Rule 56 motion for summary judgment by a plaintiff in United States District Court

A Rule 56 motion for summary judgment by a plaintiff in United States District Court is the topic of this blog post.   Rule 56 refers to Federal Rule of Civil Procedure 56 which states in pertinent part that summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P 56(a).

Any party moving for summary judgment under Rule 56 must file the motion no later than 30 days after the close of all discovery in the case unless a different time is specified by a local rule or specific order of the Court.

The moving party should give at least 31 calendar days notice of the motion unless a different time is specified by a local rule or specific order of the Judge hearing the case. The moving party should carefully review the local rules for their Court as well as standing orders for the Judge as many districts and even individual Judges have very specific rules and procedures that must be followed.

One United States District Court that has very specific local rules is the Central District of California where local rule 7-3 requires that the moving party must meet and confer with the opposing party in an attempt to resolve any issues before any motion is filed and local rule 56-1 has very specific requirements for the documents that must be included with the motion including a requirement that a Statement of Uncontroverted Facts and Conclusions of Law and proposed Judgment granting summary judgment must be served and filed with the motion.

Filing a Rule 56 summary judgment motion should be considered by any plaintiff who can show that their complaint clearly alleges sufficient facts to establish each and every required element of all causes of action contained in the complaint and that the answer filed by a defendant consists of nothing but generic “boilerplate” affirmative defenses which fail to state any facts sufficient to constitute affirmative defenses and that the discovery responses provided by defendant are also deficient and lacking in any specific facts or evidence.

The United States Supreme Court has stated that the moving party on a Rule 56 motion for summary judgment has the burden of demonstrating that there is no genuine issue of fact in dispute that requires a trial. Once the moving party has met their burden the party opposing the motion cannot just rely on any denials in their pleadings but instead they must set forth specific facts showing a genuine issue of fact in dispute that requires trial.

The Ninth Circuit Court of Appeals has stated that the opposing party cannot defeat a motion for summary judgment simply by relying on conclusory allegations that are not supported by any evidence. And they have also stated that an issue of fact alone is not sufficient reason to deny a motion for summary judgment unless there is a genuine issue of material fact that is capable of directly affecting the outcome of the case, and that the evidence must be substantial and not merely speculative.

Attorneys or parties who would like to view a portion of a 16 page sample motion for summary judgment in United States District Court containing brief instructions, a table of contents and table of authorities as well as a memorandum of points and authorities with citations to case law and statutory authority, statement of uncontroverted facts and conclusions of law, sample declaration, proposed judgment granting summary judgment and proof of service by mail sold by the author can use the link shown below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

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

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

DISCLAIMER:

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

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

 

Posted in Bankruptcy Court Adversary Proceedings, Bankruptcy Litigation, Federal civil litigation, Federal litigation | Tagged , , , , , | Leave a comment

Residential property security deposit in California

The requirements for a security deposit in California as the topic of this blog post. This post will briefly discuss some of the main security deposit requirements for residential property which are found in Civil Code section 1950.5 which governs a security deposit for a residential property in California.

Tenants in California who rent residential property are often unaware of the more important provisions relating to security deposits such as how much security deposit the landlord can require them to pay when they move in and if the landlord can call any portion of their security deposit nonrefundable.  Some landlords in California still attempt to collect a nonrefundable “cleaning deposit” when a tenant signs a lease even though that is prohibited by California law.

One of the more important provisions is found in Civil Code section 1950.5(c) which states in pertinent part that, “A landlord may not demand or receive security, however denominated, in an amount or value in excess of an amount equal to two months’ rent, in the case of unfurnished residential property, and an amount equal to three months’ rent, in the case of furnished residential property, in addition to any rent for the first month paid on or before initial occupancy. Thus a landlord cannot require that a tenant pay more than an amount equal to two months rent for an unfurnished unit and more than an amount equal to three months rent for a furnished rent.

Civil Code section 1940.5(g) provides that if the tenant has a waterbed the landlord is entitled to increase the security deposit in an amount equal to one-half of one month’s rent.

Another very important provision is found in Civil Code section 1950.5(m) which states that, “No lease or rental agreement may contain a provision characterizing any security as “nonrefundable.”

The landlord can only claim from the security deposit those amounts that are reasonably necessary such as:

The repair of damages to the premises, exclusive of ordinary wear and tear, caused by the tenant or by a guest or licensee of the tenant.

The cleaning of the premises upon termination of the tenancy necessary to return the unit to the same level of cleanliness it was in at the inception of the tenancy.

To remedy future defaults by the tenant in any obligation under the rental agreement to restore, replace, or return personal property or appurtenances, exclusive of ordinary wear and tear, if the security deposit is authorized to be applied thereto by the rental agreement.

The landlord cannot charge the tenant for any damages that occurred before the tenant moved in pursuant to Civil Code section 1950.5(e) which states that, “The landlord may claim of the security only those amounts as are reasonably necessary for the purposes specified in subdivision (b). The landlord may not assert a claim against the tenant or the security for damages to the premises or any defective conditions that preexisted the tenancy, for ordinary wear and tear or the effects thereof, whether the wear and tear preexisted the tenancy or occurred during the tenancy, or for the cumulative effects of ordinary wear and tear occurring during any one or more tenancies.”

Civil Code section 1950.5(g) which governs the disposition and return of the security deposit is quite detailed but briefly stated it requires that within 21 calendar days after the tenant has vacated the premises the landlord must personally deliver or mail to the tenant an itemized statement that details all the charges made against the security deposit as well as returning any remaining portion of the security deposit to the tenant.  The landlord must also includes copies of all relevant documents such as bills, invoices, etc. showing the charges that were incurred if the landlord or landlord’s employee did not do the work. If the landlord or landlord’s employee did do the work the statement must describe the work performed, the time spent and the reasonable hourly rate charged for the work.   The landlord does not have to provide copies or a detailed itemization if the deductions for repairs and cleaning together do not exceed $125.00.

A landlord may not make a bad faith claim or retain a security deposit in bad faith. If they do they may be subject to statutory damages of up to twice the amount of the security, in addition to actual damages and they will have the burden of proof as to the reasonableness of the amounts claimed.  See Civil Code section 1950.5(l).

A tenant can sue their former landlord in small claims court as long as their statutory and actual damages do not exceed the current limit of $10,000.00. See Civil Code section 1950.5(n).

Attorneys or parties in California that would like to view a sample security deposit dispute letter in Microsoft Word format created by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

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

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

DISCLAIMER:

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

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

Posted in California freelance paralegal, California legal topics, California unlawful detainer | Tagged , , , , , | Leave a comment

Vacating a judgment in California for attorney misconduct

Vacating a judgment in California for attorney misconduct is the topic of this blog post. Also discussed is using as an alternative ground that any default, dismissal, judgment or other order should be vacated pursuant to Code of Civil Procedure section 286.

Any party in California may request that any default, dismissal judgment or other order be vacated on the grounds that severe attorney abandonment and neglect amounted to positive misconduct and the default, dismissal, judgment or other order should be vacated on the grounds of extrinsic mistake under the inherent equity power of the Court.

Code of Civil Procedure § 286 may also be used as an alternative ground for relief as it states that, “When an attorney dies, or is removed or suspended, or ceases to act as such, a party to an action, for whom he was acting as attorney, must, before any further proceedings are had against him, be required by the adverse party, by written notice, to appoint another attorney, or to appear in person.”

At least one California Court of Appeal has stated that a failure to give the notice required by Code of Civil Procedure § 286 may be used as an alternative ground for relief in a case where there is a showing of positive misconduct by the attorney.

Positive misconduct has been found to exist in cases where an attorney failed to serve process, failed to appear at several pretrial conferences and failed to communicate with the client, the court and opposing counsel. Other cases where positive misconduct has been found include cases where an attorney failed to respond to discovery requests or to oppose a motion to dismiss for failure to respond to discovery, were suspended by the California State Bar and failed to oppose a motion resulting in a default judgment.

Several cases from the California Courts of Appeal have stated that positive misconduct by an attorney may entitle the client to relief from any default, dismissal, judgment or other proceeding so long as the client is relatively free from negligence. Relief may be denied if the client was also negligent. However several decisions have also stated that a client has the right to rely on the performance of their attorney and failing to check on the status of a case even for periods exceeding two years does not always constitute negligence on the part of the client.

One recent decision from a California Court of Appeal stated that where the conduct of the attorney amounts to abandonment the Court will consider factors such as the policy favoring a trial on the merits; the client’s own conduct; prejudice to defendant and the policy that innocent clients should not have to suffer from their attorneys’ gross negligence among others.

Several decisions of the California Supreme Court have stated that a trial court has an inherent equity power under which it may grant relief from a default, dismissal, judgment or other order

obtained through extrinsic fraud or mistake. Attorney misconduct in appropriate cases may constitute extrinsic mistake.

Attorneys or parties in California who would like to view a portion of a 14 page sample motion to vacate judgment in California on the grounds of attorney misconduct 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.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

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

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

DISCLAIMER:

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

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

 

 

Posted in California civil litigation, California Dissolution of Marriage, california divorce, California evictions, California law and motion, law and motion | Tagged , , , , , | Leave a comment

Opposing a petition to compel arbitration in California

Opposing a petition to compel arbitration in California is the topic of this blog post. This blog post will briefly discuss some of the common grounds for opposing a petition to compel arbitration. The opposition to the petition should be filed and served at least nine (9) court days before the hearing and should be served by personal delivery or overnight mail pursuant to Code of Civil Procedure section 1005 unless the court has ordered otherwise.

Anyone served with a petition to compel arbitration should first carefully review the petition and any supporting documents to determine what grounds for opposition exist.

One very powerful ground for opposition is that the alleged agreement to arbitrate should not be enforced as the law in California states that an agreement to arbitrate can be invalidated, “upon such grounds as exist for the revocation of any contract.” See Code of Civil Procedure § 1281.

Other common grounds for opposition include but are not necessarily limited to:

The arbitration agreement should not be enforced due to fraud or duress.

The arbitration agreement is unconscionable as it is one-sided and/or is an adhesion contract.

The moving party unreasonably delayed in seeking arbitration.

The moving party acted in bad faith.

The moving party took advantage of the judicial discovery procedures not available in arbitration.

California Code of Civil Procedure §1281.2 states, in relevant part:

”On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that:

(a) The right to compel arbitration has been waived by the petitioner; . . . “(Emphasis added.)

Many actions by a defendant can be considered to constitute a waiver of the right to arbitration and there are several cases from the California Supreme Court and Courts of Appeal discussing in detail the various types of actions. Those cases are included in the sample opposition which is described below.

Attorneys or parties who wish to view a portion of a 20 page sample opposition to compel arbitration containing brief instructions, a table of contents and table of authorities as well as 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.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

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

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

DISCLAIMER:

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

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

Posted in California civil litigation | Tagged , , , , | Leave a comment

Requesting relief from a waiver of a trial by jury in California

Requesting relief from a waiver of a trial by jury pursuant to Code of Civil Procedure section 631(g) in California is the topic of this blog post.  Attorneys or parties sometimes inadvertently fail to file a timely request for a jury trial or otherwise inadvertently waive the right to trial by jury in some way.

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

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

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

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

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

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

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

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

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

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

DISCLAIMER:

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

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

Posted in California civil litigation, California freelance paralegal, California law and motion, California legal topics, California unlawful detainer, Ex-parte application, law and motion | Tagged , , , , | Leave a comment