Opposition to motion to vacate judgment for lack of actual notice in California

An opposition to motion to vacate judgment for lack of actual notice in California is the topic of this blog post. The opposition to the motion to vacate judgment under Code of Civil Procedure section 473.5 should be filed with the court at least nine (9) court days before the hearing and served by personal service or overnight mail pursuant to Code of Civil Procedure section 1005.

If you have been served with a motion to vacate judgment under Code of Civil Procedure section 473.5 you should carefully review the motion and supporting declarations and exhibits to determine what grounds for opposition exist.

Common grounds for opposing a motion to vacate judgment filed under Code of Civil Procedure section 473.5 include that the moving party has not shown a satisfactory explanation for the delay between their discovery of the default and judgment, and that any alleged lack of actual notice was caused by inexcusable neglect and avoidance of service.

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

Published decisions from several California Courts of Appeal have ruled that the moving party must show that their lack of actual notice in time to defend the action was not caused by either inexcusable neglect or avoidance of service.

Another published decision from a California Court of Appeal ruled that the motion to vacate must be supported by an affidavit or declaration containing admissible and competent evidence and that hearsay evidence is not sufficient.

Even if the motion to vacate judgment is granted the court still has the power to order that as a condition of the default and judgment being vacated that the defendant pay reasonable costs including attorney fees incurred by the plaintiff in obtaining the default judgment pursuant to subdivision (c) of section 473.5 which states that relief may be granted “on such terms as may be just.”

Attorneys or parties in California that would like to view a portion of a 10 page sample opposition to a motion to vacate under Code of Civil Procedure section 473.5 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.

Attorneys or parties in California that would like more information on a California law and motion litigation document package containing over 55 sample documents including a sample opposition to a motion for judgment on the pleadings can use the link shown below.

California law and motion litigation document package

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

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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 300 sample legal documents for California and Federal litigation.

You can view portions of over 300 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro

*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 300 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.

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 strike punitive damages in California

A motion to strike punitive damages in California is the topic of this blog post. Filing a motion to strike punitive damages allegations and/or a prayer for punitive damages is an excellent tool in situations where the complaint includes only boilerplate and conclusory allegations in support of a request for punitive damages.

Code of Civil Procedure § 436 states in pertinent part that a motion to strike may be filed to strike any irrelevant matter inserted in any pleading, and to strike any pleading or part thereof not drawn in conformity with the laws of this state.

The pleadings at which a motion to strike may be directed include demurrers, answers, complaints, and cross complaints. See Code of Civil Procedure § 435(a).

The law in California is settled that the mere allegation that an intentional tort was committed is not sufficient to warrant an award of punitive damages. For allegations to be sufficient to support an award of punitive damages the complaint must specifically plead facts to support any claim of oppression, fraud or malice.

Merely alleging that the conduct of the defendant was intentional, willful and fraudulent is not sufficient to support a claim for punitive damages.

The statutory elements for punitive damages include allegations that the defendant has been guilty of oppression, fraud or malice. See Civil Code § 3294(a).

Malice is defined in the statute as conduct “intended by the defendant to cause jury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” See Civil Code § 3294(c)(1).

Oppression means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” See Civil Code § 3294(c)(2).

Fraud is “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” See Civil Code § 3294(c)(3).

Another defect that I see fairly often in complaints that include punitive damages allegations is where the plaintiff has stated the amount or amounts of punitive damages specifically requested. This is improper as Civil Code section 3295(e) states that, “No claim for exemplary damages shall state an amount or amounts.” Therefore no amount of punitive damages that are sought should be included either in the body of the complaint or in the prayer. See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2012) ¶ 6:292, p. 6-82, “[t]he rule prevents plaintiff from using exaggerated demands for punitive damages as a financial bludgeon or for publicity purposes

Attorneys or parties that would like to view a portion of a sample 11 page motion to strike punitive damages allegations in California containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and proof of service by mail sold by the author can see below.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

*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 300 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 freeweeklylegalnewsletter.gr8.com/ for more information.

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

View sample legal document packages for sale here: 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.

 

Modification of spousal support in California

A request for a modification of spousal support in California is the topic of this blog post.   The party seeking a modification of spousal support must file a notice of motion or request for order with the court in order to initiate the process.

The law in California is settled that the party seeking a modification of spousal support has the burden of showing a material change of circumstances since the date of the last spousal support order.

The California Courts of Appeal have ruled in published cases that a modification of spousal support is justified when the moving party has met their burden of demonstrating a material change of circumstances, since the last order was issued, in the relevant factors that affect need and ability to pay. A material change of circumstances is justified in situations where there has been a reduction or increase in the ability of the supporting spouse to pay and/or in situations where there has been a reduction or increase in the needs of the supported spouse. The trial court has very broad discretion in determining if a material change of circumstances exists.

Family Code § 3651(a) provides that, with specified exceptions, “a support order may be modified or terminated at any time as the court determines to be necessary.” An order for spousal support may not be modified or terminated, however, if the parties have so agreed in a written agreement or in an oral agreement entered into in open court pursuant to Family Code § 3651(d).

Family Code § 4336(a) states in pertinent part that, “Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage … where the marriage is of long duration.” Family Code § 4336(b) states in pertinent part that for the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration.

However a California Court of Appeal recently ruled in a published case that even if a marriage has been a lengthy one that by itself does not justify an unlimited spousal support award. Unless a spouse can show specific facts that show they are incapable of becoming self-supporting they cannot expect to receive spousal support payments indefinitely.

Attorney or parties in California that would like to view a 9 page sample points and authorities in support of a notice of motion or request for order to modify spousal support containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and a sample declaration sold by the author can use the link shown below.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

*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 300 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 freeweeklylegalnewsletter.gr8.com/ for more information.

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

View sample legal document packages for sale here: 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.

Cause of action for adverse possession in California

A cause of action for adverse possession in California is the topic of this blog post.

Adverse possession can occur when someone publicly moves into and also improves a property that is otherwise neglected. Once a certain amount of time has passed (at least 5 years in California) that person may file a lawsuit with the court for a judgment quieting title to the real property in their name and granting them legal title.

However the laws regulating adverse possession in California have some very strict requirements that must be met in order to be eligible for legal title.

The statutory law in California is clear and the case law is settled that the party seeking to gain title to real property by adverse possession must demonstrate the following:

Possession under a claim of right or color of title;

Actual, open, notorious occupation that is protected by a substantial enclosure such as a fence and often cultivated or improved;

Adverse and hostile possession;

Continuous possession for a period of five years, and

Payment of all taxes assessed against the property during the five-year period of continuous possession.

Code of Civil Procedure section 325 was amended by the California legislature and now requires as of January 1, 2011, that any claim for adverse possession requires the claimant to produce certified records from the county tax collector showing that all state, county, or municipal taxes have been “timely paid” for each of the five years the property has allegedly been occupied and claimed. The amendment was made due to concerns that speculators might attempt to make lump sum tax payments on land located in rural areas in the hopes that might allow them to assert a claim of right to the land

It is well settled in California that an adverse possession claimant bears the burden of proving every element by clear and positive proof. This means that many California courts are very reluctant to grant a quiet title action based on adverse possession and will require a very high standard of proof.

However there are situations where filing a quiet title action based on adverse possession makes sense.

Attorneys or parties in California that would like to view a portion of a sample complaint for quiet title, adverse possession and declaratory relief sold by the author can see below.

To view over 300 sample legal documents created by the author of this blog post use the link shown below.

www.scribd.com/LegalDocsPro

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

*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 300 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 freeweeklylegalnewsletter.gr8.com/ for more information.

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.

These 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.

 

Summary dissolution in California

A summary dissolution in California is the topic of this blog post.   A  summary dissolution is commonly known as a summary divorce. The statutes that authorize a summary divorce in California are found in Family Code sections 2400 through 2406.

The main advantage of a summary divorce is that it is much less complicated and requires much less paperwork than even an uncontested divorce in California. There is no court appearance required. Once the paperwork is filed you must wait until at least six months have passed to ask the court to enter a Judgment of Dissolution of Marriage.

The current qualifications for a summary divorce in California as of the date of this blog post which is August 5, 2015 are as follows:

Irreconcilable differences have caused the irremediable breakdown of the marriage and the marriage should be dissolved.

There are no children of the relationship of the parties born before or during the marriage or adopted by the parties during the marriage, and neither party, to that party’s knowledge, is pregnant.

The marriage is not more than five years in duration as of the date of separation of the parties.

Neither party has any interest in real property wherever situated, with the exception of the lease of a residence occupied by either party which satisfies the following requirements:

(A) The lease does not include an option to purchase.

(B) The lease terminates within one year from the date of the filing of the petition.

There are no unpaid obligations in excess of six thousand dollars ($6,000) incurred by either or both of the parties after the date of their marriage, excluding the amount of any unpaid obligation with respect to an automobile. (The amount of any loans for automobiles does not count towards the $6,000 limit).

The total fair market value of community property assets, excluding all encumbrances and automobiles, including any deferred compensation or retirement plan, is less than forty-one thousand dollars ($41,000), and neither party has separate property assets, excluding all encumbrances and automobiles, in excess of forty-one thousand dollars ($41,000). (The values of any automobiles are not counted towards the $41,000 limit).

The parties have executed an agreement setting forth the division of assets and the assumption of liabilities of the community, and have executed any documents, title certificates, bills of sale, or other evidence of transfer necessary to effectuate the agreement.

The parties waive any rights to spousal support.

The parties, upon entry of the judgment of dissolution of marriage pursuant to Section 2403, irrevocably waive their respective rights to appeal and their rights to move for a new trial.

The parties have read and understand the summary dissolution brochure provided for in Section 2406.

The parties desire that the court dissolve the marriage.

Family Code section 2403 states that once six months have passed since the date that the petition for summary dissolution of marriage was filed the court will enter the judgment dissolving the marriage unless a revocation has been filed.

Both spouses must sign the joint petition for summary dissolution of marriage.

However there is one very big disadvantage to a summary divorce in California and that is the fact that either spouse may revoke the summary divorce at any time until a judgment of dissolution of marriage is entered. If a revocation is entered than the spouses have to start over with a standard dissolution of marriage.

Anyone that would like to view the official Judicial Council Forms for a summary divorce in California can click the link here: http://www.courts.ca.gov/forms.htm?filter=SD

The summary divorce procedure is very useful but cannot always be used due to the specific requirements that must be met.

To view more information on a California divorce litigation document collection containing over 45 sample documents specifically designed for California divorces sold by the author of this blog post can use the link shown below.

http://legaldocspro.net/california-divorce-litigation-document-package/

To view over 300 sample legal documents created by the author of this blog post use the link shown below.

www.scribd.com/LegalDocsPro

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California and Federal legal newsletter by visiting the following link: http://www.legaldocspro.net/newsletter.htm

*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 300 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 freeweeklylegalnewsletter.gr8.com/ for more information.

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.

These 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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