Order for service of divorce summons by posting and mailing

Order for service of summons by posting and mailing in a dissolution (divorce) case in California is the topic of this blog post. An indigent petitioner who cannot locate the respondent in a divorce proceeding in California may obtain an order from the Court pursuant to Code of Civil Procedure section 413.30 allowing for service of the summons and petition by posting in the Courthouse and by mailing a copy of the summons and petition to the last known address of the respondent.

These types of applications are filed on a regular basis in larger counties. For example when the author was last at the Lamoreaux Justice Center in Orange County the notice board was directly in front of the clerk’s office on the seventh floor where divorce and other family law paperwork is filed.

In order to obtain an order for posting and mailing the petitioner must make an adequate showing to the Court that they have diligently attempted to locate the respondent and have been unable to do so, and that they cannot afford to pay for publication in a legal newspaper.   The application is much more likely to be granted if the petitioner was previously granted a Fee Waiver by the Court.

Code of Civil Procedure § 413.30 states: “Where no provision is made in this chapter or other law for the service of summons. The court in which the action is pending may direct that the summons be served in a manner which is reasonably calculated to give actual notice to the party served and that proof of such service be made as prescribed by the court.”

A California Court of Appeal has stated that the court may order service on a respondent who cannot be located at his or her last known address by mail and posted notice under Code of Civil Procedure section 413.30 if the petitioner cannot afford to pay for the costs of publication and has submitted a proper application.

The California Court of Appeal cited a United States Supreme Court case from over 40 years ago in which the United States Supreme Court stated that service by mail at the party’s last known address and posted notice is equally effective as publication in a newspaper.

Attorneys or parties in California who would like to view a portion of an 8 page sample request for service of divorce petition by posting containing brief instructions, 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.

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 dissolution, California Dissolution of Marriage, california divorce, California freelance paralegal, California legal topics, Uncategorized | Tagged , , , , | Leave a comment

Opposing a motion to enforce settlement agreement in California

Opposing a motion to enforce a settlement agreement in California is the topic of this blog post. Any opposition to the motion 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.

Any party served with a motion to enforce a settlement agreement should carefully review the motion and all supporting documents to determine what grounds for opposition exist. Numerous possible grounds exist for opposing a motion to enforce a settlement agreement but the most common grounds would likely be that (1) the settlement agreement is not valid as the parties did not agree to all the material terms; (2) the settlement agreement was not signed by all the parties nor was it made orally before the court, thus the settlement agreement does not comply with Code of Civil Procedure section 664.6, and 3) the dismissal with prejudice of the lawsuit by the moving party deprived the Court of subject matter jurisdiction. This blog post will briefly discuss these 3 grounds.

The law is settled in California that a settlement agreement is not considered valid unless the parties agreed to all the material terms of the settlement.   Because a settlement agreement is considered a contract the legal principles which apply to contracts apply in general to settlement agreements. Because a contract requires mutual assent lack of mutual assent would render any settlement agreement invalid.

A settlement agreement is not enforceable under Code of Civil Procedure section 664.6 unless it has been signed by all of the parties to the agreement outside the presence of the Court or is made orally before the Court. The California Supreme Court and Courts of Appeal have stated that the settlement agreement must be signed by the litigants themselves. No other person such as an attorney, spouse or other agent may sign on behalf of a party.

Now we come to the third common ground for opposition. Some settlement agreements provide that the plaintiff will dismiss the action with or without prejudice upon all parties signing the settlement agreement. Unless the agreement states otherwise and the Court has been requested to retain jurisdiction over the parties to enforce the settlement agreement the Court is without power to grant the motion due to the fact that a dismissal terminates an action pursuant to Code of Civil Procedure § 581. After a case has been dismissed no court has any subject matter jurisdiction to grant any relief other than costs and fees.

Attorneys or parties in California who would like to view a portion of a 13 page sample opposition 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.

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 freelance paralegal, California legal topics, law and motion | Tagged , , , | Leave a comment

Service by publication in California

Service of a summons and complaint in California by publication is the topic of this blog post. Code of Civil Procedure section 415.50 authorizes service by publication if certain strict requirements are met. A summons and petition in a dissolution (divorce), legal separation or nullity proceeding in California can also be served by publication.

It should be noted that service by publication should only be used as a last resort in cases where a defendant or respondent truly cannot served in any other authorized manner. One of the biggest drawbacks to service by publication is the cost which in most cases will equal or exceed $500.00 or more! Anyone considering requesting service by publication should consider retaining an experienced “skip tracer” to locate the defendant or respondent as the fee will almost surely be much less than service by publication.

Another drawback is that the defendant or respondent may file a motion to vacate any judgment even years after the judgment is entered and may stand a good chance of having their motion granted if they can show that the plaintiff or petitioner failed to exercise reasonable diligence in attempting to locate them, committed perjury in obtaining the publication order or submitted a defective affidavit or declaration.

The first requirement that must be met is that the plaintiff or petitioner must submit an affidavit or declaration under penalty of perjury showing that the defendant or respondent cannot, with reasonable diligence, be served in another authorized manner that a cause of action exists against such person or that person is a necessary or proper party to the action. See Code of Civil Procedure § 415.50(a)(1).

It should be noted that even a verified complaint or petition for dissolution or other family law proceeding is not a substitute for the required affidavit or declaration establishing that a cause of action exists against the defendant or respondent. See Olvera v. Olvera (1991) 232 Cal.App.3d 32, 42, fn. 9 (dissolution case.)

Alternatively the plaintiff can submit an affidavit or declaration stating that the party to be served has or claims an interest in real or personal property in California that is subject to the court’s jurisdiction, or the relief demanded in the action consists wholly or in part in excluding such party from any interest in such property. See Code of Civil Procedure § 415.50(a)(2).

Note that service by publication is the least likely method to give a defendant or respondent actual notice of the proceeding (it essentially imparts only what is known as “constructive” notice). Thus the “reasonable diligence” required is much more burdensome than that which would allow for substitute service under Code of Civil Procedure § 415.20.

Essentially section 415.50 authorizes only a last resort form of service where the whereabouts of the defendant or respondent are unknown and he or she has no known fixed location where service in another authorized manner can be performed.

An order permitting service by publication may not rest simply on the alleged “actual ignorance” of the whereabouts of the defendant or respondent. Rather, courts “necessarily” must require a showing of exhaustive attempts to locate respondent. Olvera v. Olvera (1991) 232 Cal.App.3d 32, 41-42; see also Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392-1393 (distinguishing less onerous “reasonable diligence” for substitute service).

The fact that a defendant or respondent cannot be physically located does not mean there is no available alternative method of service. For example, where respondent has a known post office box, “reasonable diligence” to effect service other than by publication requires attempted Code of Civil Procedure § 415.30 service by mail at the P.O. box; otherwise, an application for published summons is “defective as a matter of law.” Transamerica Title Ins. Co. v. Hendrix (1995) 34 Cal.App.4th 740, 746–though D was unlocatable, P knew D’s post office address and that his mail was being picked up there.

The supporting declaration(s) attesting to the efforts made to locate the defendant or respondent and to effect alternative service must be executed by persons with personal knowledge of the facts such as the process server and/or attorney who conducted the search and submitted to the court in application for an order authorizing service by publication. General allegations and conclusions that the defendant or respondent cannot be found are insufficient. Olvera v. Olvera, supra, 232 Cal.App.3d at 42-§ 415.50 affidavit must establish requisite reasonable diligence by “probative facts” based on personal knowledge; see also Transamerica Title Ins. Co. v. Hendrix, supra, 34 Cal.App.4th at 742-743–declaration stating “Defendant’s address unknown” defective “as a matter of law”.

Note that submitting defective reasonable diligence declarations can have serious consequences even if the Court orders service by publication.

Unless an affidavit or declaration is submitted demonstrating on personal knowledge that a plaintiff or petitioner exercised the requisite reasonable diligence to locate respondent, a judgment based on published service is void and subject to direct or collateral attack. Olvera v. Olvera, supra, 232 Cal.App.3d at 41,–defaulting respondent’s actual knowledge of action from another source does not preclude seeking Code of Civil Procedure § 473.5 set-aside relief; see also Transamerica Title Ins. Co. v. Hendrix, supra, 34 Cal.App.4th at 746 –trial court has “legal duty” to vacate default entered after invalid service by publication.

The court order authorizing service by publication must direct summons to be published in a named California newspaper most likely to give defendant or respondent actual notice and, if defendant or respondent resides out of state, may also order publication in a named newspaper outside California that is most likely to give actual notice. The court’s order must further direct that a copy of the summons, complaint or petition and order for publication “be forthwith mailed” to defendant or respondent if his or her address is ascertained before expiration of the time prescribed for publication. Code of Civil Procedure § 415.50(b); see Olvera v. Olvera, supra, 232 Cal.App.3d at 42-43 –selection of Riverside newspaper for publication failed “most likely to give actual notice” standard where Ps admitted D no longer resided in Riverside and received mail elsewhere.

Publication must occur at least once a week for four successive weeks (unless the court, in its discretion, orders a longer period). Generally, five days should elapse between the successive publication dates. Code of Civil Procedure § 415.50(b); see Government Code § 6064.

An order for publication does not preclude service in another authorized manner. If alternative service is made during the publication period, published summons is superseded. Code of Civil Procedure § 415.50(d).

Service by publication is deemed complete, and the 30-day response period commences to run, on the 28th day following the first day of publication (inclusive of the first day). Code of Civil Procedure § 415.50(c); see Government Code § 6064.

However, the response period may begin sooner if another authorized manner of service is performed in the interim.

Attorneys or parties in California who wish to view more than 255 sample legal documents for California and Federal litigation created by and sold by the author of this blog post can use the following link: http://www.scribd.com/LegalDocsPro/documents

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, California freelance paralegal, California legal topics | Tagged , , , , , | Leave a comment

Opposing a special motion to strike in California

Opposing a special motion to strike in California is the topic of this blog post. A special motion to strike is also known as an anti-SLAPP motion. Any opposition to the special motion to strike 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.

Any party served with a special motion to strike should be sure to conduct a thorough review of the motion and supporting declarations to determine what grounds exist for an opposition. The first item to review is whether the special motion to strike is timely filed in that a special motion to strike must be filed within 60 days after service of the complaint on the defendant, unless the trial court exercises its discretion to consider a later-filed motion.

Code of Civil Procedure § 425.16(f) states: ?“The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.”

The California Supreme Court has stated that the purpose of the timing requirement is to allow for the early dismissal of any lawsuit that is subject to special motion to strike in order to minimize the cost to the defendant.

And several decisions of the California Courts of Appeal have stated that a trial court is not required to decide the merits of any special motion to strike that is not timely filed unless the court chooses to exercise its discretion.

Another possible ground for opposition would be the fact that the moving defendant has failed to meet their burden of making a threshold showing that the challenged cause or causes of action is one arising from protected activity. Resolution of an anti-SLAPP motion requires the court to engage in a two-step process. First the moving defendant must demonstrate that the actions of which the plaintiff complains were done in furtherance of the right of the defendant to petition for redress of grievances or their right to free speech under the United States or California Constitution.

The California Supreme Court stated in a recent case that it is only in cases where the court determines that the defendant has met their burden of making a threshold showing that the plaintiff is required to show a probability of prevailing on any part of their claim. The Supreme Court has also stated that only a cause of action that arises from protected speech or petitioning and that lacks even minimal merit is subject to being stricken under the anti-SLAPP statute.

Attorneys or parties in California who would like to view a portion of a sample 13 page opposition to a special motion to strike 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.

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 law and motion, law and motion | Tagged , , , , | Leave a comment

Vacating a California divorce judgment on the grounds of mistake

Vacating a California divorce judgment on the grounds of mistake is the topic of this blog post. Vacating a divorce judgment in California on the grounds of mistake is authorized by Family Code section 2122(e). A legal separation or nullity judgment in California may also be vacated on the grounds of mistake.

The party moving for relief from a judgment on the grounds of mistake must make an adequate showing of mistake and must also show that the mistake materially affected the original outcome and that they would materially benefit from the granting of the relief.

Family Code § 2121 states that, “(a) In proceedings for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court may, on any terms that may be just, relieve a spouse from a judgment, or any part or parts thereof, adjudicating support or division of property, after the six-month time limit of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within the time limits, provided in this chapter. (b) In all proceedings under this chapter, before granting relief, the court shall find that the facts alleged as the grounds for relief materially affected the original outcome and that the moving party would materially benefit from the granting of the relief.”

Family Code § 2122 states in pertinent part that, “The grounds and time limits for a motion to set aside a judgment, or any part or parts thereof, are governed by this section and shall be one of the following:

(e) As to stipulated or uncontested judgments or that part of a judgment stipulated to by the parties, mistake, either mutual or unilateral, whether mistake of law or mistake of fact. An action or motion based on mistake shall be brought within one year after the date of entry of judgment.”

The legal standard of mistake under Family Code § 2122(e) is much broader than the extrinsic mistake standard applied under the former law as has been stated by at least two California Court of Appeal decisions.

Another advantage is that the mistake can be a mistake of fact or of law. In fact one recent California Court of Appeal decision upheld the validity of a motion under Family Code section 2122(e) based only on a legal conclusion that was erroneous.

In addition no showing of wrongdoing is required in order to obtain relief.

A failure to make a full disclosure regarding a community asset may be a basis for setting aside a judgment and any underlying Marital Settlement Agreement as well as where there has been an invalid waiver of the final declaration of disclosure requirements.

Attorneys or parties who would like to view a portion of a sample 10 page motion to vacate a California divorce judgment on the grounds of mistake 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 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 Subscribe to FREE weekly legal newsletter for more information.

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

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

DISCLAIMER:

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

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

 

Posted in california dissolution, California Dissolution of Marriage, california divorce, California freelance paralegal | Tagged , , , | Leave a comment