Opposing a motion to vacate judgment under Rule 60(b)(1)

Opposing a motion to vacate judgment under Rule 60(b)(1) in United States District Court is the topic of this blog post. An opposition to the motion should 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).

Parties served with a motion to vacate under Rule 60(b)(1) (Rule 60) should carefully review the motion and all supporting documents to determine what grounds exist for an opposition.

Common grounds for opposition to a motion to vacate under Rule 60(b)(1) are:

The motion is untimely in that it is brought within a reasonable time as required by Rule 60 which part that,

“(c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

The moving party unreasonably delayed in filing the motion.

Culpable conduct by the moving party resulted in the judgment.

No meritorious defenses to the judgment or lawsuit are presented.

The opposing party would be prejudiced if the judgment were set aside.

Several 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 or judgment, diligence in seeking relief and a meritorious defense otherwise the Court has the discretion to deny the motion.

In a recent decision the Ninth Circuit Court of Appeal stated that Rule 60 does not provide relief for cases of ignorance, carelessness or inexcusable neglect. In another case the Ninth Circuit stated that even attorney negligence that would be considered malpractice does not usually warrant the granting of relief under Rule 60(b)(1), only conduct that is considered attorney misconduct.

Another Circuit Court of Appeal also stated that the ignorance or carelessness of an attorney does not warrant relief under Rule 60 nor does deliberate litigation strategy and choices regarding evidence.

Attorneys or parties who would like to view a portion of a 10 page sample opposition to motion to vacate judgment under Rule 60(b)(1) 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 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 freelance paralegal, Federal civil litigation, Federal litigation, federal rules of civil procedure, motion to vacate | Tagged , , , , | Leave a comment

Opposing a motion to vacate judgment under Rule 60(b)(2) in United States District Court

Opposing a motion to vacate judgment under Rule 60(b)(2) on the grounds of newly discovered evidence in United States District Court is the topic of this blog post. Any opposition to the motion should 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).

Parties served with a motion to vacate under Rule 60(b)(2) (“Rule 60”) should review the motion and all supporting documents closely to determine if grounds exist for an opposition. Common grounds for opposition are:

The motion is untimely in that it is brought later than one year after the entry of judgment or it is not brought within a reasonable time as required by Rule 60 which part that,

“ (c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

The moving party unreasonably delayed in filing the motion.

The newly discovered evidence was known or could have been discovered by the moving party before the trial.

The newly discovered evidence is merely cumulative, impeaching or not material.

The newly discovered evidence would not likely produce a different result if the judgment were set aside.

Numerous decisions of the Circuit Courts of Appeal including the Ninth Circuit have stated that the moving party must show that the newly discovered evidence was discovered after the trial, that they exercised diligence to discover the evidence, the evidence is not just cumulative or impeaching evidence, the evidence is material and that the evidence would most likely produce a different result if the judgment were set aside.

Several recent decisions of the Circuit Courts of Appeal have stated that impeachment evidence that is newly discovered does not support a motion to vacate under Rule 60 in most cases.

And several Circuit Courts of Appeal have also stated that a Rule 60(b)(2) motion for relief from judgment is subject to the same standard as a motion under Rule 59 for a new trial on the grounds of newly discovered evidence

Attorneys or parties who would like to view a portion of an 11 page sample opposition to motion to vacate judgment under Rule 60(b)(2) 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 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 freelance paralegal, Federal civil litigation, Federal litigation, federal rules of civil procedure, motion to vacate | Tagged , , , , , | Leave a comment

Right to jury trial in California civil case

The right to a jury trial in California is the topic of this blog post which discusses the jury trial right as it applies to a civil case. The right to a jury trial in all cases 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.” This blog post will discuss the right to a trial by jury in California civil cases.

Code of Civil Procedure section 631(a) states that, “The right to a trial by jury as declared by Section 16 of Article I of the California Constitution shall be preserved to the parties inviolate. In civil cases, a jury may only be waived pursuant to subdivision (f).”

Note however that the right to a jury trial in California only applies in legal, not equitable, actions. See Benach v. County of Los Angeles (2007) 149 Cal. App. 4th 836, 845-846. As a result all actions in equity are non-jury trials, and are subject to the procedures that are associated with a non-jury trial although the trial judge does retain the power to order that any issue be tried by a jury pursuant to Code of Civil Procedure section 592. Note that a judge sitting in equity must ultimately decide the equitable issues, treating any jury verdict on those issues as only advisory. See Posey v. Leavitt (1991) 229 Cal.App 3d 1236, 1244.

As stated above the right to a jury trial can only be waived pursuant to provisions contained in subdivision (f) which states that,

“A party waives trial by jury in any of the following ways:

(1) By failing to appear at the trial.

(2) By written consent filed with the clerk or judge.

(3) By oral consent, in open court, entered in the minutes.

(4) By failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation.

(5) By failing to timely pay the fee described in subdivision (b), unless another party on the same side of the case has paid that fee.

(6) By failing to deposit with the clerk or judge, at the beginning of the second and each succeeding day’s session, the sum provided in subdivision (e).”

Parties in California who wish a jury trial must deposit jury fees with the court at least 25 days before the initial date set for trial and at the beginning of the second and each succeeding day of trial. See Code of Civil Procedure § 631(d), (e). This rule does not apply to unlawful detainer actions which require the deposit of jury fees at least five days before the date set for trial pursuant to Code of Civil Procedure § 631(c)(1).

If these fees are not paid the jury trial right has been waived and this results in a non-jury trial. See Code of Civil Procedure § 631(f)(5), (6). Although the court has the discretion to allow a trial by jury even though there may have been a waiver pursuant to Code of Civil Procedure § 631(g). The author will discuss relief from a waiver of a jury trial in California in a later blog post.

Any party who wants to retain the right to a jury trial should file a timely demand for a jury trial as well as timely depositing the advance jury fees with the clerk of the court. Although some parties include the demand for a jury trial in their pleading the author has found that certain courts request that the demand for a jury trial be made in a separate document.

Attorneys or parties in California who would like to view a free sample demand for jury trial available for download in Word or PDF 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 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 legal topics | Tagged , , , , | Leave a comment

California Notice of Unlawful Detainer

A California Notice of Unlawful Detainer is the subject of this blog post. This notice of an unlawful detainer filing is issued by the court clerk and is required by the provisions of Code of Civil Procedure section 1161.2. The notice is required to be mailed to each defendant named in the action another copy addressed to all occupants must be mailed separately to the property address.

California tenants who receive this notice are often confused as to how they should respond. While nothing in this blog post should be considered legal advice the law clearly states that the notice does NOT constitute service of the summons and complaint. The tenant has no duty to respond unless and until they are properly served with a copy of the summons and complaint.

Code of Civil Procedure section 1161.2(c)(4) states in pertinent part that, “The notice shall be issued between 24 and 48 hours of the filing of the complaint, excluding weekends and holidays. One copy of the notice shall be addressed to “all occupants” and mailed separately to the subject premises. The notice shall not constitute service of the summons and complaint.” (Emphasis added).

A California tenant who receives one of these notices in the mail should be aware that they will be served with the summons and complaint within days in most cases. Intentionally evading service is never a good idea as that does not look good in Court. However that being said the author knows of no particular law or published case in California that states that any defendant is required to actively cooperate so that may be served. A tenant who simply comes and goes as they normally do and can prove this is complying with the statutes. In plain English a tenant does not have to alter their schedule to wait around to be served. They just need to be aware that they almost surely will be served with the summons and complaint very quickly.

Attorneys or parties in California who would like to view more information on a collection of over 20 sample legal documents for use by California tenants including an answer, demurrer, motion to quash service and more sold by the author for only $59.99 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 evictions, California freelance paralegal, California unlawful detainer | Tagged , , , , | Leave a comment

Request for change of venue under Code of Civil Procedure section 397(c)

Requesting a change of venue in California under Code of Civil Procedure section 397(c) is the topic of this blog post. The request is made by the filing of a noticed motion on the grounds that the convenience of witnesses and the ends of justice would be promoted by the change of venue.

A motion filed under Section 397(c) is very useful in appropriate situations due to the fact that it gives the court the inherent power to modify any venue choices made by the parties as to where the action should be tried. Plaintiff may in fact have the right to file wherever venue is considered proper under the statutes but the court still has the discretion to order a change of venue if trying the case locally would be seriously inconvenient to the witnesses and defeat the ends of justice. The court may also order a change of venue to another county if the court deems it appropriate.

A motion for change of venue filed under Code of Civil Procedure section 397(c) should not be filed until after an answer to the complaint has been filed. This is required on the grounds that the court needs to determine exactly what issues are raised by the complaint and the answer. It should noted that the motion should be filed within a reasonable period of time after the answer has been filed and that the term witnesses refers only to non-party witnesses unless a party is so extremely ill or feeble so that travel to a distant county would endanger his or her health. See Simonian v. Simonian (1950) 97 Cal.App.2d 68, 69.

The California Supreme Court has stated that what constitutes a “reasonable” time for filing a motion for change of venue under Code of Civil Procedure § 397 rests largely in the trial court’s discretion. See Cooney v. Cooney (1944) 25 Cal.2d 202, 208.

Code of Civil Procedure § 397 states in pertinent part that “The court may, on motion, change the place of trial in the following cases:

(c) When the convenience of witnesses and the ends of justice would be promoted by the change.”

A California Court of Appeal has stated that the convenience of witnesses can be shown by the fact that the residence of all of the witnesses is in the same county to which the transfer is requested. That same Court of Appeal also stated that the trial court in making a determination that the ends of justice will be promoted by a change of venue can rely not only on the direct facts set forth in the affidavits but can also rely on any reasonable and relevant inferences that arise therefrom.

The scope of a motion for change of venue under section 397 is broad as Section 397 applies to any action or proceeding within its terms . . . even actions under statutes (e.g., FEHA) giving plaintiff the broadest possible choice of venue. See Richfield Hotel Management, Inc. v. Sup.Ct. (Riddell) (1994) 22 Cal.App.4th 222, 225.

Attorneys or parties in California who would like to view a portion of a sample 10 page motion for change of venue under CCP section 397(c) 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 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 dissolution, California Dissolution of Marriage, california divorce, change of venue, law and motion | Tagged , , , , | Leave a comment