Consumers Legal Remedies Act in California

The Consumers Legal Remedies Act in California is the topic of this blog post.

The Consumers Legal Remedies Act in California is also known as the CLRA. The CLRA can be a very potent weapon that can be used by a California consumer against a business or service provider who is using unfair or deceptive trade practices.

The CLRA provides remedies for unfair or deceptive trade practices and is very detailed. In fact there are more than 20 separate categories of illegal practices listed in Civil Code § 1770. These include passing off goods or services as those of another, using deceptive representations or designations of geographic origin in connection with goods or services, and representing as original or new goods that have deteriorated unreasonably or are altered, reconditioned, reclaimed, used, or secondhand.

The CLRA does have some very specific requirements that must be followed. Before a lawsuit can be filed, the plaintiff must first give the defendant a chance to make things right.

Laws authorizing the Consumers Legal Remedies Act in California.

The Consumers Legal Remedies Act in California is found in Civil Code sections 1750 through 1784.

At least 30 days before filing suit under the CLRA, the plaintiff must give the potential defendant notice of the alleged violation and demand that he or she “correct, repair, replace or otherwise rectify” the prohibited practices. The notice must be in writing and sent by certified or registered mail, return receipt requested, to the place where the transaction occurred, or to the potential defendant’s principal place of business within California pursuant to Civil Code
§ 1782(a)(2).

Plaintiff must allege in the complaint that proper notice was given. If a plaintiff files an action without first sending the required notice, the claim can be dismissed. This defect cannot be cured by amendment. Failure to provide notice after litigation has started will not be effective, notice must be given in order to state a claim, failure to give notice before filing any complaint will result in a Court dismissing the case with prejudice.

Messages sent by email, fax, or standard mail are NOT sufficient, and the notice must also be sent to the place where the transaction occurred, or to the potential defendant’s principal place of business within California pursuant to pursuant to Civil Code § 1782 (a)(2).

The notice is intended to give the manufacturer or vendor sufficient notice of alleged defects to permit appropriate corrections or replacements, and to facilitate settlements of consumer actions wherever possible before a complaint is filed.

A defendant may establish good faith by introducing evidence of their attempts to comply with a consumer’s demand pursuant to Civil Code section 1782(3).

A defendant may avoid liability under the CLRA if they can prove that any alleged violation was not intentional; it resulted from a bona fide error; and they made an appropriate correction, repair, or replacement, or provided another remedy pursuant to Civil Code section 1784.

Sample demand letter under the Consumers Legal Remedies Act in California in Microsoft Word format.

Attorneys or parties in California who wish to view and download a sample demand letter to a business under the CLRA can see below.

 

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.

Freelance paralegal available for assistance with California and Federal litigation matters.

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.

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

If you would like to subscribe to his newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm

DISCLAIMER:

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

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

 

Motion to vacate a prenuptial agreement in California

A motion to vacate a prenuptial agreement in California is the topic of this blog post.

A motion to vacate a prenuptial agreement in California is filed by a party that wants to request that the court vacate a prenuptial agreement and declare it invalid and unenforceable.   The technical name for a prenuptial agreement is a premarital agreement.

There are very strict requirements that must be met for a prenuptial agreement in California to be enforceable. Therefore filing a motion to vacate a prenuptial agreement can make sense if you can show that the agreement did not meet the strict requirements or one of several other grounds.

Grounds for filing a motion to vacate a prenuptial agreement in California.

There are several grounds which can be used by someone seeking to invalidate a prenuptial agreement in California including that,

The moving party did not have independent legal counsel and/or did not properly waive that right;

The moving party did not have at least seven days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed;

The moving party was not fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written;

The moving party did not execute the agreement voluntarily as their consent was obtained as a result of duress, fraud, or undue influence, and

The agreement was unconscionable when it was executed and, before execution of the agreement, the moving party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party, did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided, and did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

Family Code section 1615 states that,

“(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:

(1) That party did not execute the agreement voluntarily.

(2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:

(A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.

(B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.

(C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

(b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:

(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.

(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.

(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.

(4) The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.

(5) Any other factors the court deems relevant.”

Any prenuptial agreement that was signed after January 1, 2002 is deemed to have been executed involuntarily unless the court finds that the party had independent legal counsel (or properly waived that right), waited at least seven days before signing the agreement, had legal capacity to enter into the agreement, and did not act under fraud, duress, or undue influence. Therefore, the party seeking to enforce the agreement bears the burden to prove all of these elements or the agreement will be invalidated. The court must find that the party did not act under duress, fraud, or undue influence, and that the parties had the capacity to enter into the agreement.

Inequality of bargaining power between the parties is another possible ground.

An inequality of bargaining power can be shown by the relative age and sophistication of the parties. A California appeals court has also considered a disparity in the parties’ income and their respective assets at the time they entered into a premarital agreement as an indication of an inequality of bargaining power.

Sample motion to vacate a prenuptial agreement in California for sale.

Attorneys or parties in California that would like to view a portion of a 12 page sample points and authorities in support of a request for order or notice of motion to vacate a prenuptial agreement in California containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and sample declaration sold by the author can see below.

 

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.

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

If you would like to subscribe to his newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm

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.

Demand for a partial satisfaction of judgment in California

A demand for a partial satisfaction of judgment in California is the topic of this blog post.

A demand for a partial satisfaction of judgment in California is used by a judgment debtor that has partially satisfied the judgment and the judgment creditor has failed to file a partial satisfaction of judgment.

Law authorizing demand for a partial satisfaction of judgment in California.

A demand for a partial satisfaction of judgment in California is authorized by Code of Civil Procedure section 724.110 which states that,

“(a)The judgment debtor or the owner of real or personal property subject to a judgment lien created under a money judgment may serve on the judgment creditor a demand in writing that the judgment creditor execute, acknowledge, and deliver an acknowledgment of partial satisfaction of judgment to the person who made the demand. Service shall be made personally or by mail. If the judgment has been partially satisfied, the judgment creditor shall comply with the demand not later than 15 days after actual receipt of the demand.

(b) If the judgment creditor does not comply with the demand within the time allowed, the judgment debtor or the owner of the real or personal property subject to a judgment lien created under the judgment may apply to the court on noticed motion for an order requiring the judgment creditor to comply with the demand. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail. If the court determines that the judgment has been partially satisfied and that the judgment creditor has not complied with the demand, the court shall make an order determining the amount of the partial satisfaction and may make an order requiring the judgment creditor to comply with the demand.”

Deadline to comply with demand for a partial satisfaction of judgment in California.

The judgment creditor must comply with a written demand for a partial satisfaction of judgment within 15 days of receiving the written demand.  If the judgment creditor fails to comply the judgment debtor can file a noticed motion under Code of Civil Procedure § 724.110(b) for an order requiring the judgment creditor to comply with the demand.

Although some judgment creditors do timely file a satisfaction of judgment there are some that do not. In those cases sending a written demand for a partial satisfaction of judgment will send a formal notification to the judgment creditor of their legal responsibility.

Sample demand for a partial satisfaction of judgment in California available in Microsoft Word format.

Attorneys or parties that would like to view a sample demand for a partial satisfaction of judgment in California in Microsoft Word format created by the author can see below.

 

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.

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

If you would like to subscribe to his newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm

DISCLAIMER:

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

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

 

 

 

Motion to compel satisfaction of judgment in California

A motion to compel satisfaction of judgment in California is the topic of this blog post.

A motion to compel satisfaction of judgment in California is used when a judgment debtor has satisfied a judgment in full, has served a written demand for full satisfaction of judgment on the judgment creditor, and the judgment creditor without just cause has refused to comply.

Law authorizing a motion to compel satisfaction of judgment in California.

A motion to compel satisfaction of judgment in California is authorized by Code of Civil Procedure section 724.050(d) which states that, “If the judgment creditor does not comply with the demand within the time allowed, the person making the demand may apply to the court on noticed motion for an order requiring the judgment creditor to comply with the demand. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail. If the court determines that the judgment has been satisfied and that the judgment creditor has not complied with the demand, the court shall either (1) order the judgment creditor to comply with the demand or (2) order the court clerk to enter satisfaction of the judgment.”

The judgment debtor may also be awarded actual and statutory damages pursuant to Code of Civil Procedure section 724.050(e) which states, “If the judgment has been satisfied and the judgment creditor fails without just cause to comply with the demand within the time allowed, the judgment creditor is liable to the person who made the demand for all damages sustained by reason of such failure and shall also forfeit one hundred dollars ($100) to such person. Liability under this subdivision may be determined in the proceedings on the motion pursuant to subdivision (d) or in an action.”

Note that actual damages could include higher interest rates that the judgment debtor is paying, the fact that they have been denied loans and other similar damages.  Damages to credit reputation can be recovered as long as they are can be substantiated.

The prevailing party on the motion can be awarded reasonable attorney’s fees under Code of Civil Procedure section 724.080 which states that, “In an action or proceeding maintained pursuant to this chapter, the court shall award reasonable attorney’s fees to the prevailing party.”

The party filing the motion to compel satisfaction of judgment should be sure to include all of the facts and evidence supporting their motion such as proof of payment such as cancelled check/cashiers check, etc., copy of their written demand as well as evidence supporting their requests for damages and reasonable attorney’s fees.

Sample motion to compel satisfaction of judgment in California for sale.

Attorneys or parties in California that would like to view a portion of a 15 page sample motion to compel satisfaction of judgment in California containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority,  sample declarations and proof of service sold by the author can see below.

 

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.

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

If you would like to subscribe to his newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm

DISCLAIMER:

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

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

 

 

 

 

 

Motion for directed verdict in a California eviction case

A motion for directed verdict in a California eviction case is the topic of this blog post.

A motion for directed verdict in a California eviction case can only be filed in cases involving a jury trial and is authorized by Code of Civil Procedure section 630 and Code of Civil Procedure section 1177 which 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 motion for directed verdict 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 substantial evidence to support the claim or defense of the party opposing the motion. However, there are some differences between the two motions which are:

A motion for directed verdict generally lies after all the parties have completed presentation of evidence in a jury trial. Nonsuit motions are usually made after the plaintiff’s evidence is concluded.

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

A motion for directed verdict in a California eviction 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.

Note that a motion for directed verdict 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 in an eviction case would be where the evidence is insufficient to sustain Plaintiff’s burden of proof on the issue whether the plaintiff has standing to sue as they do not hold valid title to the property due to an invalid foreclosure, whether the plaintiff can state a valid cause of action for unlawful detainer due to a defective three-day notice, etc.

Note that a motion for directed verdict may be brought even if a motion for nonsuit was previously denied by the court.

In ruling on a motion for directed verdict, the court determines only whether there is no evidence to support a verdict against the moving party. On a motion for directed verdict, the court’s decision will operate 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 that filing a motion for directed verdict is proper when there is no conflict in the evidence, and substantial evidence supports a verdict in favor of the moving party.

Sample motion for directed verdict in a California eviction for sale.

Attorneys or parties who would like to view a portion of a 14 page sample motion for directed verdict in a California eviction case 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.

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California eviction litigation document package

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.

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

If you would like to subscribe to his newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm

DISCLAIMER:

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

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

 

 

 

 

 

 

California and Federal litigation

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