Vacating a stipulation in a California divorce case

Vacating a stipulation in a California divorce case is the topic of this blog post. To request that a stipulation in a California divorce case be vacated a request for order or motion must be filed under the provisions of Code of Civil Procedure section 473 and Family Code section 210. Note that a settlement can also be vacated as well as a stipulation. A motion to vacate a stipulation can also be filed in a California legal separation or a nullity case.

The grounds for vacating a stipulation in a California divorce case include mistake, inadvertence, excusable neglect, fraud, mistake of law or fact, where the facts stipulated have changed or there has been a change in the underlying that could not have been anticipated, or where special circumstances exist rendering it unjust to enforce the stipulation. Several decisions of the California Courts of Appeal have stated that the issue of fairness can also be considered in appropriate situations where a motion to vacate a stipulation has been filed.

Code of Civil Procedure Section 473 states in pertinent part: “The Court may, upon any terms as may be just, relieve a party, or his or her legal representative from a judgment, dismissal, order or other proceeding, taken against him or her through his or her mistake, inadvertance, surprise or excusable neglect.”

A motion to vacate a settlement or stipulation may be filed in a California divorce or other family law case pursuant to Family Code § 210 which states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

Note that any motion to vacate a stipulation or settlement in divorce case in California should be made as soon as possible once a party discovers the mistake of fact or law, fraud, etc as the motion must be filed within a reasonable period of time in no case exceeding six months once the stipulation or settlement has been signed or entered. The more quickly the motion is filed the better as section 473 is applied liberally where there is a prompt request for relief and the opposing party will not suffer any prejudice if relief is granted.

The moving party should be sure to include enough detailed facts in their supporting declaration to support the motion as well as attaching any relevant exhibits.

Attorneys or parties in California who would like to view a portion of a 11 page sample motion to vacate a stipulation 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 that 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.

You can view portions of over 255 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro/documents

*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

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, motion to vacate | Tagged , , , , , | Leave a comment

New trial motion in California eviction case

A new trial motion in a California eviction case is the topic of this blog post. The California statutes governing new trials are found in Code of Civil Procedure sections 656 through 663.2.   Code of Civil Procedure section 656 states that “A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.”

The advantage of a motion for new trial as compared to a motion for judgment notwithstanding the verdict is that it permits the court to reexamine an issue of fact or law. Several decisions of the California Courts of Appeal have stated that the trial court has broad discretion to reweigh the evidence, reassess credibility, disbelieve witnesses, and act as a thirteenth juror in deciding a motion for new trial.

A motion for a new trial may be made in a California eviction case on the same grounds as for any other civil case pursuant to Code of Civil Procedure § 1178.

Code of Civil Procedure § 657 states in pertinent part that a party may move for a new trial on all of the issues on the application of an aggrieved party for any of the following causes, materially affecting the substantial rights of such party.

Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

Accident or surprise, which ordinary prudence could not have guarded against.

Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

Excessive or inadequate damages.

Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

Error in law, occurring at the trial and excepted to by the party making the application

Code of Civil Procedure § 658 states that, ”When the application is made for a cause mentioned in the first, second, third and fourth subdivisions of Section 657, it must be made upon affidavits; otherwise it must be made on the minutes of the court.

However, there are strict deadlines that must be met.   The first thing any party who wants to request a new trial should do is file a notice of their intention to move for a new trial and specify all of the seven grounds listed in section 657. This MUST be done in a timely manner or the motion will be denied.

Code of Civil Procedure § 659 states that, “(a) The party intending to move for a new trial shall file with the clerk and serve upon each adverse party a notice of his or her intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court, or both, either:

(1) After the decision is rendered and before the entry of judgment.

(2) Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest; provided, that upon the filing of the first notice of intention to move for a new trial by a party, each other party shall have 15 days after the service of that notice upon him or her to file and serve a notice of intention to move for a new trial.

(b) That notice of intention to move for a new trial shall be deemed to be a motion for a new trial on all the grounds stated in the notice. The times specified in paragraphs (1) and (2) of subdivision (a) shall not be extended by order or stipulation or by those provisions of Section 1013 that extend the time for exercising a right or doing an act where service is by mail.”

Code of Civil Procedure § 659a states that, “Within 10 days of filing the notice, the moving party shall serve upon all other parties and file any affidavits intended to be used upon such motion. Such other parties shall have ten days after such service within which to serve upon the moving party and file counter-affidavits. The time herein specified may, for good cause shown by affidavit or by written stipulation of the parties, be extended by any judge for an additional period of not exceeding 20 days.”

While it may not be technically required by any law in California a memorandum of points and authorities with citations to case law and statutory authority is strongly recommended and should be filed and served at the same time as the supporting affidavits.

The power of the court to rule on a motion for a new trial shall expire 60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier, or if such notice has not theretofore been given, then 60 days after filing of the first notice of intention to move for a new trial. If such motion is not determined within said period of 60 days, or within said period as thus extended, the effect shall be a denial of the motion without further order of the court. See Code of Civil Procedure § 660 for more details.

Attorneys or parties in California who would like to view a portion of a 15 page sample motion for new trial in a California eviction case that includes brief instructions, a notice of intention to move for new trial, 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.

You can view portions of over 255 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro/documents

*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

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

Reconsideration of an order in California divorce

Reconsideration of an order in a California dissolution (divorce) case is the topic of this blog post. A motion for reconsideration should be filed by any party in a California divorce who is requesting that the court reconsider a prior order. Code of Civil Procedure section 1008(a) is the statute that authorizes reconsideration of an order in California. A motion for reconsideration can also be filed in a legal separation or nullity case in California as well as a divorce case.

So long as a party is aware of the limitations involved motions for reconsideration can be very useful. The first and most important limitation is the 10 day deadline for filing the motion. A statutory motion for reconsideration must be filed within 10 days after service on the party of written notice of entry of the order. The second limitation is the requirement that the party moving for reconsideration of an order must make a showing of new or different facts, circumstances or law since the date of the original order that the moving party was not aware of and could not have discovered with reasonable diligence.

Code of Civil Procedure § 1008(a) states that “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

A motion for reconsideration may be filed in a California divorce or other family law case pursuant to Family Code § 210 which states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

Several decisions of the California Courts of Appeal have stated that a decision on a motion is not res judicata, and a trial court has jurisdiction to reconsider a prior ruling.

A motion for reconsideration is only applicable to interim orders, not final orders. Note that any party affected by an order may file a motion as reconsideration is not limited to the party who filed the original application for an order.

Attorneys and parties in California who would like to view a portion of a sample 11 page motion for reconsideration 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.

Attorneys or parties who would like to view portions of over 250 sample legal documents for California and Federal litigation sold by the author of this blog post can use the link shown below.

http://www.scribd.com/LegalDocsPro

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

Request for trial date continuance in California divorce case

A request for trial date continuance in a California divorce case is the topic of this blog post. A trial date continuance in California is disfavored but if good cause is shown by the moving party a continuance may be granted.

Any request for a trial date continuance can be made by noticed motion or by ex-parte application. If the trial date is fast approaching it is better practice to file an ex-parte application for a continuance of the trial date.

A trial date continuance in a California divorce or other family law matters are governed by California Rule of Court 3.1332 and Family Code section 210.

A request for a trial date continuance may be made in a California divorce or other family law case pursuant to Family Code § 210 which states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

Any request for a continuance should be filed as soon as “reasonably practical” after the justification for the continuance is discovered. California Rule of Court 3.1332(b). Contacting the opposing party or their counsel and detailing the need for the continuance in an attempt to obtain their agreement to stipulate to a continuance is a good idea as some Judges will consider whether or not the moving party attempted to obtain a stipulation before filing any request with the court.

Although trial continuances may be disfavored, each case must be considered on its own merits pursuant to California Rule of Court 3.1332(c) which states in pertinent part that:

The following circumstances may indicate the presence of good cause warranting a continuance:

unavailability of essential lay or expert witness because of death, illness or other excusable circumstances, California Rule of Court 3.1332(c)(1);

unavailability of a party because of death, illness or other excusable circumstances, California Rule of Court 3.1332(c)(2);

unavailability of trial counsel because of death, illness or other excusable circumstances, California Rule of Court 3.1332(c)(3);

substitution of trial counsel where there is an affirmative showing that the substitution is required in the interests of justice, California Rule of Court 3.1332(c)(4);

addition of a new party if the new party has not had a reasonable opportunity to conduct discovery or the other parties have not had an adequate opportunity to prepare for trial in regard to the new party, California Rule of Court 3.1332(c)(5)(A),(B);

a party’s inability to obtain essential testimony, documents or other material evidence despite diligent efforts, California Rule of Court 3.1332(c)(6), or

a significant unanticipated change in the status of the case as a result of which the case is not ready for trial. California Rule of Court 3.1332(c)(7).

The most common reasons for requesting a continuance in a California eviction case would most likely be the serious illness of a party or material witness, or the inability to obtain essential testimony, documents or other material evidence.

Trial courts have great discretion in ruling on any request for a continuance but must also consider whether denying a request for a continuance will deny the moving party a fair hearing.

Attorneys or parties in California who would like to view a portion of a sample 13 page ex-parte application for a continuance of the trial date in California containing brief instructions, a memorandum of points and authorities, sample declaration, sample declaration of ex-parte notice and proposed order sold by the author can see below.

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

You can view portions of over 255 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro/documents

*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

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 | Tagged , , , , | Leave a comment

Judgment notwithstanding the verdict in California eviction case

Judgment notwithstanding the verdict in a California eviction case is the topic of this blog post. Judgment notwithstanding the verdict (JNOV) in California is authorized pursuant to Code of Civil Procedure section 629.

JNOV motions are more limited in scope compared to a motion for new trial. The main advantage of a JNOV motion and the reason it is a very powerful tool if used in the right situation is the fact that a JNOV motion challenges the legal sufficiency of the evidence at trial, thus prevailing on the motion results in a new and different judgment in favor of the moving party.

A JNOV motion is very different from a motion for a new trial as a JNOV motion consists of a single document. The entire motion, including the notice of motion and memorandum of points and authorities, is due at the same time as the notice of intent to move for a new trial.

Code of Civil Procedure § 629 states in pertinent part that, “The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days’ notice, or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.”

A motion for judgment notwithstanding the verdict may be filed in an eviction case in California as Code of Civil Procedure § 1177 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 a new trial and a JNOV motion are often sought concurrently. Thus the time limit for filing the JNOV motion is exactly the same as the time for filing a notice of intent to move for a new trial. A JNOV motion must be filed and served on all adverse parties within the period for filing a new trial notice of intent under Code of Civil Procedure Section 659 which is within 15 days of the date of mailing notice of entry of judgment by the clerk of the court, or service upon the moving party by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest. This time period cannot be extended by any court or any stipulation.

Because a JNOV motion anticipates the entry of a new and different judgment, a proposed judgment should be included with the motion or be submitted at the time of hearing at the latest. Prompt compliance is extremely important because the trial court has a very limited time in which to act on the motion for JNOV.

The main limitation to the JNOV is that the trial court’s power to grant a motion for JNOV is severely limited as the case law in California is very clear that a trial court may not grant a JNOV unless there is an actual verdict.

However if no substantial evidence supports the jury’s verdict a JNOV must be granted as one California Court of Appeal has stated that the purpose of a motion for judgment notwithstanding the verdict is not to afford a review of the jury’s deliberation but to prevent a miscarriage of justice in those cases where the verdict rendered is without foundation.

Attorneys and parties in California who would like to view a portion of a sample 13 page motion for judgment notwithstanding the verdict for an eviction case containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, proposed order granting judgment notwithstanding the verdict and proof of service by mail sold by the author can see below.

Attorneys or parties who would like to view portions of over 250 sample legal documents for California and Federal litigation sold by the author of this blog post can use the link shown below.

http://www.scribd.com/LegalDocsPro

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that 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. 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 going to 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, law and motion | Tagged , , , , , | Leave a comment