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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.

Adversary complaint under section 523(a)(2) of the Bankruptcy Code

2018-07-02T05:21:00-07:00

An adversary complaint under section 523(a)(2) of the Bankruptcy Code is the topic of this blog post.

An adversary complaint under section 523(a)(2) of the Bankruptcy Code is filed to request that the court determine that a specific debt cannot be discharged due to fraudulent representations.

An adversary complaint under section 523(a)(2) of the Bankruptcy Code is filed in United States Bankruptcy Court under the provisions of Title 11 U.S.C. § 523(a)(2).

An adversary complaint under section 523(a)(2) of the Bankruptcy Code must contain allegations that describe the fraud with particularity as required by Rule 9(b) of the Federal Rules of Civil Procedure which states in pertinent part that, "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake".

The Ninth Circuit Court of Appeals has ruled in several published cases that the particularity requirement of Rule 9(b) is a federally imposed requirement and that the court examines state law in determining whether the adversary complaint states a cause of action for fraud.

The particularity requirement is imposed on the grounds that fraud is a serious charge against another party.

This blog post will discuss the elements required by California law in order to state a cause of action for fraud.

The law is settled in California that four (4) elements be specifically pleaded in any cause of action for fraud. (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.

Whatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representations must be shown.

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

An action based on fraud may be brought more than three years after the fraud occurred if the plaintiff shows not only that he did not discover the facts but he could not with reasonable diligence have discovered them within that time. The complaint must set forth specifically (1) the facts of the time and manner of discovery; and (2) the circumstances which excuse the failure to have made an earlier discovery.

An adversary complaint under section 523(a)(2) of the Bankruptcy Code can also include other claims for relief such as a claim requesting a denial of a discharge under section 727 of the bankruptcy code.

Sample adversary complaint under section 523(a)(2) of the Bankruptcy Code.

Attorneys or parties who would like to view a portion of a sample 8 page adversary complaint under section 523(a)(2) of the Bankruptcy Code requesting that the bankruptcy court determine that a debt owed to them is nondischargeable due to fraud under section 523 of the bankruptcy code that also includes a request for denial of a discharge under section 727 of the bankruptcy code can see below.

Sample Adversary Complaint for Fraud in United States Bankruptcy Court by Stan Burman on Scribd

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

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Opposing a Rule 55(c) motion to vacate a default in United States District Court

2018-06-19T09:06:00-07:00

Opposing a Rule 55(c) motion to vacate a default in United States District Court is the topic of this blog post.

Opposing a Rule 55(c) motion to vacate a default in United States District Court requires that any opposition documents be served and filed at least seven (7) calendar days before the hearing unless a Local Rule or order of the Court states otherwise pursuant to Federal Rule of Civil Procedure 6(c)(2).

If you have been served with a Rule 55(c) motion to vacate default you should carefully review the motion and all supporting documents to determine what grounds exist for an opposition.

Common grounds for opposing a Rule 55(c) motion to vacate a default in United States District Court are that the moving party has failed to show good cause in that:

(1) Culpable conduct by the moving party resulted in the default;

(2) No meritorious defenses to the lawsuit are presented, and

(3) Plaintiffs would suffer prejudice if the default were vacated.

In a published decision the Ninth Circuit Court of Appeals has stated that Rule 55(c) permits the Court to set aside an entry of default only for good cause, and that the defaulting parties have the burden of proving good cause.

Several published decisions of the Circuit Courts of Appeal including but not limited to, the Ninth Circuit Court of Appeals have stated that the moving party must show good cause for the default, diligence in seeking relief and a meritorious defense otherwise the Court has the discretion to deny the motion.

The Ninth Circuit Court of Appeals has stated that in order to determine whether good cause exists, courts consider (1) whether the default is the result of the defaulting party's culpable conduct; (2) whether the defaulting party has a meritorious defense; or (3) whether reopening the default would prejudice the innocent party.

The Ninth Circuit Court of Appeals has also stated that the test for good cause is disjunctive, and the defaulting party must prove all three factors favor setting the default aside and if any one factor favors upholding the default, the Court need not set it aside.

Sample opposition for opposing a Rule 55(c) motion to vacate a default in United States District Court for sale.

Attorneys or parties who would like to view a portion of a 12 page sample opposition for opposing a Rule 55(c) motion to vacate a default 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.

Sample Opposition to Rule 55(c) Motion to Vacate Default in United States District Court by Stan Burman on Scribd

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

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DISCLAIMER:

Foreclosure defense in California

2018-04-20T08:00:01-07:00

Foreclosure defense in California is the topic of this blog post.

Foreclosure defense in California is complicated by the fact that California is a non-judicial foreclosure state which means that the great majority of foreclosures are not processed through the court system.

Foreclosure defense involves filing a lawsuit by the homeowner with an upcoming foreclosure sale date that wants to stop the foreclosure sale. An ex parte request for a temporary restraining order to stop a foreclosure sale by a trustee in California should be filed at the same time as the lawsuit. Both documents should be filed as soon as possible as waiting to file the request until several days before the sale date is not a good strategy unless you can have a very good explanation.

Common grounds used for foreclosure defense in California.

Common grounds used for foreclosure defense in California include:

Violations of the California Homeowner Bill of Rights such as:

Violating the provisions of Civil Code §§ 2923.5, 2923.6, 2924.18 by recording, or causing to be recorded, a notice of default without fully informing the homeowner of their opportunity to apply for a loan modification.

Violating the provisions of Civil Code §§ 2923.5, 2923.6, 2924.18 by recording, or causing to be recorded, a notice of default even though Plaintiffs had submitted a complete application for a loan modification which was still being considered. This is known as “dual tracking”.

Failing to comply with a condition precedent regarding their contractual authority to foreclose by failing to comply with paragraph 22 of the standard Fannie Mae/Freddie Mac Deed of Trust which requires the lender to provide notice before accelerating the payments due under the note specifying (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property.

Failing to comply with the requirements of a Consumer Financial Protection Bureau regulation found at 12 CFR 1024.41(f)(1)(i) by failing to wait until the homeowner was more than 120 days delinquent on mortgage payments before sending any notice to begin any judicial or non-judicial foreclosure process.

Failure to accurately state the amount of the balance due in the notice of default.

Any lawsuit filed to stop a foreclosure sale by a trustee in California should be verified and filed with an ex-parte application for a temporary restraining order to prevent the real property from being sold which includes a memorandum of points and authorities, an order to show cause for a preliminary injunction, a sample declaration of ex-parte notice and a proposed order.

Sample complaint for foreclosure defense in California for sale.

Attorneys or parties in California that would like to view a portion of a 35 page sample verified complaint to stop a foreclosure sale by a trustee in California for violations of the California Homeowners Bill of Rights, a violation of Civil Code section 2923.5, declaratory and injunctive relief, and accounting that also includes an ex-parte application for a temporary restraining order to prevent the real property from being sold including a memorandum of points and authorities with citations to case law and statutory authority, an order to show cause for a preliminary injunction, a sample declaration of ex-parte notice and a proposed order sold by the author can see below.

Sample California Complaint to Stop Foreclosure Sale by Trustee by Stan Burman on Scribd

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

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DISCLAIMER:

Child custody and visitation stipulation in California

2018-03-28T06:52:00-07:00

A child custody and visitation stipulation and order in California is the topic of this blog post.

A child custody and visitation stipulation and order in California can be used in situations where both parties to a divorce, or other family law proceeding have reached an agreement regarding custody and visitation of the minor children.

A child custody and visitation stipulation and order in California can be used to modify an existing order, or to stipulate to an initial custody order.

The advantages of entering into a child custody and visitation stipulation and order in California include that,

Both parties avoid the time and expense of having to appear in Court.

Both parties save money on attorney's fees.

The stipulation and order can be modified to suit the particular needs of their unique situation.

The stipulation and order is submitted to the Court along with a filing fee of approximately $20.00.

Sample child custody and visitation stipulation and order in California in Word format.

Attorneys or parties that would like to view a portion of a sample child custody and visitation stipulation and order in California sold by the author can see below.

Sample Custody and Visitation Stipulation for California by Stan Burman on Scribd

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

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DISCLAIMER:

Requesting entry of default in United States District Court

2018-01-18T20:40:00-08:00

Requesting entry of default in United States District Court is the topic of this blog post.

Requesting entry of default in United States District Court is authorized by Rule 55(a) of the Federal Rules of Civil Procedure which states that, “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.”

Requesting entry of default in United States District Court requires submitting the following documents:

An Application for Entry of Default signed by the Plaintiff or their attorney of record.

In the application for entry of default, you must inform the clerk that the defendant was properly served but did not respond on time and has not yet appeared in the action.

Declaration in Support of Application for Entry of Default.

In the declaration, you or your attorney of record must swear under penalty of perjury that the defendant was properly served and never appeared in the action. The proofs of service for each defendant must be attached to this declaration as proof that the defendant was properly served. The declaration must also state that the defendant is not a minor, an incompetent person, or in the military service.

Requesting entry of default in United States District Court should be done as soon as possible once the deadline for the defendant(s) to respond has expired. This is very important as once a default has been entered against a defendant by the clerk under Rule 55(a), the entry of default prohibits the defendant from filing an appearance in the lawsuit unless the defendant files a motion to vacate the default and has a good explanation for why they failed to respond on time.

Another reason for requesting entry of default in United States District Court as soon as possible is the fact that the court clerk will not automatically enter default after a defendant’s time to respond to a lawsuit has passed. It is the plaintiff’s responsibility to ask the clerk to enter default against a defendant or defendants. If the plaintiff fails to do so and the defendant appears in the case, even if the defendant files an answer or a motion well after the deadline to do so, the clerk cannot enter default and some judges will allow the defendant to proceed in the action.

Sample documents for requesting entry of default in United States District Court.

Attorneys or parties in civil litigation that would like to view or download a sample Rule 55(a) request for entry of default in United States District Court containing brief instructions, a sample declaration and proof of service sold by the author can use the link shown below.

Sample Request for Entry of Default Under Rule 55(a) in United States District Court by Stan Burman on Scribd

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

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DISCLAIMER:

Vacating a default in United States District Court

2018-01-17T05:13:00-08:00

Vacating a default in United States District Court is the topic of this blog post.

Vacating a default in United States District Court is required by a defendant when the clerk has entered a default, but no judgment has been entered yet.

Vacating a default in United States District Court requires that a motion to vacate the default be filed under Rule 55(c) of the Federal Rules of Civil Procedure which states that,

“The court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b).”

Vacating a default in United States District Court is easier than vacating a default judgment under Rule 60(b) as the Ninth Circuit Court of Appeals has stated in a published case that the standard of good cause for vacating an entry of default is the same as that for setting aside a default judgment under Rule 60(b), but the test for setting aside entry of default is less rigid and is more generous to the party in default.

The Ninth Circuit Court of Appeals has also stated in another published case that there are three factors to be considered by the Court when deciding whether to set aside a default: (1) whether the defendant’s culpable conduct led to the default; (2) whether the defendant has a meritorious defense; and (3) whether setting aside default would prejudice the plaintiff, and that the law does not favor defaults and any doubts should be decided in favor of the defaulting party.

In discussing the first factor of culpable conduct, the Ninth Circuit Court of Appeals has stated in a published case that even a negligent failure to respond may be excusable if the defaulting party offers a credible, good-faith explanation for the delay that does not show any intention to take advantage of the opposing party, interfere with judicial decision-making, or otherwise manipulate the legal process.

As for the second factor of a meritorious defense, the Ninth Circuit Court of Appeals has stated in a published case that a defense is considered meritorious if there is some possibility that the outcome of the suit after a full trial will be contrary to the result achieved by the default.

In discussing the third factor of prejudice to the plaintiff if the default is set aside the Ninth Circuit Court of Appeals has stated in published cases that prejudice is determined by whether a party will be hindered in pursuing its claim, and that the fact that a party may be denied a quick victory is not sufficient to deny relief from default judgment. Prejudice requires tangible harm such as loss of evidence, increased difficulties of discovery, or greater opportunity for fraud or collusion.

Sample motion for order vacating a default in United States District Court for sale.

Attorneys or parties that would like to view a portion of a sample 10 page motion for an order vacating a default in United States District Court under Rule 55(c) 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 use the link shown below.

Sample Motion to Vacate Default Under Rule 55(c) in United States District Court by Stan Burman on Scribd

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

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DISCLAIMER:

New meet and confer requirement under CCP section 439(a) in California

2018-01-01T05:12:00-08:00

The new meet and confer requirement under CCP section 439(a) in California is the topic of this blog post.

The new meet and confer requirement under CCP section 439(a) in California just became effective on January 1, 2018.

The new meet and confer requirement under CCP section 439(a) in California now imposes a meet and confer requirement before filing most motions for judgment on the pleadings against a complaint, cross-complaint or answer pursuant to the provisions of Code of Civil Procedure section 439(a). I wanted to share this with all of my blog readers as soon as possible. The meet and confer effort must be made at least five days before your responsive pleading is due.

However there are several situations where the meet and confer requirement does NOT apply which are (1) An action in which a party not represented by counsel is incarcerated in a local, state, or federal correctional institution.; (2) A proceeding in forcible entry, forcible detainer, or unlawful detainer; (3) A special motion brought pursuant to Section 425.16 and (4) A motion brought less than 30 days before trial.

Code of Civil Procedure § 439 states that,

“(a) Before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion for judgment on the pleadings against the amended pleading.

(1) As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to judgment and identify with legal support the basis of the claims. The party who filed the pleading shall provide legal support for its position that the pleading is not subject to judgment, or, in the alternative, how the pleading could be amended to cure any claims it is subject to judgment.

(2) The parties shall meet and confer at least five days before the date a motion for judgment on the pleadings is filed. If the parties are unable to meet and confer by that time, the moving party shall be granted an automatic 30-day extension of time within which to file a motion for judgment on the pleadings, by filing and serving, on or before the date a motion for judgment on the pleadings must be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the motion for judgment on the pleadings was previously filed, and the moving party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.

(3) The moving party shall file and serve with the motion for judgment on the pleadings a declaration stating either of the following:

(A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion for judgment on the pleadings, and that the parties did not reach an agreement resolving the claims raised by the motion for judgment on the pleadings.

(B) That the party who filed the pleading subject to the motion for judgment on the pleadings failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.

(4) A determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion for judgment on the pleadings.

(b) A party moving for judgment on a pleading that has been amended after a motion for judgment on the pleadings on an earlier version of the pleading was granted shall not move for judgment on any portion of the pleadings on grounds that could have been raised by a motion for judgment on the pleadings as to the earlier version of the pleading.

(c) (1) If a court grants a motion for judgment on the pleadings and grants leave to amend, the court may order a conference of the parties before an amended pleading, or a motion for judgment on an amended pleading, may be filed. If the conference is held, the court shall not preclude a party from filing a motion for judgment on the pleadings and the time to file a motion for judgment on the pleadings shall not begin until after the conference has concluded.

(2) This section does not prohibit the court from ordering a conference on its own motion at any time or prevent a party from requesting that the court order that a conference be held.

(d) This section does not apply to any of the following:

(1) An action in which a party not represented by counsel is incarcerated in a local, state, or federal correctional institution.

(2) A proceeding in forcible entry, forcible detainer, or unlawful detainer.

(3) A special motion brought pursuant to Section 425.16.

(4) A motion brought less than 30 days before trial.

(e) (1) In response to a motion for judgment on the pleadings and before the case is at issue, a pleading shall not be amended more than three times, absent an offer to the trial court of additional facts to be pleaded that, if pleaded, would result in a reasonable possibility that the defect can be cured. The three-amendment limit does not include an amendment made without leave of the court pursuant to Section 472, if the amendment is made before a motion for judgments on the pleadings as to the original pleading is filed.

(2) This section does not affect the rights of a party to amend its pleading or respond to an amended pleading after the case is at issue.

(f) This section does not affect appellate review or the rights of a party pursuant to Section 430.80.

(g) If a motion for judgment on the pleadings is denied and the pleading is not further amended, the moving party preserves its right to appeal after final judgment without filing a further motion for judgment on the pleadings.

(h) This section shall remain in effect only until January 1, 2021, and as of that date is repealed, unless a later enacted statute that is enacted before January 1, 2021, deletes or extends that date.”

Code of Civil Procedure section 439 was enacted by the California legislature in the hopes that it would reduce the number of motions for judgment on the pleadings by imposing a requirement to meet and confer before most motions for judgment on the pleadings can be filed. It will expire on January 1, 2021, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2021, deletes or extends that date.

The advantage of the new meet and confer requirement under CCP section 439(a) in California is that if you meet and confer as required and the other party or attorney does not respond, or will not meet and confer in good faith you can file and serve a declaration on or before the date that your responsive pleading is due detailing your efforts and that will give you an automatic 30-day extension of time to file a responsive pleading.

Sample declaration of compliance with the new meet and confer requirement under CCP section 439(a) in California.

Attorneys or parties in California that would like to view or download a FREE sample declaration regarding compliance with the meet and confer requirements of Code of Civil Procedure § 439(a) in Word format which includes brief instructions, sample wording and a proof of service by mail can see below.

Sample Declaration of Compliance With Meet and Confer Requirement for Judgment on the Pleadings in Californ... by Stan Burman on Scribd

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

Follow Stan Burman on Twitter at:

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DISCLAIMER:

Meet and confer requirement under CCP section 435.5(a) in California

2018-01-01T03:04:00-08:00

The new meet and confer requirement under CCP section 435.5(a) in California is the topic of this blog post.

The new meet and confer requirement under CCP section 435.5(a) in California just became effective on January 1, 2018.

California law now imposes a meet and confer requirement before filing most motions to strike a complaint, cross-complaint or answer pursuant to the provisions of Code of Civil Procedure section 435.5(a).

I wanted to share this with all of my blog readers as soon as possible. The meet and confer effort must be made at least five days before your responsive pleading is due.

However there are several situations where the meet and confer requirement does NOT apply which are

(1) An action in which a party not represented by counsel is incarcerated in a local, state, or federal correctional institution.;
(2) A proceeding in forcible entry, forcible detainer, or unlawful detainer;
(3) A special motion brought pursuant to Section 425.16 and (4) A motion brought less than 30 days before trial.

Code of Civil Procedure section 435.5 which just became effective on January 1, 2018 details the meet and confer requirement for a motion to strike in California and states that,

“(a) Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading.

(1) As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency.

(2) The parties shall meet and confer at least five days before the date a motion to strike must be filed. If the parties are unable to meet and confer at least five days before the date the motion to strike must be filed, the moving party shall be granted an automatic 30-day extension of time within which to file a motion to strike, by filing and serving, on or before the date a motion to strike must be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the motion to strike was previously due, and the moving party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.

(3) The moving party shall file and serve with the motion to strike a declaration stating either of the following:

(A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion to strike, and that the parties did not reach an agreement resolving the objections raised by the motion to strike.

(B) That the party who filed the pleading subject to the motion to strike failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.

(4) A determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion to strike.

(b) A party moving to strike a pleading that has been amended after a motion to strike an earlier version of the pleading was granted shall not move to strike any portion of the pleadings on grounds that could have been raised by a motion to strike as to the earlier version of the pleading.

(c) (1) If a court grants a motion to strike and grants leave to amend, the court may order a conference of the parties before an amended pleading, or a motion to strike an amended pleading, may be filed. If the conference is held, the court shall not preclude a party from filing a motion to strike and the time to file a motion to strike shall not begin until after the conference has concluded.

(2) This section does not prohibit the court from ordering a conference on its own motion at any time or prevent a party from requesting that the court order that a conference be held.

(d) This section does not apply to any of the following:

(1) An action in which a party not represented by counsel is incarcerated in a local, state, or federal correctional institution.

(2) A proceeding in forcible entry, forcible detainer, or unlawful detainer.

(3) A special motion brought pursuant to Section 425.16.

(4) A motion brought less than 30 days before trial.

(e) (1) In response to a motion to strike and before the case is at issue, a pleading shall not be amended more than three times, absent an offer to the trial court of additional facts to be pleaded that, if pleaded, would result in a reasonable possibility that the defect can be cured. The three-amendment limit does not include an amendment made without leave of the court pursuant to Section 472, if the amendment is made before a motion to strike as to the original pleading is filed.

(2) This section does not affect the rights of a party to amend its pleading or respond to an amended pleading after the case is at issue.

(f) This section does not affect appellate review or the rights of a party pursuant to Section 430.80.

(g) If a motion to strike is denied and the pleading is not further amended, the moving party preserves its right to appeal after final judgment without filing a further motion to strike.

Code of Civil Procedure section 435.5 was enacted by the California legislature in the hopes that it would reduce the number of motions to strike by imposing a requirement to meet and confer before most motions to strike can be filed. It will expire on January 1, 2021, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2021, deletes or extends that date.

The advantages of the meet and confer requirement specified in Code of Civil Procedure section 435.5(a) is that if you meet and confer as required and the other party or attorney does not respond, or will not meet and confer in good faith you can file and serve a declaration on or before the date that your responsive pleading is due detailing your efforts and that will give you an automatic 30-day extension of time to file a responsive pleading.

Sample declaration of compliance with meet and confer requirement under CCP section 435.5(a) in California.

Attorneys or parties in California that would like to view or download a FREE sample declaration regarding compliance with the meet and confer requirements of Code of Civil Procedure § 435.5(a) in Microsoft Word format which includes brief instructions, sample wording and a proof of service by mail can see below.

Sample Declaration of Compliance With Meet and Confer Requirement for Motion to Strike in California by Stan Burman on Scribd

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

Follow Stan Burman on Twitter at:

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DISCLAIMER:

Judgment notwithstanding the verdict in a California unlawful detainer (eviction) case

2017-10-28T10:30:00-07:00

Judgment notwithstanding the verdict in a California unlawful detainer (eviction) case is the topic of this blog post.

Judgment notwithstanding the verdict (JNOV) in a California unlawful detainer (eviction) case is authorized under Code of Civil Procedure section 629 which states in pertinent part that,

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

A request for judgment notwithstanding the verdict in a California eviction case is authorized 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 request for judgment notwithstanding the verdict while it is more limited in scope than a motion for new trial is an even more powerful tool if used in the right situations. Since a JNOV challenges the legal sufficiency of the evidence at trial prevailing on the motion results in a new and different judgment in the moving party's favor.

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

Deadline to file for Judgment notwithstanding the verdict (JNOV) in a California unlawful detainer (eviction) case.

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

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

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

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

Sample request for judgment notwithstanding the verdict in a California eviction case for sale.

Attorneys and parties in California who would like to view a portion of a sample motion for judgment notwithstanding the verdict (JNOV) in a California unlawful detainer (eviction) case containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, proposed order and proof of service by mail sold by the author can see below.

Sample motion for judgment notwithstanding the verdict for California by Stan Burman on Scribd

Over 300 sample legal documents for California and Federal litigation for sale.

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DISCLAIMER:

Directed verdict motion in California

2017-10-28T10:00:00-07:00

A directed verdict motion in California is the topic of this blog post.

A directed verdict motion in California can only be used in a case involving a jury trial.

Statutory authorization for a directed verdict motion in California.

The statutory authorization for a a directed verdict motion in California is found in Code of Civil Procedure section 630 which states that,

“(a) Unless the court specified an earlier time for making a motion for directed verdict, after all parties have completed the presentation of all of their evidence in a trial by jury, any party may, without waiving his or her right to trial by jury in the event the motion is not granted, move for an order directing entry of a verdict in its favor.

(b) If it appears that the evidence presented supports the granting of the motion as to some, but not all, of the issues involved in the action, the court shall grant the motion as to those issues and the action shall proceed on any remaining issues. 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 addition to any matter determined in the trial, shall reflect the verdict ordered by the court as determined by the motion for directed verdict.

(c) If the motion is granted, unless the court in its order directing entry of the verdict specifies otherwise, it shall operate as an adjudication upon the merits.

(d) In actions which arise out of an injury to a person or property, when a motion for directed verdict was granted on the basis that a defendant was without fault, no other defendant during trial, over plaintiff’s objection, shall attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion.

(e) The order of the court granting the motion for directed verdict is effective without any assent of the jury.

(f) When the jury for any reason has been discharged without having rendered a verdict, the court on its own motion or upon motion of a party, notice of which was given within 10 days after discharge of the jury, may order judgment to be entered in favor of a party whenever a motion for directed verdict for that party should have been granted had a previous motion been made. Except as otherwise provided in Section 12a, the power of the court to act under the provisions of this section shall expire 30 days after the day upon which the jury was discharged, and if judgment has not been ordered within that time the effect shall be the denial of any motion for judgment without further order of the court.”

A directed verdict motion is very similar to a motion for nonsuit in that the motion essentially operates as a demurrer to the evidence presented by the opposing party. Either motion will be granted if there is no evidence of sufficient substantiality to support the claim or defense of the party opposing the motion. However, there are some differences between the two motions which are:

A directed verdict motion in California is generally used after all the parties have completed presentation of evidence in a jury trial although it may be made at any time before the case is submitted to the jury. Nonsuit motions are usually made after the plaintiff's evidence is concluded.

Although typically filed by a defendant a directed verdict motion in California may also be brought by a plaintiff.

A directed verdict motion in California is used in order to achieve a judgment as a matter of law. The judgment requested would be in favor of one (or more) parties on all (or some) of the issues in that particular case. The motion is filed after all parties present their evidence and before the matter goes to the jury. The granting of the motion may dismiss a party or decide some (or all) of the issues before the matter goes to a jury. After entry of any judgment in accordance with a directed verdict, the prevailing party can recover its costs of suit pursuant to Code of Civil Procedure § 1038.

However a directed verdict motion in California is only appropriate when it is clear from the evidence presented, that the party against whom the motion is made, typically a plaintiff or cross-complainant, cannot meet its burden of proof of elements of its claim against the moving party.

An appropriate example would be a case where there are multiple defendants and the plaintiff is unable to offer sufficient evidence of the identity of a particular party. Another appropriate example would be when one party believes that the opposing party has made a concession that mandates a result in the first party’s favor.

Note that a directed verdict motion in California can be filed even if a motion for nonsuit was previously denied by the court.

In ruling on a directed verdict motion in California, the court determines only whether there is no evidence to support a verdict against the moving party. On a directed verdict motion in California, the court's decision operates as an adjudication on the merits unless otherwise ordered by the court, however the jury must still render a verdict before the decision on the motion for directed verdict can be incorporated in the final judgment.

A California Court of Appeal has stated in a published decision that filing a directed verdict motion is proper when there is no conflict in the evidence, and substantial evidence supports a verdict in favor of the moving party.

Sample directed verdict motion in California for sale.

Attorneys or parties in California who would like to view a portion of a 14 page sample directed verdict motion in California including a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proposed order sold by the author can see below.

Sample California Motion for Directed Verdict under Code of Civil Procedure section 630 by Stan Burman on Scribd

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

2017-10-28T09:30:00-07:00

A Federal Rule of Civil Procedure 4(d) request for waiver of service of summons is the topic of this blog post.

A Federal Rule of Civil Procedure 4(d) request for waiver of service of summons is also known as a notice of lawsuit and request for waiver of service of a summons and is used in civil litigation in United States District Court.

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 a Federal Rule of Civil Procedure 4(d) request for waiver of service of summons in United States District Court.

A Federal Rule of Civil Procedure 4(d) request for waiver of service of summons has some advantages 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). 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 Federal Rule of Civil Procedure 4(d) request for waiver of service of summons 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 Federal Rule of Civil Procedure 4(d) request for waiver of service of 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.

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.

Sample Federal Rule of Civil Procedure 4(d) request for waiver of service of summons in Word format.

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 see below.

Sample Notice of Lawsuit and Request for Waiver of Service of Summons by Stan Burman on Scribd

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https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=FAM&division=9.&title=&part=1.&chapter=5.&article=

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Request for an expedited child support order in California

2017-10-28T09:00:02-07:00

A request for an expedited child support order in California is the topic of this blog post.

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

Statutes authorizing a request for an expedited child support order in California.

The relevant statutes for filing a request for an expedited child support order in California are found in Chapter 5 of the California Family Code, sections 3620 through 3634.

To view the entire text of Family Code sections 3620 through 3634 use the link shown below.

Official forms for request for an expedited child support order in California.

The forms used are official Judicial Council forms FL-380 through FL-382.

Click the link shown below to view the official forms.

http://www.courts.ca.gov/forms.htm?filter=MO

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

Family Code § 3622 states that,

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

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

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

(d) A proposed expedited child support order.”

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

Over 300 sample legal documents for California and Federal litigation for sale.

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Introducing the California legal document collection

2017-10-28T07:53:00-07:00

The California legal document collection with over 300 sample documents.

LegalDocsPro now offers the California legal document collection at a huge discount. It contains over 300 sample legal documents for California litigation including ALL of the documents in the California discovery, divorce, eviction and law and motion document packages that have a list price of well over $2,800.00 if purchased individually but you can purchase the entire collection for only $349.99 which is a discount of over 80% off!

If you are involved in California litigation and would like to save a LOT of money the California legal document collection is for you.

Attorneys or parties in California that would like to view more information on the California legal document collection including a complete list of documents can see below.

California Legal Document Collection for Sale by Stan Burman on Scribd

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DISCLAIMER:

Opposing a forum non conveniens motion in California

2017-10-28T06:30:00-07:00

Opposing a forum non conveniens motion in California is the topic of this blog post.

A forum non conveniens motion in California is also known as a motion to dismiss on the grounds of inconvenient forum.

I want to stress that any documents opposing a forum non conveniens motion in California should be filed and served no later than nine (9) court days before the hearing and served by personal service or overnight delivery pursuant to Code of Civil Procedure section 1005 unless the Court has ordered otherwise.

The motion is made on the grounds that the forum state, namely California, is an inconvenient forum in which to have the case heard.

Burden of proof on forum non conveniens motion in California.

The good news for any party opposing a forum non conveniens motion in California is that the moving defendant(s) have the burden of proof. The entire motion should be reviewed along with all supporting attachments to determine if the moving party has met their burden.

For example several years ago I drafted an opposition to a forum non conveniens motion in California in which the moving defendants provided NO sworn declarations with the motion. Not surprisingly the motion was denied.

And the United States Supreme Court has stated that the plaintiff’s choice of forum should only be disturbed if the balance weighs strongly in favor of the defendants.

In California the doctrine is typically applied where none of the parties is a California resident, and where the cause of action arose outside of the forum state. The doctrine is typically applied to litigation where all of the parties are out-of-state residents and where the cause of action arose outside the forum state. The moving party must also establish that a suitable alternative forum exists.

Courts in California have utilized a two prong approach in ruling on a forum non conveniens motion in California: (1) Defendants must establish that a suitable alternative forum exists, and (2) The Court must balance the private interests of the parties and the public interest in maintaining an action in California. Stangvik v. Shiley, Inc., (1991) 54 Cal.3d 744, 751.

Code of Civil Procedure section 410.40 states that “Any person may maintain an action or proceeding in a court of this state against a foreign corporation or nonresident person where the action or proceeding arises out of or relates to any contract, agreement, or undertaking for which a choice of California law has been made in whole or in part by the parties thereto and which (a) is a contract, agreement, or undertaking, contingent or otherwise, relating to a transaction involving in the aggregate not less than one million dollars ($1,000,000), and (b) contains a provision or provisions under which the foreign corporation or nonresident agrees to submit to the jurisdiction of the courts of this state. This section applies to contracts, agreements, and undertakings entered into before, on, or after its effective date; it shall be fully retroactive. Contracts, agreements, and undertakings selecting California law entered into before the effective date of this section shall be valid, enforceable, and effective as if this section had been in effect on the date they were entered into; and actions and proceedings commencing in a court of this state before the effective date of this section may be maintained as if this section were in effect on the date they were commenced”.

This means that if an agreement signed by both parties, even if both parties are nonresident parties, includes what is known as a mandatory forum selection clause, the Court will most likely deny the motion unless the moving party can show that applying the clause would be unfair or unreasonable. The fact that the moving party might be inconvenienced or suffer additional expenses is not sufficient.

Sample opposition for opposing forum non conveniens motion in California for sale.

Attorneys or parties in California that would like to view a portion of a 15 page sample opposition to a forum non conveniens motion in California containing 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 Dismiss on Grounds of Inconvenient Forum by Stan Burman on Scribd

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http://www.courts.ca.gov/documents/dv120.pdf

DISCLAIMER:

Defense strategy for domestic violence restraining orders in California

2017-10-28T05:44:00-07:00

Defense strategy for domestic violence restraining orders in California is the topic of this blog post.

If someone has filed a request for a restraining order against you in California you must utilize an effective restraining order defense strategy. I cannot stress this enough because if a restraining order is entered against you that can have very serious consequences that can and will negatively impact your life, both in the present and in the future.

For example many permanent restraining orders in California have a typical duration of 3 years and in some cases even longer, and if you violate a restraining order, or even are alleged to have violated a restraining order you are subject to arrest.

Other negative consequences that can result from having a restraining order entered against you is that the restraining order can limit or even temporarily eliminate your rights under the Second Amendment to the United States Constitution to own or possesses any guns, firearms or even ammunition. In many cases it can also have negative consequences that can negatively impact your employment and sometimes your reputation in the community as well.

There are frequently challenges that arise that can complicate utilizing an effective restraining order defense strategy such as a situation where all that you have are the word of the victim against your own word where there are no pictures or witnesses to support your side of the story.

It is in situations like this that proper preparation and defense strategy is extremely important as that can enable you to properly challenge the issuance of a restraining order and in some situations possibly convince the court that one is not necessary. Due to the serious consequences of a restraining order you are strongly advised to seek an experienced attorney who has knowledge with these types of legal issues.

The first essential element for any defense strategy against a request for a restraining order must be to carefully review and study the law in order to understand the elements required for the particular type of restraining order that is being sought.

In the State of California for example, there are several different types of restraining orders such as civil harassment, domestic violence restraining orders, restraining orders involving elder abuse, workplace violence, emergency protective orders, and criminal protective orders.

Proper research of the law regarding the particular type of restraining order that is being sought will allow you to determine who has the authority to issue them, the burden of proof required in order to obtain the restraining order, the duration of the restraining order, and most important of all, what elements are required in order to obtain them.

The second essential element for any restraining order defense strategy is to carefully review the allegations made in order to determine if those allegations do or not apply to each element required for the particular order of protection being requested.

One example that is fairly common would be the issuance of a temporary restraining order in California based on an allegation of domestic violence in that case the burden of proof is extremely low, a reasonableness of abuse or possible abuse will be enough.

I want to point out that even meeting that lower burden of proof only entitles the requesting party to a restraining order that lasts only until an evidentiary hearing can be held to determine if a longer protective order such as a permanent order should be issued.

In order to obtain a domestic violence restraining order in California with a longer duration will require a higher burden of proof known as a finding of a preponderance of the evidence. A preponderance of the evidence means that the party that has the most evidence supporting their position will prevail. Many judges would agree that where it can be shown “it is more likely than not” that the elements necessitating a restraining order are met, that a restraining order must be issued by law.

In order to obtain any long-term restraining order in California based on domestic violence the protected party will need to show both a relationship and abuse. The elements of abuse for domestic violence are detailed in California Family Law Code § 6300 et seq.

The third essential element for any restraining order defense strategy is for the defending party or their attorney to persuade the court that the allegations asserted by the other party do not fit the definition of abuse.

In some cases a declaration will be filed by the protected party that is exaggerated or consists mostly of vague generalizations with no specific facts provided. In these situations a good argument can be made that the other party has failed to provide any specific details of circumstances and is therefore not credible because of the lack of details.

For instance if the declaration alleges that the petitioner has been harassed numerous times a defense strategy would be to request that the petitioner identify each and every instance of harassment and whether the communication was not proper meaning a communication that served no legitimate interest. The burden of proof is on the petitioner requesting the restraining order to prove each and every element required under the law. The duty of the defending party is to attack the credibility of the petitioner.

If you do not have the money for an attorney but still want to file a response so that you can give your side of the story to the Court you can download Judicial Council Form DV120-Response to Request for Domestic Violence Restraining Order by clicking the link below.

Sample opposition to request for domestic violence restraining order in California for sale.

Attorneys or parties who would like to view a portion of a sample points and authorities in support of a response to a request for a domestic violence restraining order in California containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and sample declaration can see below.

Sample Opposition to Request for Domestic Violence Restraining Order in California by Stan Burman on Scribd

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Requesting costs and attorney fees under Rule 4

2017-10-21T06:30:00-07:00

Requesting costs and attorney fees under Rule 4 is the topic of this blog post.

Requesting costs and attorney fees under Rule 4 in United States District Court is authorized pursuant to the provisions of Rule 4(d)(2) of the Federal Rules of Civil Procedure on the grounds that the defendant failed to waive service of the summons and complaint and deliberately evaded service.

In addition to providing the plaintiff with an entitlement to an award of service expenses, Rule 4(d)(2)(B) requires that the costs of obtaining the expenses, including reasonable attorney fees, also be awarded. The 1993 Advisory Committee Notes explained the need for this provision:

"In the absence of such a provision, the purpose of the rule would be frustrated by the cost of its enforcement, which is likely to be high in relation to the small benefit secured by the plaintiff.”

Rule 4(d)(2) of the Federal Rules of Civil Procedure requires a court to impose both the expenses of service and the costs of counsel in seeking those expenses, including a reasonable attorney fee, when the defendant fails to execute and return a waiver of service when requested:

“(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.”

Requesting costs and attorney fees under Rule 4 can be done at any time once the plaintiff can meet their burden of showing:

The defendant failed to waive service of the summons and deliberately evaded service;

The defendant failed to pay the expenses incurred in making service;

Plaintiff can substantiate their costs incurred in attempting to serve, or actually serving, the defendant, and

Plaintiff can substantiate their attorney fees incurred in filing the motion.

Several published decisions from United States District Courts have stated that Requesting costs and attorney fees under Rule 4 is not premature even if it is filed before the end of the case. Other published decisions have stated that any order can set a deadline for payment, and that sanctions can be ordered if the payment is not made on time.

Sample motion requesting costs and attorney fees under Rule 4 in United States District Court for sale.

Attorneys or parties that would like to view a portion of a 13 page sample motion requesting costs and attorney fees under Rule 4 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 sold by the author can see below.

Sample Motion for Costs and Attorney's Fees Under Rule 4 by Stan Burman on Scribd

Over 300 sample legal documents for California and Federal litigation for sale.

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Lack of capacity to sue as grounds for a special demurrer in California

2017-10-16T07:56:00-07:00

Lack of capacity to sue as grounds for a special demurrer in California is the topic of this blog post.

Specially demurring in California for lack of capacity to sue is different from filing a general demurrer for lack of standing in that capacity is the right to come into Court, and standing is the right to relief in Court.

California law is settled that capacity to sue is a technical objection that is strictly construed and which must be properly raised in a timely manner or the objection of lack of capacity may be waived.

A California Court of Appeal has stated in a published decision that the reasoning behind the rule that a party must have the capacity to sue is so that whatever judgment is rendered in a case should be binding on the parties involved, and thus will effectively resolve the litigation.

The Court of Appeal also stated that lack of capacity is not a jurisdictional defect, and must be properly raised or the objection may be waived.

Lack of capacity to sue as grounds for a special demurrer in California is used in situations where:

(1) Plaintiff is a California Corporation or Limited Liability Company that has been suspended for nonpayment of the franchise tax and lacks the capacity to sue or defend pursuant to Revenue & Taxation Code § 23301;

(2) Plaintiff is a California Corporation that has been suspended for failure to file the biennial statement required by Corporations Code § 1502;

(3) Plaintiff is a foreign corporation or limited liability company that has failed to obtain a “certificate of qualification” from the California Secretary of State as required by Corporations Code § 2105 and therefore may not “maintain any action or proceeding commenced prior to compliance with Section 2105” upon intrastate business as specified in Corporations Code § 2203(c), and

(4) Plaintiff is a foreign corporation or limited liability company that has been suspended in its home state for nonpayment of franchise taxes.

Law authorizing lack of capacity to sue as grounds for a special demurrer in California.

Specially demurring for lack of capacity to sue in California is authorized by Code of Civil Procedure section 430.10 which states, in pertinent part: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in section 430.30, to the pleading on any one or more of the following grounds... (b) The person who filed the pleading does not have the legal capacity to sue.”

In order to properly raise lack of capacity to sue as grounds for a special demurrer in California the lack of capacity must appear on the face of the complaint or from matters subject to judicial notice such as corporate or limited liability records from the California Secretary of State.

The objection of lack of capacity to sue can be raised as an affirmative defense in the answer if the lack of capacity does not appear on the face of the complaint or from matters subject to judicial notice.

The California Supreme Court has stated that a demurrer may challenge the legal sufficiency of an opponent's pleading based on defects that appear on the face of the pleading under attack and/or from matters outside the pleading that are judicially noticeable.

Meet and confer requirement before raising lack of capacity to sue as grounds for a special demurer in California.

Before filing any demurer to a complaint or cross-complaint in California the moving party must comply with the requirements of Code of Civil Procedure section 430.41.

Code of Civil Procedure § 430.41 states in pertinent part that,

“(a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.

(1) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.

(2) The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.

(3) The demurring party shall file and serve with the demurrer a declaration stating either of the following:

(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.

(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.

(d) This section does not apply to the following civil actions:

(1) An action in which a party not represented by counsel is incarcerated in a local, state, or federal correctional institution.

(2) A proceeding in forcible entry, forcible detainer, or unlawful detainer..” (Emphasis added).

Sample special demurrer for lack of capacity in California for sale.

Attorneys or parties in California that would like to view a portion of a 20 page sample special demurrer for lack of capacity in California containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample request for judicial notice, sample declaration regarding compliance with Code of Civil Procedure section 430.41 and proof of service sold by the author can see below.

Sample Special Demurrer for Lack of Capacity in California by Stan Burman on Scribd

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Compelling further responses to document requests in United States District Court

2017-10-16T07:43:00-07:00

Compelling further responses to document requests in United States District Court is the topic of this blog post.

A motion for an order compelling further responses to document requests in United States District Court is filed by one party when the opposing party has failed to provide any meaningful responses to the requests for documents, or has interposed boilerplate or nuisance objections.

A motion for an order compelling further responses to document requests in United States District Court is authorized under the provisions of Rule 37 of the Federal Rules of Civil Procedure.

Rule 37 of the Federal Rules of Civil Procedure states in pertinent part that,

“(a) Motion for an Order Compelling Disclosure or Discovery.

(1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

(2) Appropriate Court. A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty must be made in the court where the discovery is or will be taken.

(3) Specific Motions.

… (B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:

(iv) a party fails to produce documents or fails to respond that inspection will be permitted—or fails to permit inspection—as requested under Rule 34.”

There is a meet and confer requirement that must be met before filing a motion for an order compelling further responses to document requests in United States District Court as Rule 37 requires the movant to include a certification that the movant has "in good faith conferred or attempted to confer" with the party resisting discovery before seeking judicial intervention.

The party filing a motion may request sanctions under Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure 37(a)(5) which governs motions to compel and the payment of expenses. Rule 37(a)(5)(A) states that "[i]f the motion is granted . . . the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, . . . to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees."

The Advisory Committee Notes discussing Rule 37(a) emphasize that "expenses should ordinarily be awarded unless a court finds that the losing party acted justifiably in carrying this point to court." Id. Advisory Comm. Notes, 1970 Amend. This provision "presses the court to address itself to abusive [discovery] practices." Id.

Sample motion for an order compelling further responses to document requests in United States District Court for sale.

Attorneys or parties that would like to view a portion of a 16 page sample motion for an order compelling further responses to document requests 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 sold by the author can see below.

Sample Motion to Compel Further Responses to Document Requests in United States District Court by Stan Burman on Scribd

Over 300 sample legal documents for California and Federal litigation for sale.

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Code of Civil Procedure section 473.5 motion to vacate a California divorce judgment

2017-10-13T22:19:00-07:00

A Code of Civil Procedure section 473.5 motion to vacate a California divorce judgment is the topic of this blog post.

A Code of Civil Procedure section 473.5 motion to vacate a California divorce judgment is filed using the grounds of lack of actual notice in time to defend the action.

Advantage of filing a Code of Civil Procedure section 473.5 motion to vacate a California divorce judgment.

The time limit for filing a Code of Civil Procedure section 473.5 motion to vacate a California divorce judgment is substantially longer than the six months allowed by section 473.

California Code of Civil Procedure § 473.5 states in pertinent part that: "When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of : (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.", and "Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action."

Family Code § 210 states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

There are many reasons that someone may not have received actual notice of a lawsuit, including the fact that substitute service may have been used at an address at which that person no longer lives, someone may have forgotten to give the defendant the summons and complaint, etc.

The statutory provisions for substituted service must be strictly complied with, and the statutory conditions upon which such service depends will be strictly construed. This means that if substituted service has been used and the procedures were not strictly followed, then the Court will be much more likely to grant the motion to vacate.

And the substituted service must be made at the address where the defendant currently lives, even service made at a close relative’s house can be ineffective.

A plaintiff has to first attempt to personally serve a defendant with the summons and complaint before attempting substituted service or any other form of what is called "constructive service" including service by publication.

Requirements in order to win a Code of Civil Procedure section 473.5 motion to vacate a California divorce judgment.

In order to qualify for relief from default and/or judgment under Section 473.5 the moving party must show that they: (1) timely moved the Court for relief from default and/or judgment, (2) did not receive actual notice of the lawsuit in time to defend the action, (3) make a sufficient showing that their lack of actual notice was not due to avoidance of service or inexcusable neglect. Although not required they should provide a copy of their proposed pleading along with their motion as the proposed pleading should be on file with the Court before the hearing on the motion.

Numerous decisions of the California Supreme Court have stated that the law favors disposing of cases on their merits, and that any doubts must be resolved in favor of the party seeking relief from default. The California Supreme Court has also stated that when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default.

Sample Code of Civil Procedure section 473.5 motion to vacate a California divorce judgment for sale.

Attorneys or parties in California who would like to view a portion of a 9 page sample Code of Civil Procedure section 473.5 motion to vacate a California divorce judgment can see below a sample motion complete with a memorandum of points and authorities with full citations to case law and statutory authority and a sample declaration that is sold by the author.

Sample Motion to Vacate California Divorce Judgment Under CCP Section 473.5 by Stan Burman on Scribd

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Compelling further responses to interrogatories in United States District Court

2017-10-10T08:00:01-07:00

Compelling further responses to interrogatories in United States District Court is the topic of this blog post.

A motion for an order compelling further responses to interrogatories in United States District Court is filed when one party has served written interrogatories on the opposing party, and the opposing party has failed to serve any meaningful responses to written interrogatories, or has interposed boilerplate objections.

Statutory authorization for a motion for an order compelling further responses to interrogatories in United States District Court.

A motion for an order compelling further responses to interrogatories in United States District Court is authorized under the provisions of Rule 37 of the Federal Rules of Civil Procedure.

Rule 37 of the Federal Rules of Civil Procedure states in pertinent part that,

“(a) Motion for an Order Compelling Disclosure or Discovery.

(3) Specific Motions.

… (B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:

(iii) a party fails to answer an interrogatory submitted under Rule 33..

(4) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.”

Several published decisions have stated that when an interrogatory legitimately requests factual support, it is incumbent upon the responding party to provide an answer with relevant, supporting facts, and that the grounds for objecting to an interrogatory must be stated with specificity.

Meet and confer requirement before filing a motion for an order compelling further responses to interrogatories in United States District Court.

There is a meet and confer requirement that must be met before filing a motion for an order compelling further responses to interrogatories in United States District Court as Rule 37 requires the movant to include a certification that the movant has "in good faith conferred or attempted to confer" with the party resisting discovery before seeking judicial intervention.

Sample motion for an order compelling further responses to interrogatories in United States District Court for sale.

Attorneys or parties that would like to view a portion of a 15 page sample motion for an order compelling further responses to interrogatories 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 sold by the author can see below.

Sample Motion to Compel Further Responses to Interrogatories in United States District Court by Stan Burman on Scribd

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Compelling responses to requests for documents in United States District Court

2017-10-10T07:30:00-07:00

Compelling responses to requests for documents in United States District Court is the topic of this blog post.

A motion for an order compelling responses to requests for documents in United States District Court is filed when one party has served written requests for documents on the opposing party, and the opposing party has failed to serve any responses.

A motion for an order compelling responses to requests for documents in United States District Court is authorized under the provisions of Rule 37 of the Federal Rules of Civil Procedure.

Rule 37 of the Federal Rules of Civil Procedure states in pertinent part that,

“(a) Motion for an Order Compelling Disclosure or Discovery.

(3) Specific Motions.

… (B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:

(iv) a party fails to produce documents or fails to respond that inspection will be permitted—or fails to permit inspection—as requested under Rule 34.”

Meet and confer requirement for a motion for an order compelling responses to requests for documents in United States District Court.

There is a meet and confer requirement that must be met before filing a motion for an order compelling responses to requests for documents in United States District Court as Rule 37 requires the movant to include a certification that the movant has "in good faith conferred or attempted to confer" with the party resisting discovery before seeking judicial intervention.

Sample motion for order compelling responses to requests for documents in United States District Court for sale.

Attorneys or parties that would like to view a portion of a 13 page sample motion for an order compelling responses to requests for documents 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 sold by the author can see below.

Sample Motion to Compel Responses to Requests for Documents in United States District Court by Stan Burman on Scribd

Over 300 sample legal documents for California and Federal litigation for sale.

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DISCLAIMER:

Compelling responses to interrogatories in United States District Court

2017-10-09T10:00:01-07:00

Compelling responses to interrogatories in United States District Court is the topic of this blog post.

A motion for an order compelling responses to interrogatories in United States District Court is filed when one party has served written interrogatories on the opposing party, and the opposing party has failed to serve any responses.

Statutory authorization for compelling responses to interrogatories in United States District Court.

Compelling responses to interrogatories in United States District Court is authorized under the provisions of Rule 37 of the Federal Rules of Civil Procedure.

Rule 37 of the Federal Rules of Civil Procedure states in pertinent part that,

“(a) Motion for an Order Compelling Disclosure or Discovery.

(3) Specific Motions.

… (B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:

(iii) a party fails to answer an interrogatory submitted under Rule 33..”

Meet and confer requirement before filing a motion for an order compelling responses to interrogatories in United States District Court.

There is a meet and confer requirement that must be met before filing a motion for an order compelling responses to interrogatories in United States District Court as Rule 37 requires the movant to include a certification that the movant has "in good faith conferred or attempted to confer" with the party resisting discovery before seeking judicial intervention.

Sample motion for order compelling responses to interrogatories in United States District Court for sale.

Attorneys or parties that would like to view a portion of a 13 page sample motion for an order compelling responses to interrogatories 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 sold by the author can see below.

Over 300 sample legal documents for California and Federal litigation for sale.

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Stopping a foreclosure sale in California

2017-10-09T09:00:01-07:00

Stopping a foreclosure sale in California is the topic of this blog post.

Stopping a foreclosure sale in California requires filing a complaint as well as requesting a temporary restraining order enjoining the foreclosure sale. This must be filed by any homeowners in California with an upcoming foreclosure sale date that want to stop the foreclosure sale.

The great majority of foreclosures in California are not processed through the court system due to the fact that California is a non-judicial foreclosure state

Stopping a foreclosure sale in California requires filing your request for a temporary restraining order to stop a foreclosure sale as soon as possible. Waiting to file your request until the foreclosure sale is only several days away is not a good strategy unless you have a very good explanation for your delay.

Common grounds for stopping a foreclosure sale in California.

Common grounds for stopping a foreclosure sale in California include:

A complaint to stop a foreclosure sale by a trustee in California can be filed on one of several grounds including:

Violations of the California Homeowner Bill of Rights such as:

Failing to accurately state the amount of the balance due in the notice of default.

Any complaint or request for a temporary restraining order stopping a foreclosure sale in California should be verified and filed with an ex-parte application for a temporary restraining order to prevent the real property from being sold which includes a memorandum of points and authorities, an order to show cause for a preliminary injunction, a sample declaration of ex-parte notice and a proposed order.

Sample complaint for stopping a foreclosure sale in California for sale.

Attorneys or parties in California that would like to view a portion of a 35 page sample verified complaint for stopping a foreclosure sale in California for violations of the California Homeowners Bill of Rights, a violation of Civil Code section 2923.5 declaratory and injunctive relief, and accounting that also includes an ex-parte application for a temporary restraining order to prevent the real property from being sold including a memorandum of points and authorities with citations to case law and statutory authority, an order to show cause for a preliminary injunction, a sample declaration of ex-parte notice and a proposed order sold by the author can see below.

Sample California Complaint to Stop Foreclosure Sale by Trustee by Stan Burman on Scribd

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Code of Civil Procedure section 128.5 request for sanctions in California

2017-07-10T09:30:00-07:00

A Code of Civil Procedure section 128.5 request for sanctions in California is the topic of this blog post.

A Code of Civil Procedure section 128.5 request for sanctions in California is filed on the grounds that another party has engaged in bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay such as filing numerous frivolous motions or complaints.

Code of Civil Procedure § 128.5 states in pertinent part that,

“(a) A trial court may order a party, the party’s attorney, or both to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3.

(b) For purposes of this section:

(1) “Actions or tactics” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on an opposing party does not constitute “actions or tactics” for purposes of this section.

(2) “Frivolous” means totally and completely without merit or for the sole purpose of harassing an opposing party.

(c) Expenses pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers or, on the court’s own motion, after notice and opportunity to be heard. An order imposing expenses shall be in writing and shall recite in detail the conduct or circumstances justifying the order.”

Advantages of a Code of Civil Procedure section 128.5 request for sanctions.

A very important advantage of a Code of Civil Procedure section 128.5 request for sanctions in California is the fact that a California Court of Appeal has stated in a recently published decision that a party requesting sanctions under Code of Civil Procedure § 128.5 is not required to comply with the safe harbor provisions found in Code of Civil Procedure § 128.7.

Another California Court of Appeal stated in a published decision that a sanctions award under Code of Civil Procedure section 128.5 can be based on the entire pattern of conduct of a party over the course of the litigation.

Elements required for a Code of Civil Procedure section 128.5 request for sanctions in California.

A published decision from a California Court of Appeal has stated that the following elements must be shown before a Court can find an action is frivolous or in bad faith. Those elements are that:

The action must be determined to be without merit.

The action is prosecuted for an improper motive, including for purposes of harassment or delay.

The action is without merit as any reasonable attorney would agree that the action is totally and completely without merit.

And numerous published decisions have stated that reasonable expenses under Code of Civil Procedure § 128.5 are not just limited to the attorney’s fees incurred in filing a motion for sanctions.

At least two published decisions from California Courts of Appeal have stated that sanctions fees may be awarded under Code of Civil Procedure § 128.5 to an attorney who represents themselves, or a non-attorney individual who represents themselves.

Sample Code of Civil Procedure section 128.5 request for sanctions in California for sale.

Attorneys or parties in California that would like to view a portion of a 13 page sample Code of Civil Procedure section 128.5 request for sanctions in California 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 use the link shown below.

Sample Motion for Sanctions Under Code of Civil Procedure section 128.5 in California by Stan Burman on Scribd

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

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

For licensed attorneys and law firms that need 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.

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Civil Code section 1788.61 motion to vacate a judgment in California

2017-06-26T09:00:00-07:00

A Civil Code section 1788.61 motion to vacate a judgment in California is the topic of this blog post.

A Civil Code section 1788.61 motion to vacate a judgment in California is an excellent method that certain Defendants in California can use to fight back against debt buyers.

California residents now have a very useful tool with which to defend against lawsuits filed by debt buyers who typically purchase charged-off credit card or other debts for pennies on the dollar.

There have been many cases, both in California and in other states, where debt buyers have purchased charge-off accounts without bothering to get even basic account information, such as the credit contract, from the seller of the debt. This resulted in some debtors being at the mercy of unscrupulous debt buyers who rarely if ever provided debtors with accurate information about previous payments or prior interest charges. Many debt buyers also obtained default judgments through the questionable use of what is known as “substituted service.”

Advantage of a Civil Code section 1788.61 motion to vacate a judgment in California.

A Civil Code section 1788.61 motion to vacate a judgment in California has a very important advantage over motions to vacate filed under other code sections as the deadline to file the motion is much longer.

Limitations imposed on a Civil Code section 1788.61 motion to vacate a judgment in California.

However a Civil Code section 1788.61 in California motion to vacate a judgment can only be filed in situations where:

Plaintiff is a debt buyer, and

The judgment was taken against the Defendant due to lack of actual notice in time to defend the action and the lack of actual notice was not caused by Defendant’s avoidance of service or inexcusable neglect, and the default or judgment was entered on or after January 1, 2010, or

The judgment was taken against the Defendant due to identity theft and the Defendant has attached either a copy of a Federal Trade Commission Identity Theft Victim’s Complaint and Affidavit or a copy of a police report filed by Defendant alleging that he or she is the victim of an identity theft crime, including, but not limited to, a violation of Section 530.5 of the Penal Code, for the specific debt associated with the judgment to the motion, or

The judgment was taken against the Defendant due to a case of mistaken identity such as a situation where the judgment should have been entered against someone else that shares the name of the Defendant.

Deadline to file a Civil Code section 1788.61 motion to vacate a judgment in California.

The deadline to file a Civil Code section 1788.61motion to vacate a judgment in California is within six (6) years after the entry of the default or judgment, or within 180 days of the first actual notice of the action, whichever is earlier.

However if the judgment was entered as a result of either identity theft or mistaken identity it does not matter how long ago the default or judgment was entered as long as the motion is filed within 180 days of the first actual notice of the action, whichever is earlier.

Civil Code § 1788.61 states that,

“(a) (1) Notwithstanding Section 473.5 of the Code of Civil Procedure, if service of a summons has not resulted in actual notice to a person in time to defend an action brought by a debt buyer and a default or default judgment has been entered against the person in the action, the person may serve and file a notice of motion and motion to set aside the default or default judgment and for leave to defend the action.

(2) Except as provided in paragraph (3), the notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of:

(A) Six years after entry of the default or default judgment against the person.

(B) One hundred eighty days of the first actual notice of the action.

(3) (A) Notwithstanding paragraph (2), in the case of identity theft or mistaken identity, the notice of motion shall be served and filed within a reasonable time, but in no event exceeding 180 days of the first actual notice of the action.

(B) (i) In the case of identity theft, the person alleging that he or she is a victim of identity theft shall provide the court with either a copy of a Federal Trade Commission Identity Theft Victim’s Complaint and Affidavit or a copy of a police report filed by the person alleging that he or she is the victim of an identity theft crime, including, but not limited to, a violation of Section 530.5 of the Penal Code, for the specific debt associated with the judgment.

(ii) In the case of mistaken identity, the moving party shall provide relevant information or documentation to support the claim that he or she is not the party named in the judgment or is not the person who incurred or owes the debt.

(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by Section 1005 of the Code of Civil Procedure, and it shall be accompanied by an affidavit stating under oath that the person’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The person shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. Either party may introduce, and the court may consider, evidence in support of its motion or opposition, including evidence relating to the process server who appears on the proof of service of the summons and complaint.

(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that the person’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, the court may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action. If the validity of the judgment is not challenged, the court may select an appropriate remedy other than setting aside the default or default judgment.

(d) This section shall apply to a default or default judgment entered on or after January 1, 2010, except in the case of identity theft or mistaken identity, in which case this section shall apply regardless of the date of the default or default judgment.

(e) This section shall not limit the equitable authority of the court or other available remedies under law.”

Sample Civil Code section 1788.61 motion to vacate a judgment in California for sale.

Attorneys or parties in California that would like to view a portion of a sample 15 page Civil Code section 1788.61 motion to vacate a judgment in California 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 use the link shown below.

Sample Motion to Vacate Judgment Under Civil Code Section 1788.61 in California by Stan Burman on Scribd

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

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

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Voluntary dismissal notice in United States District Court

2017-06-06T09:00:00-07:00

A voluntary dismissal notice in United States District Court is the topic of this blog post.

A voluntary dismissal notice in United States District Court is filed by a plaintiff who wishes to dismiss their case before a defendant has filed an answer or motion for summary judgment.

A voluntary dismissal notice in United States District Court is authorized by Rule 41 of the Federal Rules of Civil Procedure which states in pertinent part that,

“(a) Voluntary Dismissal.

(1) By the Plaintiff.

(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:

(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or

(ii) a stipulation of dismissal signed by all parties who have appeared.

(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.”

Deadline to file a voluntary dismissal notice in United States District Court.

It should be noted that a voluntary dismissal notice in United States District Court must be filed before the defendant serves either an answer or a motion for summary judgment. Once the defendant has served either an answer or a motion for summary judgment the plaintiff must file a motion for dismissal under Rule 41(a)(2) of the Federal Rules of Civil Procedure.

Sample voluntary dismissal notice in United States District Court.

Attorneys or parties that would like to view or download a FREE voluntary dismissal notice in United States District Court created by the author can see below.

Sample Notice of Voluntary Dismissal Under Rule 41 in United States District Court by Stan Burman on Scribd

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

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

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