Civil Procedure §1286.2 states in pertinent part that,

“(a) Subject to Section 1286.4, the court shall vacate the award if the court determines any of the following:

(1) The award was procured by corruption, fraud or other undue means.

(2) There was corruption in any of the arbitrators.

(3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator.

(4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.

(5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title.

(6) An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision.”

California case law exists regarding the issue of vacating an arbitration award as several decisions of both the California Supreme Court and Courts of Appeal have discussed when a arbitration award may be vacated.

It is established that the scope of judicial review of arbitration awards is extremely narrow in both the trial and appellate courts. See Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11, 33.

However in a more recent case the California Supreme Court stated that the Legislature has provided for judicial review of arbitration awards in situations where there are serious problems affecting the fairness of arbitration process.

And the California Supreme Court stated in another case that in order to ensure the integrity of the arbitration process it is essential that the arbitrator must be neutral.

A fairly recent case from a California Court of Appeal stated that the arbitrator must give all of the parties to the dispute an adequate opportunity to present their evidence and arguments and if they fail to do so that may be grounds for vacating the award.

Other recent California Court of Appeal cases have stated that if an arbitrator fails to decide an issue submitted to them that this may constitute grounds for vacating the award and that courts may vacate an award where it violates a well-defined public policy.

However the party petitioning to vacate the award on the grounds of fraud has the burden of making a sufficient showing of fraud as another California Court of appeal case stated that the petitioner must show that they did not have the opportunity to rebut or discover and then reveal the alleged fraud at the arbitration hearing.

In certain cases the court may order a rehearing before new arbitrators as Code of Civil Procedure § 1287 states in pertinent part that, “If the award is vacated, the court may order a rehearing before new arbitrators.”

As mentioned earlier a petition to vacate an arbitration award should be considered in situations where the party can show sufficient facts and evidence to support one of the valid grounds and files a timely petition to vacate the award.

Attorneys or parties in California that would like to view a portion of a sample 14 page petition to vacate arbitration award containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and sample declaration sold by the author can use the link shown below.

Sample petition to vacate arbitration award in California

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

View over 300 sample legal documents for sale

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. 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 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

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

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

Vacating a judgment under Rule 60(b)(6) in Federal Court

2015-02-24T22:07:00.000-08:00

Vacating a judgment under Rule 60(b)(6) in Federal Court is the topic of this blog post. Rule 60(b)(6) of the Federal Rules of Civil Procedure (Rule 60) states that a Court can vacate a judgment for any other reason that justifies relief. Rule 9024 of the Federal Rules of Bankruptcy Procedure states that Rule 60 applies to proceedings in United States Bankruptcy Court so this motion can be filed in bankruptcy cases as well.

Vacating a judgment under Rule 60(b)(6) is much harder filing a motion under clauses 1-5 of Rule 60(b) because the Courts have ruled that this motion can only be granted in extraordinary circumstances to prevent a manifest injustice. If you have an extraordinary situation than this motion makes sense, particularly in situations where the facts of the case do not meet the requirements of clauses 1-5 of Rule 60(b) but extraordinary circumstances exist.

Rule 60 states in pertinent part that “(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (6) any other reason that justifies relief.”

And Rule 60 also states 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.”

The Ninth Circuit Court of Appeals as well as other Circuit Courts of Appeal have stated that there is no strict time limitation on filing a motion to vacate a judgment under clause (6) of Rule 60(b) although in my personal opinion any party should file their motion as soon as possible after they have knowledge that a default judgment has been entered against them as the motion must be made within a reasonable time and a motion filed under clause (6) is generally hard to obtain except in very unusual circumstances.

However the Ninth Circuit Court of Appeal has stated that Rule 60, like all the Federal Rules of Civil Procedure, “is to be liberally construed to effectuate the general purpose of seeing that cases are tried on the merits.” Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983) (internal citations omitted.)

See also Federal Rule of Civil Procedure 1, “The Federal Rules should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

Attorneys or parties in civil litigation in United States District Court who wish to view a portion of an 11 page sample motion to vacate judgment under Rule 60(b)(6) that includes 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.

Sample motion to vacate judgment under Rule 60(b)(6)

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

View over 300 sample legal documents for sale

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

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

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

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

DISCLAIMER:

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

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

Rule 60(b)(4) motion to vacate judgment in United States District Court

2015-02-17T06:52:00.001-08:00

http://www.legaldocspro.com/blog/motion-to-vacate-a-judgment-under-rule-60b4-in-united-states-district-court/

Code of Civil Procedure section 632 statement of decision in California divorce case

2015-02-15T03:08:00.001-08:00

A Code of Civil Procedure section 632 statement of decision in a California divorce case is the topic of this blog post. Code of Civil Procedure section 632 and Family Code section 210 authorize a request for a statement of decision in California divorce or other family law cases such as legal separation or nullity cases.

Requesting a statement of decision is an excellent idea in any contested divorce or other family law case in California but is particularly useful in situations when there are numerous issues such as child custody and visitation, child support, spousal support etc., that were decided at the trial.

Requesting a statement of decision allows the party to require the Court to state the legal reasoning for its decision on certain contested issues which in legal terminology are known as controverted issues. A statement of decision is extremely important in most if not all cases as failing to make a timely request for a statement of decision on all of the controverted issues in a case is almost always fatal to any possible appeal of the case as the reviewing court is required to presume that every fact essential to the judgment was proved and found by the trial court if no statement of decision has been requested.

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

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

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

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

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

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

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

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

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

Requesting a statement of decision is an excellent way for any party involved in contested divorce proceedings in California to require that the Court give a detailed explanation of the basis and reasoning behind its decision on the controverted issues.

Attorneys or parties in California who would like to view a portion of a sample 7 page request for statement of decision in a California divorce case that includes brief instructions as well as a sample proposal for content of statement decision and proof of service by mail sold by the author can use the link shown below.

Sample request for statement of decision in California divorce

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

View over 300 sample legal documents for sale

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

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

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

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

DISCLAIMER:

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

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

Code of Civil Procedure section 631.8 motion for judgment in a California eviction

2015-02-11T03:56:00.000-08:00

A Code of Civil Procedure section 631.8 motion for judgment in a California eviction is the topic of this blog post. A motion for judgment in a California eviction is authorized by Code of Civil Procedure sections 631.8 and 1177. A motion for judgment has a very important advantage compared to a motion for nonsuit in that in ruling on a motion for judgment the trial court is permitted to weigh the evidence and can also make factual findings based on the evidence the plaintiff or opposing party presented. The disadvantage of a motion for judgment is that it can only be used in a non-jury or bench trial.

Code of Civil Procedure § 631.8 states that,

“(a) After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision as provided in Sections 632 and 634, or may decline to render any judgment until the close of all the evidence. The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party. Such motion may also be made and granted as to any cross-complaint.

(b) If it appears that the evidence presented supports the granting of the motion as to some but not all the issues involved in the action, the court shall grant the motion as to those issues and the action shall proceed as to the issues remaining. Despite the granting of such a motion, no final judgment shall be entered prior to the termination of the action, but the final judgment in such action shall, in addition to any matters determined in the trial, award judgment as determined by the motion herein provided for.

(c) If the motion is granted, unless the court in its order for judgment otherwise specifies, such judgment operates as an adjudication upon the merits.”

A party may file a motion for judgment in a California eviction case as Code of Civil Procedure § 1177 states that, “Except as otherwise provided in this Chapter the provisions of Part II of this Code are applicable to, and constitute the rules of practice in the proceedings mentioned in this Chapter.”

A California Court of Appeal has ruled that a motion for judgment allows the trial court to dispense with the need for a party, usually but not always the defendant, to present evidence when, after weighing the evidence at the close of the plaintiff's case, the court is persuaded that the plaintiff has failed to sustain its burden of proof.

Another California Court of Appeal has ruled that while a motion for judgment is usually made by a defendant the same principles apply to a motion by the plaintiff at the close of the defendant's case.

As with a motion for nonsuit a judgment operates as an adjudication upon the merits unless the court in its order for judgment otherwise specifies. See Code of Civil Procedure section 631.8(c).

A defendant or other party prevailing on a motion for judgment is entitled to recover their costs. See Code of Civil Procedure section 1032(b).

Attorneys or parties in California who would like to view a portion of a sample 15 page motion for judgment that includes a memorandum of points and authorities, sample declaration and proposed order sold by the author can use the link shown below.

Sample motion for judgment in California eviction

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

View over 300 sample legal documents for sale

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

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

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

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

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

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

California postnuptial agreement

2015-02-06T07:13:00.000-08:00

A California postnuptial agreement is the topic of this blog post. Another name for a postnuptial agreement is an antenuptial agreement. This agreement is basically awritten contract executed by couples after they have gotten married or entered into a civil union and is designed to finalize the settlement of the affairs of the couple in the event that they separate or get divorced.

A postnuptial agreement is similar to a prenuptial agreement in that they generally include

provisions for the division of property and debts as well as spousal support if the couple gets divorced or separates from each other. The use of postnuptial agreements is becoming more common although they are not presently as widely used as prenuptial agreements.

The California law supporting the validity of a postnuptial agreement is Family Code § 1500, which states that, "The property rights of husband and wife prescribed by statute may be altered by a premarital agreement or other marital property agreement."

California Family Code § 1502 states in part that such agreements are to be "executed and acknowledged or proved in the manner that a grant of real property is required to be executed and acknowledged" if they are to be recorded in the office of the recorder. It is always good practice to have all parties to any written agreement, particularly a postnuptial agreement to have their signatures notarized.

Any postnuptial agreement must have all of the basic elements required for a valid contract such as:

Offer

Acceptance

Consideration

Mutual assent

Legality

Capacity

A postnuptial agreement in California should also meet the following requirements:

Be in writing

Must be executed voluntarily

Must be done with full and/or fair disclosure at the time of execution

Must not be unconscionable

Must be executed by both parties (not their attorneys) "in the manner required for a deed to be recorded", known as an acknowledgment, before a notary public

Any married couple or any couple who has entered into a civil union who have not previously entered into a prenuptial agreement should consider the use of a postnuptial agreement in order to finalize the settlement of their affairs in the event that they separate, get divorced or wish to dissolve their civil union.

Attorneys or parties in California who would like to view a portion of a 25 page sample postnuptial agreement containing brief instructions, two lists of property and financial obligations and two notary acknowledgments sold by the author can use the link shown below.

Sample postnuptial agreement for California

Attorneys or parties who would like to view portions of over 250 sample legal documents for California and Federal litigation sold by the author of this blog post can use the link shown below.

View over 250 sample legal documents for sale

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 255 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 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 sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

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

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

California prenuptial agreement

2015-02-04T20:36:00.000-08:00

A California prenuptial agreement is the topic of this blog post. A California prenuptial agreement is also known as a premarital agreement and is governed by Family Code sections 1600 through 1617.

The number of prenuptial agreements in California has increased dramatically over the past twenty years as a growing number of California residents want to have a binding agreement that will specify how community and separate property and debts will be dealt with along with other important marital rights such as the right to spousal support in the event that the marriage does not work out. One very important detail that everyone should be aware of is the fact that unless both parties were represented by independent counsel of their own choosing any waiver of spousal support in a prenuptial will be unenforceable pursuant to Family Code section 1612.

Parties who are contemplating entering into a prenuptial agreement in California should make sure that they strictly follow all of the statutory requirements as failure to do so will result in a Court finding the agreement unenforceable.

Family Code § 1612 states that,

“(a) Parties to a premarital agreement may contract with respect to all of the following:

(1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.

(2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.

(3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.

(4) The making of a will, trust, or other arrangement to carry out the provisions of the agreement.

(5) The ownership rights in and disposition of the death benefit from a life insurance policy.

(6) The choice of law governing the construction of the agreement.

(7) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

(b) The right of a child to support may not be adversely affected by a premarital agreement.

(c) Any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement. An otherwise unenforceable provision in a premarital agreement regarding spousal support may not become enforceable solely because the party against whom enforcement is sought was represented by independent counsel.”

It should be noted that even the fact that both parties have their own independent counsel that does not guarantee that a court will uphold a waiver of spousal support in a prenuptial agreement. Family Code § 1615(C)(2) states that both parties must have at least seven (7) calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed or the agreement may be considered unenforceable.

Family Code § 1615 should be carefully reviewed by anyone considering the use of a premarital agreement as it is very detailed as to the circumstances under which a prenuptial agreement may be held unenforceable.

Attorneys or parties in California who would like to view a portion of a 24 page prenuptial agreement for California that includes brief instructions, lists of property and financial obligations for both parties, all required statutory wording and two notary acknowledgments that is sold by the author can use the link shown below.

Sample prenuptial agreement for California

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

View over 250 sample legal documents for sale

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

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

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

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

DISCLAIMER:

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

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