Demand for a partial satisfaction of judgment in California

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

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

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

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

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

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

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

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

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

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

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

 

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

For licensed attorneys and law firms that need assistance with any California or Federal litigation matters, Mr.  Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

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

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

DISCLAIMER:

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

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

 

 

 

Motion to compel satisfaction of judgment in California

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

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

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

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

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

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

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

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

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

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

 

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

For licensed attorneys and law firms that need assistance with any California or Federal litigation matters, Mr.  Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

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

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

DISCLAIMER:

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

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

 

 

 

 

 

Motion for directed verdict in a California eviction case

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

A motion for directed verdict in a California eviction case can only be filed in cases involving a jury trial and is authorized by Code of Civil Procedure section 630 and Code of Civil Procedure section 1177 which states that, “Except as otherwise provided in this Chapter the provisions of Part II of this Code are applicable to, and constitute the rules of practice in the proceedings mentioned in this Chapter.”

A motion for directed verdict is very similar to a motion for nonsuit in that the motion essentially operates as a demurrer to the evidence presented by the opposing party. Either motion will be granted if there is no substantial evidence to support the claim or defense of the party opposing the motion. However, there are some differences between the two motions which are:

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

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

A motion for directed verdict in a California eviction is used in order to achieve a judgment as a matter of law. The judgment requested would be in favor of one (or more) parties on all (or some) of the issues in that particular case. The motion is filed after all parties present their evidence and before the matter goes to the jury. The granting of the motion may dismiss a party or decide some (or all) of the issues before the matter goes to a jury. After entry of any judgment in accordance with a directed verdict, the prevailing party can recover its costs of suit pursuant to Code of Civil Procedure § 1038.

Note that a motion for directed verdict is only appropriate when it is clear from the evidence presented, that the party against whom the motion is made, typically a plaintiff or cross-complainant, cannot meet its burden of proof of elements of its claim against the moving party.

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

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

In ruling on a motion for directed verdict, the court determines only whether there is no evidence to support a verdict against the moving party. On a motion for directed verdict, the court’s decision will operate as an adjudication on the merits unless otherwise ordered by the court, however the jury must still render a verdict before the decision on the motion for directed verdict can be incorporated in the final judgment.

A California Court of Appeal has stated that filing a motion for directed verdict is proper when there is no conflict in the evidence, and substantial evidence supports a verdict in favor of the moving party.

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

Attorneys or parties who would like to view a portion of a 14 page sample motion for directed verdict in a California eviction case including a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proposed order sold by the author can see below.

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California eviction litigation document package

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

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

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

DISCLAIMER:

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

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

 

 

 

 

 

 

Motion for attorney’s fees under Civil Code section 1717 in California

A motion for attorney’s fees under Civil Code section 1717 in California is the topic of this blog post.

A motion for attorney’s fees under Civil Code section 1717 in California can be filed by the prevailing party on a contract containing an attorney fee provision.

Deadline for filing motion for attorney’s fees under Civil Code section 1717 in California.

A motion for attorney’s fees under Civil Code section 1717 in California must be filed within the time for filing a notice of appeal under California Rules of Court 8.104 and 8.108. See California Rule of Court 3.1702(b) (1).  In most cases that means the motion must be filed within 60 days from notice of entry of judgment, with an additional 30 days if certain valid post-judgment motions are filed such as a Motion for New Trial or JNOV.

Civil Code § 1717 (a) states that,

“In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.

Where a contract provides for attorney’s fees, as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract.

Reasonable attorney’s fees shall be fixed by the court, and shall be an element of the costs of suit.

Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.”

The California Supreme Court has stated that a party that obtains a simple, unqualified win on the contract must be awarded their reasonable attorney’s fees.

If you are filing a motion for attorney’s fees the hours spent on the case should be very well substantiated although detailed time records are generally not required.

The amount of time that is spent can include all hours that were incurred working on investigation and evaluation of claims, drafting and revising pleadings (including the motion for attorney’s fees), research and briefing of factual and legal issues, and conferring with clients and/or other counsel.

Sample motion for attorney’s fees under Civil Code section 1717 in California for sale.

Attorneys or parties in California that would like to view a portion of a sample 13 page motion for attorney’s fees under Civil Code section 1717 in California 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 a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

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

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

DISCLAIMER:

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

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

 

 

 

 

Alter ego liability in California

Alter ego liability in California is the topic of this blog post.

Alter ego liability in California is usually alleged against smaller corporations, particularly corporations with only one or two owners.   However, it may also be used against Limited Liability Companies in California pursuant to California Corporations Code section 17101(b).

Alter ego allegations are also known in the legal field as corporate veil piercing allegations because they are used to “pierce the corporate veil” and allow a plaintiff to add an individual person, or persons, or even another corporation as a defendant and seek to hold them responsible for the debt of the main corporation.

Several years ago I drafted a complaint with alter ego allegations against a California Limited Liability Company on the grounds that one of the managing members took the proceeds from a business loan and deposited them into their personal bank account.

Requirements to impose alter ego liability in California.

There are two main requirements of alter ego liability in California as stated by a California Court of Appeal.

There must be such unity of interest and ownership that the separate personalities of the corporation and individual no longer exist, and that if the acts are treated as those of the corporation alone, it would sanction a fraud or promote injustice to uphold the corporate entity and allow the shareholders to escape personal liability for the debt. See Associated Vendors Inc. v. Oakland Meat Co.  (1962) 210 Cal. App. 2d 825, 836.

Another California Court of Appeal stated that alter ego liability is premised upon the notion that when a corporation is used by an individual or individuals, or by another corporation, to perpetrate a fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose, a court may disregard the corporate entity and treat the acts as if they were done by the individuals themselves. See Kohn v. Kohn (1950) 95 Cal. App. 2d 708, 717-720.

The generic allegations used in California often include such allegations as,

“Defendants used the assets of Defendant ______ for their personal use and caused the assets of Defendant ___________ to be transferred to them without adequate consideration, and have withdrawn funds from the bank accounts of Defendant _________for their own personal use.”

Other allegations typically state that the individual or other corporate defendants have used the main corporate defendant as a mere shell, instrumentality, and/or conduit from which said Defendants have carried on their business as if the main corporate defendant did/does not exist, to such an extent that any individuality or separateness of the named Defendants has never existed, and that the activities of the main corporation were carried out without the required holding of directors’ or shareholders meetings, and no records or minutes of any corporate proceedings were maintained.

If you own a small corporation or limited liability company in California you cannot totally avoid the possibility that someone may seek to hold you personally liable for the debts for a corporation or limited liability company which you own or control. However, if you just keep in mind the fact that in order for your business to be treated like a separate entity, you need to act like a separate entity with totally separate bank accounts, never commingle funds between personal and business accounts, and comply with all of the required legal formalities.

Sample complaint with allegations to impose alter ego liability in California for sale.

Attorneys or parties in California who would like to view a portion of a sample California complaint with alter ego allegations can see below.

 

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

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

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

DISCLAIMER:

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

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

 

 

 

California and Federal litigation

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