California Marital Settlement Agreement

June 3rd, 2010

This blog post will discuss the use of a marital settlement agreement (MSA) in California. MSA’s are widely used in uncontested divorces in California in order that the divorce can be entered without either party actually having to appear in Court.

 An MSA in California is used by spouses in a dissolution (divorce) action in an attempt to resolve their contested disputes and claims. A comprehensive marital settlement agreement usually provides for all of the following:

Characterization of property interests and characterization and division of the community estate (assets and debts);

Adjustment of reimbursement claims and income tax issues;

Payment of child support, spousal support and attorney fees and costs;

Child custody and visitation; and

Certain waivers and indemnification agreements between the spouses.

Exchange of statutorily-required “preliminary” and “final” “declarations of disclosure”   (Ca Fam § 2100 et seq.) is an essential step toward the consummation of an effective MSA and entry of judgment thereon.

An exchange of prescribed “preliminary” disclosure declarations is mandatory and nonwaivable. (Ca Fam § 2104).

And, unless excused by the court for good cause, “final” declarations of disclosure must be exchanged before or at the time the parties enter into an agreement resolving property or support issues (Ca Fam § 2105(a). If the mandatory declarations of disclosure are not exchanged the MSA is invalid and will not be accepted by the Court. This cannot be stressed enough.

While, subject to statutory conditions, the parties may stipulate to a waiver of the final declarations of disclosure, the waiver does not limit their underlying fiduciary disclosure obligations–i.e., it simply amounts to a representation that those disclosures have been made (see Ca Fam § 105(d).)

Since the facts and circumstances of each case vary, where the issues involved include, custody, visitation, support, property division, debt division, or other similar issues,  a marital settlement agreement should be carefully drafted to meet the needs of the particular parties involved.

The typical contents of an MSA include:

Identity of parties and recital of facts (including statistical facts of the marriage).

Identity of property, distribution of community estate, and confirmation of separate property.

Provision for payment of debts and adjustment of reimbursement claims.

Custody of children and visitation rights.

Child support, including provision for medical, dental, and special educational or other needs (if any); and, if applicable, including agreementas to the support of adult children.

Spousal support (including, as applicable, provisions for life insurance, survivor annuities, and the like); or waiver of spousal support.

Attorneys’ and experts’ fees and costs.

Tax provisions.

Effect of reconciliation.

Judicial action contemplated.

Warranties.

After-discovered property.

Waiver of rights, including rights in deceased spouse’s estate.

Modification, revocation or termination.

Costs of enforcement.

Execution of related documents.

Effective date.

Choice of law.

“Severability” clause.

Execution by parties.

Marital settlement agreements are considered to “occupy a favored position” in California law. Generally, therefore, an MSA that is “not tainted by fraud or compulsion or is not in violation of the confidential relationship of the parties is valid and binding on the court.” However there are some limitations which must be kept in mind when drafting an MSA.

Child Support:

Marital settlement agreements cannot abridge the parents’ mutual statutory child support obligation or impinge on the court’s jurisdiction to award child support. This means that an MSA cannot contain a provision in which one party “waives” child support. The issue of child support can be “reserved” which means that the Court retains jurisdiction to order child support in the future, but it can never be waived.

Child Custody:

 Marital settlement agreements cannot limit a court’s exercise of custody jurisdiction over the minor children of the marriage.

Religious Upbringing:

To the extent a marital settlement agreement purports to prescribe the religious upbringing of the parties’ minor children, it is probably unenforceable. Marriage of Weiss (1996) 42 Cal.App.4th 106, 114-115, 118.

Spousal Support Waivers:

 here is no prohibition against a waiver of post-dissolution spousal support. If the spouses separate by agreement, neither owes the other a duty of support unless they otherwise agree (Ca Fam § 4302); and any right to support after dissolution exists, if at all, only under the terms of the judgment. Thus, a voluntary, knowing and intelligent waiver of support in a marital settlement agreement will be enforced according to its terms. Note that a waiver of spousal support for a “long-term” marriage of ten years or more must be clear and unequivocal.

Fiduciary Obligations Of The Parties Must Be Respected:

The “confidential relationship” between spouses carries attendant fiduciary obligations in intraspousal transactions and in the management and control of the community estate (Ca Fam § 721(b), 1100(e).  All “confidential relationship”/fiduciary duties (including broad disclosure obligations) continue postseparation until the community estate is distributed and support and professional fee issues are resolved.  Ca Fam § 2102, 1100(e).

Compliance With General Contract Law:

Subject to limited statutory exceptions, marital settlement agreements (like all spousal contracts) must comply with general principles of contract law. The contract law defenses include (among other things) mistake, failure of consideration, unlawfulness of the contract and prejudice to the public interest (Ca Civil § 1689).  Other general contract concepts which may be relevant in drafting or enforcing a marital settlement agreement are:

Voluntary And Knowing Consent:

Each party’s consent must be voluntary and knowledgeable, given free of fraud, undue influence, duress, menace, or mistake. (Ca Civil § 1566-1579).

Attorneys or parties in the State of California who wish to purchase a sample marital settlement agreement in Word format can click below.

http://www.scribd.com/doc/26494990/Sample-Marital-Settlement-Agreement-for-California

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 14 years of experience in California Divorce Litigation including the drafting of marital settlement agreements. If you are in need of assistance with California Divorce 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 and Google Checkout which means that you can pay using a credit or debit card. For more information: http://www.legaldocspro.net

Stan Burman-Registered Legal Document Assistant
Registration Number LDA-83
County of Orange
Registration Expires 12/31/2010

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Requests for Admission in California

May 11th, 2010

This blog post will discuss the use of requests for admission in California civil litigation.

Requests for admission are a vital tool for getting certain admissions or denials of issues relevant to the lawsuit on record before the trial, as well as authenticating certain documents. There are two types of requests for admission, truth of facts, and genuineness of documents.

The rules governing requests for admission are found in Code of Civil Procedure § 2033.010, et seq.

Code of Civil Procedure § 2033.010 states that, “Any party may obtain discovery within the scope delimited by Chapters 2 (commencing with Section 2017.010) and 3 (commencing with Section 2017.710), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.”

A defendant may propound requests for admission at any time, however a plaintiff may not do so until at least ten (10) days have passed since service of the summons on the defendant, or the general appearance by the defendant, whichever occurs first.  See Code of Civil Procedure § 2033.020.

There is a numerical limit of thirty five (35) on the number of requests for admission as to the truth of facts. However if a supporting declaration stating that any additional requests for admission are warranted due to the complexity of the case and other certain factors is attached, then any party may propound additional requests for admission.  There is no numerical limit on requests for admission of the genuineness of documents except as justice requires to protect the responding party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense.  See Code of Civil Procedure §§ 2033.030 and 2033.050.  These rules only apply in an unlimited civil case, in which the amount being demanded in the lawsuit is more than $25,000.

There are certain format restrictions on requests for admission.  No request for admission may contain subparts, or a compound, conjunctive or disjunctive question.  See Code of Civil Procedure § 2033.060.  This means that a request for admission cannot contain part a, b, c, etc., nor can it contain a question with more than one part, and it cannot contain the word “and” which is conjunctive, it also cannot contain the word “or” which is disjunctive.  Although many requests for admission do violate these format rules any party using such a format runs the risk of the opposing party objecting on those grounds.

The California courts have ruled that the scope of discovery in California civil litigation is very broad. Any doubts are applied liberally in favor of discovery.

For discovery purposes, information is relevant if it might reasonably assist a party in evaluating case, preparing for trial, or facilitating settlement. Gonzalez v. Superior Court (City of San Fernando (1995) 33 Cal.App.4th 1539, 1546.

Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.  Davies v. Superior Court (1984) 36 Cal.3d 291, 301

These rules are applied liberally in favor of discovery.  Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790, and (contrary to popular belief), fishing expeditions are permissible in some cases. Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 385, (“although fishing may be improper or abused in some cases, that “is not of itself an indictment of the fishing expedition per se”.)

Requests for admission are very useful in that they allow a party to get certain admissions or denials of issues relevant to the lawsuit on record before the trial, as well as authenticating certain documents.

Attorneys or parties to civil litigation in California who wish to purchase sample requests for admission for use in an unlimited civil case can click below.

http://www.scribd.com/doc/31182487/Sample-Requests-for-Admission-for-California

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 14 years of experience in California civil litigation. If you are in need of assistance with any discovery matters in California civil litigation, 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 and Google Checkout which means that you can pay using most credit cards.

Stan Burman-Registered Legal Document Assistant
Registration Number LDA-83
County of Orange
Registration Expires 12/31/2010

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Special Interrogatories in California

May 10th, 2010

This blog post will discuss the use of special interrogatories in California civil litigation.

Special interrogatories are a vital tool for obtaining the facts, witnesses and documents on which a contention is based so they can be reviewed.

The rules governing special interrogatories are found in Code of Civil Procedure § 2030.010, et seq.

Code of Civil Procedure § 2030.010 states that, “(a) Any party may obtain discovery within the scope delimited by Chapters 2 (commencing with Section 2017.010) and 3 (commencing with Section 2017.710), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by propounding to any other party to the action written interrogatories to be answered under oath. (b) An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.”

A defendant may propound special interrogatories at any time, however a plaintiff may not do so until at least ten (10) days have passed since service of the summons on the defendant, or the general appearance by the defendant, whichever occurs first.  See Code of Civil Procedure § 2030.020.

There is a numerical limit of thirty five (35) on the number of special interrogatories. However if a supporting declaration stating that any additional interrogatories are warranted due to the complexity of the case and other certain factors is attached, then any party may propound more additional special interrogatories.  See Code of Civil Procedure §§ 2030.030 and 2030.050. These rules only apply in an unlimited civil case, in which the amount being demanded in the lawsuit is more than $25,000.

There are certain format restrictions on special interrogatories. No special interrogatory may contain subparts, or a compound, conjunctive or disjunctive question.  See Code of Civil Procedure § 2030.060.  This means that a special interrogatory cannot contain parts a, b, c, etc., nor can it contain a question with more than one part, and it cannot contain the word “and” which is conjunctive, it also cannot contain the word “or” which is disjunctive. Although many special interrogatories do violate these format rules any party using such a format runs the risk of the opposing party objecting on those grounds.

While depositions are also a vital tool they have limitations, particularly the fact that deposition questions may not ask party deponent to state all facts, list all witnesses and identify all documents that support or pertain to particular contention in that party’s pleadings, although that information is discoverable when sought by written interrogatory.  Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, 1257. (Emphasis added.)

The California courts have ruled that the scope of discovery in California civil litigation is very broad. Any doubts are applied liberally in favor of discovery.

For discovery purposes, information is relevant if it might reasonably assist a party in evaluating case, preparing for trial, or facilitating settlement. Gonzalez v. Superior Court (City of San Fernando (1995) 33 Cal.App.4th 1539, 1546.

Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. Davies v. Superior Court (1984) 36 Cal.3d 291, 301

These rules are applied liberally in favor of discovery.  Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790, and (contrary to popular belief), fishing expeditions are permissible in some cases. Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 385, (“although fishing may be improper or abused in some cases, that “is not of itself an indictment of the fishing expedition per se”.)

Special interrogatories are very useful in that they allow a party to obtain the facts, witnesses and documents that support the opposing party’s claims or defenses.

Attorneys or parties to civil litigation in California who wish to purchase sample special interrogatories for use in an unlimited civil case can click below.

http://www.scribd.com/doc/26010380/Sample-Special-Interrogatories-to-Plaintiff

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 14 years of experience in California civil litigation. If you are in need of assistance with any discovery matters in California civil litigation, 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 and Google Checkout which means that you can pay using most credit cards.

Stan Burman-Registered Legal Document Assistant
Registration Number LDA-83
County of Orange
Registration Expires 12/31/2010

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Motion to Enforce Settlement Agreement in California

March 31st, 2010

This blog post will discuss filing a motion to enforce settlement agreement in California. The motion is made under Code of Civil Procedure § 664.6 and is filed by a party seeking to enforce a settlement agreement entered into in any pending litigation in California.

Code of Civil Procedure § 664.6 states that, “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”

This means that if a settlement is reached in a pending civil case in California, and the parties have signed a written settlement agreement, or have stipulated to a settlement in open court, and one party does not comply with the terms of the settlement agreement, than the other party can file a motion to request that the court enter judgment pursuant to the terms of the settlement agreement under Code of Civil Procedure § 664.6.

The procedure provided by Section 664.6 applies where settlement is reached in pending litigation. The statute states that any written agreement outside court must be signed by the parties. This has been interpreted by the Courts to mean that the settlement must be signed by both the party seeking to enforce the settlement and the party against whom it is to be enforced.

So long as the terms of the settlement are sufficiently definite to enable the courts to give it an exact meaning, the court is authorized to enter judgment on the settlement. A settlement agreement that incorporates other documents can be enforced pursuant to section 664.6 if there was a meeting of the minds regarding the terms of the incorporated documents.

Moreover, disputes regarding the terms of the settlement itself may be adjudicated on a section 664.6 motion on the basis of declarations or evidence. And in a ruling on a motion under section 664.6, the trial judge may receive oral testimony, documentary testimony or declarations.

Section 664.6 also empowers the judge hearing the motion to determine disputed factual issues that have arisen regarding the settlement agreement.If the terms of the settlement agreement provide that any party seeking to enforce the terms of the settlement agreement who prevails is entitled to attorney fees and costs, than the prevailing party on any motion to enforce settlement agreement is entitled to recover their attorney fees and costs incurred in bringing or defending the motion.

Attorneys or parties in California who would like to purchase a sample motion to enforce settlement agreement can click below to purchase a sample motion complete with a memorandum of points and authorities with full citations to case and statutory authority, and a sample declaration.

http://www.scribd.com/doc/29073574/Sample-Motion-to-Enforce-Settlement-Agreement-for-California

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with more than 14 years of experience in civil litigation in California Courts. If you are in need of assistance with any civil litigation, 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 and Google Checkout which means that you can pay using a credit or debit card.

Stan Burman-Registered Legal Document Assistant
Registration Number LDA-83
County of Orange
Registration Expires 12/31/2010

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Request for production of documents in California

March 19th, 2010

This blog post will discuss the use of requests for production of documents in California civil litigation. Requests for production of documents are a vital tool for obtaining the documents that support the opposing party’s claims or defenses so they can be reviewed. Demanding production and inspection of documents and tangible things, as well as entering onto land for inspection and other purposes is permitted under the Code of Civil Procedure in California.

The rules governing requests for production of documents are found in Code of Civil Procedure § 2031.010, et seq.

Code of Civil Procedure

§ 2031.010 states that, “(a) Any party may obtain discovery within the scope delimited by Chapters 2 (commencing with Section 2017.010) and 3 (commencing with Section 2017.710), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action. (b) A party may demand that any other party produce and permit the party making the demand, or someone acting on that party’s behalf, to inspect and to copy a document that is in the possession, custody, or control of the party on whom the demand is made. (c) A party may demand that any other party produce and permit the party making the demand, or someone acting on that party’s behalf, to inspect and to photograph, test, or sample any tangible things that are in the possession, custody, or control of the party on whom the demand is made. (d) A party may demand that any other party allow the party making the demand, or someone acting on that party’s behalf, to enter on any land or other property that is in the possession, custody, or control of the party on whom the demand is made, and to inspect and to measure, survey, photograph, test, or sample the land or other property, or any designated object or operation on it. (e) A party may demand that any other party produce and permit the party making the demand, or someone acting on that party’s behalf, to inspect, copy, test, or sample electronically stored information in the possession, custody, or control of the party on whom demand is made.”

A defendant may propound a request for production of documents at any time, however a plaintiff may not do so until at least ten (10) days have passed since service of the summons on the defendant, or the general appearance by the defendant, whichever occurs first.  See Code of Civil Procedure § 2031.020.

There is no numerical limit to the number of requests but a party served with excessive requests may seek leave of court to limit the number of requests.

The California courts have ruled that the scope of discovery in California civil litigation is very broad. Any doubts are applied liberally in favor of discovery.

For discovery purposes, information is relevant if it might reasonably assist a party in evaluating case, preparing for trial, or facilitating settlement. Gonzalez v. Superior Court (City of San Fernando (1995) 33 Cal.App.4th 1539, 1546.

Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. Davies v. Superior Court (1984) 36 Cal.3d 291, 301

These rules are applied liberally in favor of discovery. Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790, and (contrary to popular belief), fishing expeditions are permissible in some cases. Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 385, (“although fishing may be improper or abused in some cases, that “is not of itself an indictment of the fishing expedition per se”.)

Requests for production and inspection of documents and tangible things are very useful in that they allow a party to review in detail all relevant documents and tangible things that support the opposing party’s claims or defenses.

Attorneys or parties to civil litigation in California who wish to purchase a sample request for production of documents for use by a defendant in an unlimited civil case can click below.

http://www.scribd.com/doc/27177826/Sample-Request-for-Production-of-Documents-to-Plaintiff

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 14 years of experience in California civil litigation.  If you are in need of assistance with any discovery matters in California civil litigation, 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 and Google Checkout which means that you can pay using most credit cards.

Stan Burman-Registered Legal Document Assistant
Registration Number LDA-83
County of Orange
Registration Expires 12/31/2010

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Motion to Vacate Default Judgment under Section 473.5 in California

March 16th, 2010

This blog post will outline the issues involved for a defendant filing a motion to vacate a default and/or default judgment in California under Code of Civil Procedure 473.5 on the grounds that the service of the summons and complaint did not result in actual notice to them in time to defend the lawsuit, and that their lack of actual notice was not caused by their avoidance of service or inexcusable neglect.

The time limit for filing a motion under Section 473.5 is substantially longer than the six months allowed by Section 473.

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 o f : (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.”

There are many reasons that someone may not have received actual notice of a lawsuit, including the fact that substitute service may have been used at an address at which that person no longer lives, someone may have forgotten to give the defendant the summons and complaint, etc. The statutory provisions for substituted service must be strictly complied with, and the statutory conditions upon which such service depends will be strictly construed. This means that if substituted service has been used and the procedures were not strictly followed, then the Court will be much more likely to grant the motion to vacate.

And the substituted service must be made at the address where the defendant currently lives, even service made at a close relative’s house can be ineffective.

Substituted service to estranged wife’s parents’ address in action against husband and wife for breach of restaurant equipment lease was ineffective despite parents’ address appearing on her driver’s license where wife had established separate legal household.  See Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1416-1417.

And a plaintiff has to first attempt to personally serve a defendant with the summons and complaint before attempting substituted service, or any other form of what is called “constructive service” including service by publication.

In order to qualify for relief from default and/or judgment under Section 473.5 the moving party must show that they:  (1) timely moved the Court for relief from default and/or judgment,  (2) did not receive actual notice of the lawsuit in time to defend the action,  (3) make a sufficient showing that their lack of actual notice was not due to avoidance of service or inexcusable neglect, and (4)  provide a copy of their proposed pleading along with their motion.  Only then have they met all of the statutory conditions necessary for the Court to set aside the default and/or judgment entered against them.

Numerous decisions of the California Supreme Court have stated that the law favors disposing of cases on their merits, and that any doubts must be resolved in favor of the party seeking relief from default.  The California Supreme Court has also stated that when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court’s order setting aside a default.

Attorneys or parties in California who would like to purchase a sample motion to vacate default judgment under Section 473.5 can click below to purchase a sample motion complete with a memorandum of points and authorities with full citations to case and statutory authority and a sample declaration.

http://www.scribd.com/doc/25742413/Sample-Motion-to-Vacate-Judgment-Under-CCP-Section-473-5-for-California

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 14 years of experience in civil litigation in California Courts.  If you are in need of assistance with any civil litigation, 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 and Google Checkout which means that you can pay using a credit or debit card.

Stan Burman-Registered Legal Document Assistant
Registration Number LDA-83
County of Orange
Registration Expires 12/31/2010

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Posted in California civil litigation, California freelance paralegal, California legal document assistant | No Comments »

Motion to Vacate Default Judgment under Section 473 in California

March 16th, 2010

This blog post will outline the issues involved for a defendant filing a motion to vacate a default and/or default judgment in California under California Code of Civil Procedure Section 473 on the grounds of mistake, inadvertance, surprise or excusable neglect.

California Code of Civil Procedure § 473 states in pertinent part that: “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.  Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

Note that there are many reasons that someone may not have filed an answer to a complaint in time.  For example a person may have been properly served with the summons and complaint, but may have mislaid the paperwork.  A California Court of Appeal has ruled that evidence that the defendant mislaid or misfiled the papers, and as a result failed to contact a lawyer in time, may show “excusable” neglect.  See Bernards v. Grey (1950) 97 Cal.App.2d 679, 683-686.

In order to qualify for relief from default and/or judgment under Section 473 the moving party must show that they:  (1) timely moved the Court for relief from default, (2) make a sufficient showing of mistake, inadvertance, surprise or excusable neglect, (3) and provide a copy of their proposed pleading along with their motion.  Only then have they met all of the statutory conditions necessary for the Court to set aside the default and/or judgment entered against them.

Numerous decisions of the California Supreme Court have stated that the law favors disposing of cases on their merits, and that any doubts must be resolved in favor of the party seeking relief from default.  The California Supreme Court has also stated that when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court’s order setting aside a default.

The main issue that someone in default must understand is that they must move promptly to have any default and/or judgment entered against them vacated.  The sooner they file their motion the better as Section 473 requires the motion, “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”  So instead of thinking that they have six months and can afford to take their time, they need to think that the most time they are allowed is six months, and the sooner their motion to vacate is filed the better.

Attorneys or parties in California who would like to purchase a sample motion to vacate default judgment under Section 473 can click below to purchase a sample motion complete with a memorandum of points and authorities with full citations to case and statutory authority and a sample declaration.

http://www.scribd.com/doc/25745133/Sample-Motion-to-Vacate-Judgment-Under-CCP-Section-473-for-California

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 14 years of experience in civil litigation in California Courts.  If you are in need of assistance with any civil litigation, 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 and Google Checkout which means that you can pay using a credit or debit card.

Stan Burman-Registered Legal Document Assistant
Registration Number LDA-83
County of Orange
Registration Expires 12/31/2010

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Posted in California civil litigation, California freelance paralegal, California legal document assistant, Uncategorized | No Comments »

Petition to Compel Arbitration in California

March 15th, 2010

This blog post will outline the issues involved for a party who wishes to file a petition to compel arbitration in California. Many agreements and contracts now include an arbitration provision providing that all disputes, or in some cases certain disputes shall be sent to arbitration. The California Code of Civil Procedure has provisions relating to a petition to compel arbitration.

The primary purpose of arbitration is to provide a speedy and relatively inexpensive means of dispute resolution.

California Code of Civil Procedure § 1281.2 states in pertinent part that:  “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy, and that a party thereto refuses to arbitrate the controversy, the court shall order the parties to so arbitrate if it determines that such an agreement exists.” 

Thus the statutes in California provide a procedure by which a party who wishes to submit a dispute to arbitration can petition the court to compel the other party to arbitrate the dispute, provided that a valid agreement exists with a provision that certain disputes, or in some cases all disputes, shall be arbitrated. The statutes regarding arbitration state that the party seeking to compel arbitration has the burden of proving that a written agreement to arbitrate exists.

California Code of Civil Procedure § 1281.2 states in pertinent part that, “When a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must decide whether the agreement exists, and if any defense to its enforcement is raised, whether the agreement is enforceable. Because existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.”

The case law in California is clear that there is a strong public policy in favor of arbitration, and that any doubts as to the scope of an agreement to arbitrate are to be resolved in favor of arbitration.  However, a party can be compelled to arbitrate only those issues it has agreed to arbitrate.

The California Supreme Court has stated that it is well established that under California law there is a strong public policy in favor of arbitration.  See Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 971-972

And a California Court of Appeal has also stated that any doubts as to the scope of an agreement to arbitrate are to be resolved in favor of arbitration. See Hayes Children Leasing Co. v. NCR Corp.(1995) 37 Cal.App.4th 775, 788.

Attorneys or parties in California who would like to purchase a sample petition to compel arbitration can click below to purchase a sample motion complete with a memorandum of points and authorities with full citations to case and statutory authority and a sample declaration.

http://www.scribd.com/doc/27239005/Sample-Petition-to-Compel-Arbitration-for-California

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 14 years of experience in civil litigation in California Courts.  If you are in need of assistance with any civil litigation, 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 and Google Checkout which means that you can pay using a credit or debit card.

Stan Burman-Registered Legal Document Assistant
Registration Number LDA-83
County of Orange
Registration Expires 12/31/2010

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Motion for Judgment on the Pleadings by Plaintiff in California

March 14th, 2010

This blog post will outline the issues involved for a plaintiff filing a motion for judgment on the pleadings in California.

California Code of Civil Procedure  § 438 states in pertinent part that, “A party may move for judgment on the pleadings on the following grounds, if the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.”

 A motion for judgment on the pleadings has the same function as a general demurrer but can be made after the time for demurrer has expired.  Except as provided by statute, the rules governing demurrers apply.  Note that a motion for judgment on the pleadings may not be made on the grounds of uncertainty or any other ground for special demurrer.

Thus, the rules for pleading that are so commonly used in demurrers to complaints are also applicable to motions for judgment on the pleadings directed to a complaint as well as demurrers to answers. Significantly, a pleading must allege facts and not mere conclusions.

In FPI Development, Inc vs. A1 Nakashima, (1991) 231 Cal.App.3d 367, 384,  the court held that the affirmative defenses pled in an answer to a complaint must be pled in the same fashion, and with the same specificity, as a cause of action in a complaint.

Therefore if the answer consists, as most do, of “boilerplate” affirmative defenses, then filing a motion for judgment on the pleadings is the correct procedure, if the time to file a demurrer to the answer has expired.  Note that the time period for filing a demurrer to an answer is just ten (10) calendar days following service of the answer.

Despite the language in California Code of Civil Procedure § 438 regarding time limits, even though said statute was enacted in 1994, the Courts have ruled that a motion for judgment on the pleadings may be made at any time prior to the trial, or at the trial itself.

A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself.”  Stoops v. Abbassi (2002) 100 Cal. App. 4th 644, 650,  see also Smiley v. Citibank (South Dakota) N.A. (1995) 11 Cal.4th 138, 145, fn. 2—”common law motion for judgment on the pleadings” upheld despite fact CCP § 438 had been enacted during course of proceedings.

A very persuasive legal argument can be made to support the conclusion that a motion for judgment on the pleadings may be made at any time as the law is clear that the grounds for a general demurrer are never waived.  See California Code of Civil Procedure § 430.80.

Attorneys or parties in California who would like to purchase a sample motion for judgment on the pleadings to be used by a plaintiff can click below to purchase a sample motion complete with a memorandum of points and authorities with full citations to case and statutory authority.

http://www.scribd.com/doc/27243973/Sample-Motion-for-Judgment-on-the-Pleadings-for-Plaintiff

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 14 years of experience in civil litigation in California Courts.  If you are in need of assistance with any civil litigation, 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 and Google Checkout which means that you can pay using a credit or debit card.

Stan Burman-Registered Legal Document Assistant
Registration Number LDA-83
County of Orange
Registration Expires 12/31/2010

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Posted in California civil litigation, California freelance paralegal, California legal document assistant | No Comments »

Motion for Judgment on the Pleadings by Defendant in California

March 13th, 2010

This blog post will outline the issues involved for a defendant filing a motion for judgment on the pleadings in California.

California Code of Civil Procedure § 438 states in pertinent part that, “A party may move for judgment on the pleadings on the following grounds, if the moving party is a defendant that the complaint does not state facts sufficient to constitute a cause of action against the defendant.”

A motion for judgment on the pleadings has the same function as a general demurrer but can be made after the time for demurrer has expired. Except as provided by statute, the rules governing demurrers apply.  Note that a motion for judgment on the pleadings may not be made on the grounds of uncertainty or any other ground for special demurrer.

Thus, the rules for pleading that are so commonly used in demurrers to complaints are also applicable to motions for judgment on the pleadings directed to a complaint as well as demurrers to answers.  Significantly, a pleading must allege facts and not mere conclusions and must allege each and every element required to state a particular cause of action.

If a defendant negates any essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action.  See Cantu v. Resolution Trust Corp. 4 Cal.App. 4th 857, 880 (1992).

Therefore, if a defendant has been served with a complaint containing causes of action which fails to allege each and every element required to state that particular cause of action, then filing a motion for judgment on the pleadings is the correct procedure, assuming that the time for demurrer has already expired.  Note that once an answer has been filed by the defendant, a demurrer cannot be filed.

Despite the language in California Code of Civil Procedure § 438 regarding time limits, even though said statute was enacted in 1994, the Courts have ruled that a motion for judgment on the pleadings may be made at any time prior to the trial, or at the trial itself.

A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself.”  Stoops v. Abbassi (2002) 100 Cal. App. 4th 644, 650, see also Smiley v. Citibank (South Dakota) N.A. (1995) 11 Cal.4th 138, 145, fn. 2—”common law motion for judgment on the pleadings” upheld despite fact CCP § 438 had been enacted during course of proceedings.

A very persuasive legal argument can be made to support the conclusion that a motion for judgment on the pleadings may be made at any time as the law is clear that the grounds for a general demurrer are never waived.  See California Code of Civil Procedure § 430.80.

Attorneys or parties in California who would like to purchase a sample motion for judgment on the pleadings to be used by a defendant can click below to purchase a sample motion complete with a memorandum of points and authorities with full citations to case and statutory authority.

http://www.scribd.com/Sample-Motion-for-Judgment-on-the-Pleadings-for-Defendant/d/27412607

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 14 years of experience in civil litigation in California Courts.  If you are in need of assistance with any civil litigation, 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 and Google Checkout which means that you can pay using a credit or debit card.

Stan Burman-Registered Legal Document Assistant
Registration Number LDA-83
County of Orange
Registration Expires 12/31/2010

Tags: , , , , , , , ,
Posted in California civil litigation, California freelance paralegal, California legal document assistant | No Comments »

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