Vacating a sister state judgment in California

Vacating a sister state judgment in California is the topic of this blog post. Code of Civil Procedure section 1710.40 authorizes the filing of a motion to request that a sister state judgment entered in California be vacated.

In most cases the motion to vacate the sister state judgment must be filed within 30 days after service of notice of entry of the sister judgment. However exceptions include situations where the judgment debtor was either not served or not properly served with notice of entry of the sister state judgment, or was not properly served with process in the sister state action.

Code of Civil Procedure section 1710.40(a) states that, “A judgment entered pursuant to this chapter may be vacated on any ground which would be a defense to an action in this state on the sister state judgment, including the ground that the amount of interest accrued on the sister state judgment and included in the judgment entered pursuant to this chapter is incorrect.”

There are several possible defenses to the enforcement of a sister state judgment in California. For example the Law Revision Comment for section 1710.40(a) states that, “Common defenses to enforcement of a sister state judgment include the following: 1 the judgment is not final and unconditional . . . ; 2 the judgment was obtained by extrinsic fraud; 3 the judgment was rendered in excess of jurisdiction; 4 the judgment is not enforceable in the state of rendition; 5 the plaintiff is guilty of misconduct; 6 the judgment has already been paid; and 7 suit on the judgment is barred by the statute of limitations in the state where enforcement is sought”. Law Revision Com. com., 19A West’s Ann. Code Civ. Proc. (1982) foll. § 1710.40, p. 694.

Before a sister state judgment is given full faith and credit by a California Court a California Court of Appeal has ruled that the sister state must have had jurisdiction over the parties and the subject matter, and all interested parties must have been given reasonable notice and an opportunity to be heard.

I do want to point out that the party filing a motion to vacate a sister state judgment has the burden of proof by a preponderance of the evidence that it is entitled to relief.

Filing a motion to vacate a sister state judgment stays enforcement of the sister state judgment until the motion to vacate has been determined. See Code of Civil Procedure section 1710.50(a)(3).

Attorneys or parties in California who would like to view a portion of a sample motion to vacate a sister state judgment 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 by mail sold by the author can see below.

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

*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.

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

Motion strategy in California eviction cases

Motion strategy in California eviction cases is the topic of this blog post. Because of the short time frames in California eviction cases using the correct strategy whenever possible is critical for a defendant. This blog post will discuss motion strategy for demurrers, motions to quash and motions to strike although some of the strategies discussed herein may be useful for other motions as well.

The first motion that is generally filed in response to an eviction complaint is a motion to quash if the defendant contends that they were not properly served.

The rules on filing a motion to quash in an eviction are completely different from the rules that apply to other civil cases in California as the motion to quash in an eviction case must be set for hearing within 3-7 calendar days from filing of the motion. See Code of Civil Procedure § 1167.4(a) and California Rule of Court 3.1327(a). If the motion to quash is served by mail than the hearing date may be extended to between 8-12 calendar days because of the additional 5 calendar days required by the provisions of Code of Civil Procedure § 1013. See California Rule of Court 3.1327(a). However some Courts and Judges strictly enforce the 3-7 calendar day limitation so you should check with the local Court clerk to verify the exact time limit allowed in that particular Court.

I want to point out that some Courts only schedule motions in eviction cases on certain days of the week so you may not be able to choose the particular day. However some Courts do hear motions in eviction cases several days a week. It is my personal opinion that the absolute best day to schedule any responsive motion in a California eviction is Monday. That is because even if the motion is denied the defendant has 5 calendar days to respond and 5 calendar days from Monday is Saturday. Code of Civil Procedure § 12(a) states that if the last day to respond is on a Saturday, Sunday or other court holiday then the time period to respond is extended to and includes the next day that is not a holiday. That means that the defendant will actually have 7 calendar days to respond.

Code of Civil Procedure § 12(a) states that, “If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday. For purposes of this section, “holiday” means all day on Saturdays, all holidays specified in Section 135 and, to the extent provided in Section 12b, all days that by terms of Section 12b are required to be considered as holidays.”

The second best day to schedule any responsive motion in a California eviction is Tuesday because 5 calendar days from Monday is Sunday. That means the defendant will actually have 6 calendar days to respond.

In my opinion every defendant in a California eviction should schedule the hearing on their motion whenever possible on a Monday or Tuesday. However I also realize that is not always possible.

The third best day to schedule a responsive motion in a California eviction is Friday because that means the 5 calendar days does not end until Wednesday meaning that the defendant not only has over the weekend to work on their response but does not have to file the response until Wednesday before the clerk’s office closes.  Wednesday and Thursday are also okay but not as advantageous, at least in my personal opinion.

Another important issue to consider is to avoid scheduling any demurrer or motion to strike more than 35 calendar days from the date of filing and service of the motion unless that is the earliest date the clerk will give you. That is because most Judges will assume that your demurrer or motion to strike were only filed to delay the eviction and they may not only overrule your demurrer or deny your motion to strike but they may even sanction you. I cannot stress this enough. Do NOT schedule a demurrer or motion to strike for more than 35 calendar days from the date of filing and service unless the clerk tells you that is the earliest date they can give you and believe me that rarely happens.

Attorneys or parties in California that would like more information on a California eviction litigation document package containing over 25 sample documents created and sold by the author of this blog post can use the link shown below.

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

To view over 300 sample legal documents for California and Federal litigation created by the author of this blog post visit: 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 300 sample legal documents for California and Federal litigation.

*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://www.legaldocspro.net/newsletter.htm 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://legaldocspro.net

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 evictions, California legal topics, California unlawful detainer | Tagged , , , , , , | Leave a comment

The Monterrosa v. Superior Court California Court of Appeal decision

The Monterrosa v Superior Court California Court of Appeal decision issued on June 12, 2015 is the topic of this blog post.

This decision which has been certified for publication involved the interpretation of a key provision of the Homeowner’s Bill of Rights in California which took effect on January 1, 2013.

The California Court of Appeal decision reversed the decision of the trial court and involved petitioners Michael Monterrosa and Cheranne Nobis who had filed an filed an ex parte application for a temporary restraining order (TRO) and a request for issuance of an order to show cause regarding a preliminary injunction, seeking to prevent the trustee’s sale of their residence, which was then scheduled for April 21, 2014.

The superior court issued an order on May 8, 2014, granting petitioners’ motion for a preliminary injunction enjoining the trustee’s sale of petitioners’ home, with certain conditions. The petitioners then filed a motion for attorney fees and costs. After a hearing, the superior court denied the motion, stating that the language of the applicable statute was consistent with the award of attorney fees at the conclusion of the action; statutory attorney fees were awardable only at the end of the case; and the statute did not specifically provide for an interim award of attorney fees upon the granting of provisional relief such as a preliminary injunction.

The petitioners then filed a petition for writ of mandate seeking an order to direct the superior court to grant their motion for attorney fees and costs. After review, the Court of Appeal concluded the superior court had erred when it concluded that petitioners were not prevailing borrowers because they obtained only a preliminary rather than permanent injunction, stating that “[A] borrower who obtains a preliminary injunction enjoining, pursuant to section 2924.12, the trustee’s sale of his or her home is a ‘prevailing borrower’ within the meaning of the statute.” The case was then remanded for consideration on the merits, and costs were awarded to the petitioners for the writ proceeding.

This case is another huge win for California homeowners facing foreclosure in that once the case becomes final within 30 days it may be cited in a memorandum of points and authorities. The case will become final on July 12, 2015 unless the respondents in this case, namely PNC Bank, et al, file a petition for rehearing with the Court of Appeal, request that the case be depublished or file a petition for review with the California Supreme Court on or before that date.

To view the slip opinion of this case on Justia visit:

http://law.justia.com/cases/california/court-of-appeal/2015/c077683.html


 

To view the slip opinion of this case on Google Scholar visit:

https://scholar.google.com/scholar_case?case=1223976387449636564&q=homeowners+bill+of+rights&hl=en&scisbd=2&as_sdt=4,5


 

To view over 300 sample legal documents for California and Federal litigation created by the author of this blog post visit: 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 300 sample legal documents for California and Federal litigation.

*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://www.legaldocspro.net/newsletter.htm 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://legaldocspro.net

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

California law and motion sample document collection

California law and motion sample document collection with over 55 documents with a list price of well over $1,000.00 but you can purchase the entire collection for only $99.99 which is a discount of over 80% off! That is less than $2.00 per document!

Documents included are demurrers, motions to strike, motions to quash, oppositions and more. All motions and oppositions include brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, declaration if appropriate and proof of service.   A partial list of the documents included in this collection is shown below.

DESCRIPTION:

A partial list of the sample legal documents for California that are included in this package includes:

Sample California Motion for Judgment on the Pleadings for Defendant

Sample California Motion for Judgment on the Pleadings for Plaintiff

Sample California motion for reconsideration

Sample California Motion to Compel further responses to Requests for Documents

Sample California renewal of motion under Code of Civil Procedure section 1008(b)

Sample California reply to opposition to motion

Sample California special motion to strike

Sample Demurrer to Answer for California

Sample Demurrer to California Complaint for Breach of Contract

Sample Demurrer to Complaint for Lack of Standing in California

Sample Demurrer to Fraud Complaint for California

Sample Evidentiary Objections for California

Sample Ex-Parte Application for Temporary Restraining Order in California

Sample Ex-Parte Motion for California

Sample Ex-Parte Motion to Shorten Time for hearing in California

Sample Meet and Confer Letter for California

Sample Motion for Assignment Order for California

Sample Motion for Change of Venue for California

Sample Motion for Further Bill of Particulars for California

Sample motion for judgment notwithstanding the verdict for California

Sample Motion for Leave to Amend a pleading in California

Sample Motion for Leave to File Cross-Complaint in California

Sample Motion for Order Taxing Costs in California

Sample Motion for Terminating Sanctions in California

Sample Motion for Withdrawal of Admissions for California

Sample Motion to Amend Judgment for California

Sample Motion to Compel Further Responses to Special Interrogatories for California

Sample Motion to Compel Production of Documents for California

Sample Motion to Compel Responses to Requests for Production of Documents

Sample Motion to Compel Responses to Special Interrogatories for California

Sample Motion to Enforce Settlement Agreement for California

Sample Motion to Have Matters Deemed Admitted for California

Sample Motion to Quash Service for California under Code of Civil Procedure section 418.10

Sample Motion to Quash Service for Lack of Jurisdiction for California

Sample Motion to Strike Answer to a Complaint for California

Sample Motion to Strike for California

Sample Motion to Vacate California Default Judgment with Attorney Affidavit of Fault

Sample Motion to Vacate Default Judgment for Extrinsic Fraud or Mistake in California

Sample Motion to Vacate Judgment and Quash Service for California

Sample Motion to Vacate Judgment Under CCP Section 473 for California

Sample Motion to Vacate Judgment Under CCP Section 473.5 for California

Sample Motion to Vacate Void Judgment in California

Sample Notice of Intention to Introduce oral testimony for California

Sample Notice of Non-Appearance at Hearing for California

Sample Notice of Ruling for California

Sample Opposition to Application for Right to Attach Order in California

Sample Opposition to California Motion for New Trial

Sample Opposition to Demurrer for California

Sample Opposition to Heggstad Petition for California

Sample opposition to motion for judgment notwithstanding the verdict for California

Sample Opposition to Motion for Judgment on the Pleadings

Sample opposition to motion for reconsideration in California

Sample Opposition to Motion for Summary Judgment in California

Sample Opposition to Motion to Dismiss on Grounds of Inconvenient Forum

Sample Opposition to Motion to Strike for California

Sample opposition to motion to vacate default judgment under Section 473 in California

Sample opposition to motion to vacate default under section 473.5 in California

Sample Points and Authorities in Support of Application for a Right to Attach Order

Sample Request for Judicial Notice for California

 

California law and motion document collection

Posted in California civil litigation, California freelance paralegal, California legal topics, law and motion | Tagged , , , , , | Leave a comment

The Ellis Act in California

The Ellis Act in California is the topic of this blog post. The Ellis Act provisions are found in   Government Code sections 7060 through 7060.7 and are a state law which provides that landlords have the unconditional right to evict tenants to essentially go out of business.

For an Ellis Act eviction, the landlord must remove all of the units in the building from the rental market, this means that the landlord must evict all the tenants and can not single out that one tenant who may be paying a lower rent than every other tenant and/or remove just one unit from the rental market.

In the inevitable struggle between the right of a landlord to own and use their property as they wish to, and the right of a tenant to maintain their tenancy without interference from the landlord, California and, more particularly, the San Francisco Bay Area has been a battle ground for decades.

This battle has been fueled by a very expensive real estate market which encourages real estate investment and a growing population needing housing, a shortage of affordable housing has become a constant refrain of governments, tenant groups and proponents of restrictions on rent such as rent control and subsidized housing.

The legal restrictions on condominium conversion have resulted in a vibrant new market for joint living arrangements in the same building which are not condominiums but consist of multiple tenants in common occupying the same building. Tenancies in common are much cheaper and are much less subject to governmental scrutiny therefore they have been increasing in numbers drastically in the last decade or so and are now moving outside of the San Francisco Bay Area.

Tenants in California, particularly in the Bay Area and San Francisco in particular will find the information in this blog post useful as knowing your rights gives you the power to assert those rights.

When a landlord invokes the provisions of the Ellis Act, the apartments can not be re-rented, except at the same rent the evicted tenant was paying, for five years following the evictions. While there are restrictions on ever re-renting the units, there are no such restrictions on converting them to ownership units such as tenancies in common or condos.

In most cases Ellis Act evictions are used to change the planned use of the building. Most Ellis evictions are used to convert rental units to condominiums or tenancies in common. Also, the Ellis Act is used to convert multi-unit buildings into large single family homes, basically McMansions.

There are two simultaneous actions that a landlord must take to (1) legally and properly evict the tenants and (2) legally remove the building from the rental market.

The courts in California have ruled that the tenant’s eviction notice period can not expire before the building is considered withdrawn from the rental market. A building is considered withdrawn 120 days after the landlord files a Notice of Intent to Withdraw Units. During the 120 day period, the withdrawal remains only an intent and the landlord retains the option of changing their mind. In 120 days, the intent becomes a fact and the buildings is considered Ellised or withdrawn with the Ellis restrictions then filed at the County Recorder.

Ellis Procedure is as follows:

1.  The landlord issues all tenants eviction notice effective 120 days after the landlord files the Notice of Intent (see item 2 below).

2.  Landlord files Notice of Intent To Withdraw Units From The Rental Market with the Rent Board. Note how these work closely together. In other words if the landlord serves the eviction notice and files the Notice of Intent simultaneously the same day for example, then the eviction notice can be 120 days. If the eviction notice is given on July 1 and the Notice of Intent is filed July 10, it must be a 130 day notice. All Tenants facing an Ellis eviction need to carefully determine the exact date when the Notice of Intent is filed since any deficiencies or discrepancies can be objected to in Court. In other words, the eviction notice can not expire before the building is withdrawn. I also want to point out that the adequacy of the Notice of Intent is no longer assessed by the Rent Board but instead is determined by the courts as part of the Unlawful Detainer process if such legal action becomes necessary. In California most courts are very strict in enforcing the provisions of the notice requirements.

3.  Within 15 days of filing Notice of Intent, landlord informs tenants in writing that the Notice of Intent was filed and of the tenants’ reoccupancy and relocation rights. The landlord usually does this in the eviction notice itself. The Rent Board at some point in the process will also inform tenants of the filing, relocation rights and reoccupancy rights (as well as a form).

4.  Within 120 days of the filing of the Notice of Intent, the landlord records with the County Recorder a Memorandum summarizing the Notice of Intent.

5. 120 days after the Notice of Intent is filed with the Rent Board, the building is considered legally removed from the rental market.

6.  Once the building is legally withdrawn from the rental market, in other words once 120 days have passed after filing of the Notice of Intent, the landlord can initiate Unlawful Detainer procedures.

7.  The Rent Board records Ellis constraints at County Recorder within 30 days of withdrawal (within 150 days of the landlord filing of the Notice of Intent).

Key Rights of Tenants After Ellis

I want to stress that local laws in many locations in California may require additional protections for tenants facing an Ellis act eviction so tenants are advised to check their local laws.

Eviction of Tenants under Ellis

Ellis Act evictions require a one year notice for seniors over the age of 62 and disabled tenants who have lived in their accommodations for at least one (1) year prior to the date of delivery to the public entity of the notice of intent to withdraw and 120 days for all others. The tenant must give written notice to the building owner within 60 days of his or her entitlement to an extension to the owner within 60 days of the date of delivery to the public entity of the notice of intent to withdraw. See Government Code Section 7060.4(b).

Moving Expenses  

In some cases local rent control laws may provide for relocation benefits for owner or family occupancy evictions so tenants should check their local laws.

Contents of Notice of Intent

The owner must serve tenants with notices of termination of tenancies requiring the tenants to quit the premises on the effective date of withdrawal, which is 120 days after the Notice of Intent is filed with the Rent Board.

Many cities in California, particularly cites with strong rent control laws require additional rights to be offered to existing tenants, such as the first right to purchase the condominium or tenancy in common, etc. And many times the Notice itself must clearly delineate those rights.

The Ellis Act procedure is very complicated so any tenants facing an Ellis eviction should carefully review the statutes that comprise the Ellis Act to make sure that the owner is strictly complying with all requirements, particularly the notice requirements.

To view over 300 sample legal documents for California and Federal litigation created by the author of this blog post visit: 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 300 sample legal documents for California and Federal litigation.

*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://www.legaldocspro.net/newsletter.htm 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://legaldocspro.net

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 evictions, California freelance paralegal, California legal topics, California unlawful detainer, Uncategorized | Tagged , , , , , | Leave a comment