Motion to quash service in an unlawful detainer (eviction) in California

Posted on March 1, 2012 by owner

This blog post will discuss the filing of a motion to quash service in an unlawful detainer (eviction) case in California.

California Code of Civil Procedure § 418.10 states in pertinent part that a defendant may file a motion to quash service of summons on the ground of lack of jurisdiction of the Court over him or her. The main grounds used are that the service on the defendant was defective as the Court does not acquire jurisdiction over a defendant unless proper service of the summons and complaint has been made. This is true even though the defendant may be a resident of California.

Note that the motion to quash in an eviction case must be set for hearing within 3-7 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 must be set between 8-12 days because of the additional 5 days required by the provisions of Code of Civil Procedure § 1013. See California Rule of Court 3.1327(a).

A Motion to Quash Service is a “special appearance” meaning that it does not admit the Court’s jurisdiction over the defendant.

Case law in California is well settled that once a defendant files a motion to quash service that the plaintiff has the burden of proving that the service was valid.

Once a defendant files a motion to quash the burden is on the plaintiff to prove by a preponderance of the evidence the validity of the service and the court’s jurisdiction over the defendant.  Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 991.

The Courts in the State of California have ruled that a defendant is under no duty to respond to a defectively served summons.

And a defendant is under no duty to respond to a defectively served summons and may stand mute until a plaintiff makes a showing of the validity of the service to the satisfaction of the court. Taylor-Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 111.

This is particularly so when the defendant was served by “substituted service” as the statutes allowing such service are strictly construed..

Statutory provisions for substituted service must be strictly complied with, and statutory conditions upon which such service depends will be strictly construed. Sanford v. Smith (1970) 11 Cal.App.3d 991, 998.

And in an Unlawful Detainer action a Motion to Quash Service may still be filed even though the defendant may actually have notice of the lawsuit!

Even when the defendant tenants (and/or subtenants) actually received summons and complaint and otherwise have actual notice of the lawsuit, a motion to quash will lie if process was not served in a statutorily-authorized manner. Schering Corp. v. Super.Ct. (Ingraham) (1975) 52 Cal. App. 3d 737, 741.

Attorneys or parties in the State of California who wish to view a portion of a sample motion to quash service for unlawful detainer sold by the author can click below.

http://www.scribd.com/doc/25562350/Sample-Motion-to-Quash-Service-for-California-Unlawful-Detainer

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in California Civil Litigation. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.

Subscribe to his weekly newsletter with legal tips and tricks for California.
http://TinyWebLink-001.com/?pid=6585639

 

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Motion to vacate a void judgment in California

Posted on February 27, 2012 by owner

This blog post will outline some of the issues involved for a defendant filing a motion to vacate a default and/or default judgment in California under Code of Civil Procedure section 473, subdivision (d). Proper use of this motion can be of great help to a defendant against whom a void judgment has been entered.

A judgment may be void as a matter of law for several reasons including, (1) lack of subject matter jurisdiction, (2) lack of personal jurisdiction, (3) lack of or improper service of summons, (4) default improperly entered, and (5) a default judgment exceeding the amount demanded in the complaint.

Code of Civil Procedure section 473, subdivision (d) states that, “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

Note that in order to obtain relief under subdivision (d) the judgment must be considered a void judgment, and not merely a voidable judgment.

“A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.” In re Marriage of Goddard (2004) 33 Cal.4th 49, 56.

A judgment is void if the court lacked jurisdiction over the subject matter or parties, for example, if the defendant was not validly served with summons. Neumann v. Melgar (2004) 121 Cal.App.4th 152, 164.

If a judgment is in fact void, there is no time limit mentioned for a party to file a motion to set aside the void judgment.

Under Code of Civil Procedure section 473, subdivision (b), a motion to vacate a default and default judgment must be brought within six months of entry of the default judgment. Section 473, subdivision (d) allows a trial court to set aside a void judgment without mentioning a time limit. Lee v. An (2008) 168 Cal.App.4th 558, 563.

Note that the Court in Lee v. An ruled that the resulting judgment was voidable, not void. See below.

If the court has jurisdiction over the parties and subject matter but acts “in excess of its jurisdiction,” its judgment is voidable, not void. The difference is that in order to set aside a voidable judgment, a party must act before it becomes final. Thereafter, the judgment may be entitled to res judicata effect. Lee v. An supra at 565–566—where terminating sanction imposed without proper notice, resulting judgment was voidable, not void, and could not be set aside under CCP § 473(d) after it became final.

If a party did not have actual or constructive notice of the lawsuit then the judgment is void.

Lack of actual or constructive notice of proceedings (e.g., because papers served on defendant’s attorney who had been suspended by State Bar and thus had no authority to represent defendant). Lovato v. Santa Fe Int’l Corp. (1984) 151 Cal. App.3d 549, 553.

And if the plaintiff did not serve the statement of damages required in personal injury and death actions then the judgment is void. See Heidary v. Yadollahi (2002) 99 Cal. App. 4th 857, 862-default improperly entered for failure to appear at trial.

Of course lack of or improper service of summons is likely the most common reason for a judgment to be void as a matter of law, particularly when the defendant has not been personally served.

The law is well settled that personal service is the preferred means of service to notify a defendant of the commencement of a lawsuit.

Personal service is the preferred means to notify a defendant of the issuance of a summons and the commencement of a lawsuit. Olvera v. Olvera (1991) 232 Cal.App.3d 32, 41.

Any other form of service other than personal service is known as substituted or constructive service, depending on the method used. And in using substituted or constructive service, strict compliance with the letter and spirit of the statutes is required.

“When substituted or constructive service is attempted, strict compliance with the letter and spirit of the statutes is required.” Stern v. Judson (1912) 163 Cal. 726, 735.

“Service of a summons by publication is in derogation of the common law, and in order to obtain such constructive service, the statute must be substantially complied with and its mandates observed.” Columbia Screw Co. v. Warner Lock Co. (1903) 138 Cal. 445, 446.

The United States Supreme Court has ruled that a void judgment must be set aside regardless of the merits of the underlying lawsuit. This was in a case where there was never a valid service of summons.

“Where a person has been deprived of property in a manner contrary to the most basic tenets of due process, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits.” Peralta v. Heights Medical Center, Inc. (1988) 485 US 80, 86–87, 108 S.Ct. 896, 900 (internal quotes omitted).

And a California Court of Appeal has ruled that lack of personal jurisdiction renders a default judgment void in a case involving a nonresident of California.

Lack of personal jurisdiction renders a default judgment void, so that it may be vacated at any time. Strathvale Holdings v. E.B.H. (2005) 126 Cal.App. 4th 1241, 1249—not affected by nonresident’s failure to bring motion to quash.

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in civil litigation in California Courts. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.

Subscribe to his weekly newsletter with legal tips and tricks for California.
http://TinyWebLink-001.com/?pid=6585639

 

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Vacating a property settlement agreement (MSA) in California

Posted on February 14, 2012 by owner

This blog post will briefly discuss some of the issues involved in vacating a property settlement agreement also known as a marital settlement agreement, in California. In particular, vacating a property settlement agreement based on one party having an undue influence on the other party because of undue influence such as taking advantage of another due to distress or weakness of mind.

The author worked on a case some years ago in which the wife had signed a property settlement agreement in which she agreed to accept the sum of $6,000.00 as full and complete reimbursement for her share of the community property. At the time that the wife signed the agreement she was not represented by counsel, and she did not consult with any attorney prior to signing the agreement.

Further, at the time that the wife signed the agreement, her rent was already late and she was going to be served with a 3-Day notice to pay rent or quit by her landlord. She did not have any money to pay her rent as she was not working at the time she signed the agreement.

The husband had a large amount of property, much more than the wife, and the wife may have had a community property share. And the agreement was signed before any petition for dissolution of marriage (divorce) had even been filed.

A brief discussion along with some of the statutes and cases that were used in the memorandum of points and authorities are set forth below.

The confidential relationship between spouses imposes a duty of the highest good faith and fair dealing on each spouse, and neither may take any unfair advantage of the other. See California Family Code § 721(b).

Thus the least overreaching or misrepresentation allowing one spouse to gain the property of the other is fraudulent, and will justify an action to avoid the agreement. Haseltine v. Haseltine (1962) 203 Cal. App. 2d 48, 56.

In this case, the wife signed the agreement to not go after anything of her husband’s if he gave her $6,000.00. She only signed the agreement because her rent was 3 days late and she had no money and no job and would be evicted otherwise. Clearly this was a case of not only one spouse taking unfair advantage of the other spouse, but overreaching of the highest degree as someone who is flat broke and about to be evicted is obviously under extreme stress, and therefore highly vulnerable.

And another issue is that the agreement was signed before the petition for dissolution of marriage (divorce) had even been filed. Thus no preliminary or final declarations of disclosure were completed and exchanged.

An exchange of prescribed “preliminary” disclosure declarations is mandatory and nonwaivable California Family Code § 2104; Marriage of McLaughlin (2000) 82 Cal.App. 4th 327, 335–336.

In dissolution proceedings commenced after 1992, no agreement is enforceable with respect to the parties property rights unless both spouses have executed and served on the opposition the final declaration of disclosure required by Family Code § 2105 unless both parties have signed a voluntary waiver of those requirements. California Family Code § 2106.

That fact alone requires the Court to vacate the agreement. And now we come to the issues of duress, undue influence and gross inadequacy of the consideration received.

Marital settlement agreements, insofar as they are not merged into the judgment, are voidable under general contract principles where a party lacked contractual capacity, or consented due to fraud, duress, undue influence or mistake. In re Marriage of Gonzalez (1976) 57 Cal. App. 3d 736, 743-744.

A marital settlement agreements that is not part of the judgment may be set aside if the court finds it to be inequitable, even in the absence of fraud or compulsion. Also, the courts will carefully scrutinize agreements made by a party without the advice of legal counsel. In re Marriage of Moore (1980) 113 Cal. App.3d 22, 27.

Courts are likely to carefully scrutinize marital settlement agreements affecting substantial rights and obligations when one party acted in pro per. Adams v. Adams (1947) 29 Cal. 2d 621, 628.

An agreement lacks valid consent where one party takes unfair advantage of the other party’s weakness of mind or distress. The exertion of the “undue influence” deprives the other party of the ability to exercise “free will”. California Civil Code § 1575, In re Marriage of Saslow (1985) 40 Cal. App. 3d 848, 864.

By statute, spouses stand in a confidential relationship in transactions between themselves and in that context, are subject to the general rules governing fiduciary relationships. California Family Code §§ 721(b), 1100(e).

Undue influence can be shown by the physical or mental weakness of the party claiming undue influence due to economic distress. In re Marriage of Dawley (1976) 17 Cal.3d 342, 355..

And undue influence can also be shown by gross inadequacy of the consideration received by the party claiming undue influence. In re Marriage of Baltins (1989) 212 Cal. App. 3d 66, 85.

Note that once a marital settlement agreement has been merged into a judgment that it will not be voidable under general contract principles.

It may be possible to vacate the judgment if one party did not fully comply with the California Family Code relating to declarations of disclosure. That issue will be covered in a later blog post.

Those provisions of the marital settlement agreement that are merged in the judgment become an order of the court; the “merged” agreement is superseded by the judgment and ceases to be of independent legal significance. As a result, the agreement can then be enforced only as a judgment (by contempt, execution, etc.) it is no longer enforceable by contract remedies and, unless otherwise provided by the judgment, any warranties are extinguished by the judgment. Marriage of Lynn (2002) 101 CalApp. 4th 120, 130 (citing text).

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in California divorce and family law matters. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. Visit his website at http://www.legaldocspro.net

Subscribe to his weekly newsletter with legal tips and tricks for California.
http://TinyWebLink-001.com/?pid=6585639

 

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Filing an opposition to a motion in California

Posted on January 31, 2012 by owner

This blog post will discuss some of the issues involved in filing an opposition to a motion in California civil litigation. Failing to file an opposition to a motion may be construed by the Court as an admission that the motion has merit and should be granted. Thus it is extremely important that an opposition be served and filed to the motion.

If a party fails to file timely written opposition to a motion or demurrer, the judge may refuse to permit oral argument against the motion. The judge, as a matter of discretion, may consider a requestfor continuance to allow filing of a written opposition. Because continuances are not favored, valid reasons will have to be shown for the failure to file or late filing of opposing papers. If a continuance is granted, the court may require the opposing party (or counsel) to pay fees for the appearance incurred by other parties. See the Rutter Group, Civil Procedure before trial, 9:168.

The opposition should contain a memorandum of points and authorities citing the reasons that the motion should not be granted, along with citations to the case law and statutory authority that supports the opposition, a declaration should also be included where appropriate. Failure to support the contentions of the opposition with a good argument and citations to authority may result in the unsupported contentions being considered waived by the court.

“Contentions are waived when a party fails to support them with reasoned argument and citations to authority.”? Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal. App. 4th 1210, 1215.

The opposition to the motion must not exceed 15 pages, except in opposition to a summary judgment motion. If the memorandum of points and authorities exceeds 10 pages a table of contents and table of authorities must be included. The page limit does not include exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service.

See California Rule of Court 3.1113.

Code of Civil Procedure § 1005 states in pertinent part that, “All papers opposing a motion shall be filed with the court and a copy served on each party at least nine court days before the hearing, and Notwithstanding any other provision of this section, all papers opposing a motion and all reply papers shall be served by personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers or reply papers, as applicable, are filed. This subdivision applies to the service of opposition and reply papers regarding motions for summary judgment or summary adjudication, in addition to the motions listed in subdivision (a).”

Note that many judges will strictly enforce the requirement that the opposition be served on time, and in the correct manner.

The time limit does not apply to an opposition to a motion for summary judgment which must be filed and served at least fourteen (14) calendar days before the hearing, nor does it apply when a specific code section specifies a different time requirement, or where a judge has ordered otherwise.

Judges usually decide motions based on evidence presented in the form of affidavits or declarations, rather than oral testimony.

Even so, the court has discretion to receive oral testimony, as well as exclude it. There are situations in which the judge may, in the exercise of such discretion, decide to hear witnesses or to allow cross-examination of a declarant. See Rosenthal v. Great Western Fin’l Secur. Corp. (1996) 14 Cal. 4th 394, 414.

At least 3 Court days before the hearing, the party requesting leave to introduce oral testimony must serve and file a statement as to the nature and extent of the proposed testimony, and a reasonable time estimate for the hearing.  When the statement is filed less than five court days before the hearing, the filing party must serve a copy on the other parties in a manner to assure delivery to the other parties no later than two days before the hearing. See California Rule of Court 3.1306(b).

Court must consider request for oral testimony. The judge may not adopt a policy of outright refusal to consider oral testimony on a motion hearing. Rather, if requested by either party, the judge must exercise his or her discretion as to whether oral testimony would be necessary or helpful to the decision of the matter. See Reifler v. Sup.Ct. (1974) 39 Cal.App. 3d 479, 485.

As stressed at the beginning a party should do everything in their power to ensure that their opposition to a motion is timely filed and served.

To view samples of several different oppositions to motions sold by the author click below.

http://www.scribd.com/legaldocspro

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in California civil litigation. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.  Visit his website at http://www.legaldocspro.net

Subscribe to his weekly newsletter with legal tips and tricks for California.
http://TinyWebLink-001.com/?pid=6585639

 

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Uncontested Probate in California

Posted on January 16, 2012 by owner

This blog post will briefly discuss probate procedure in California. The discussion will describe some of the procedures and issues for an uncontested probate in California. Uncontested means that there are no disputes between any of the heirs or beneficiaries regarding either the will, or the distribution of the estate property, also that there are no disputes with creditors.

The word “probate” generally refers to what happens to a person’s property when he or she dies. The purpose of probate is to see that the debts and taxes of the person who has died (the “decedent”) are paid and that the remaining property gets to the rightful owners.

Assets held in the decedent’s name alone are called “probate property” and will generally require a court proceeding to determine the beneficiaries. Probate property passes to the persons named in the will, or if there is no will, according to California law on intestate succession. The person who oversees the probate proceeding is called the executor or administrator. A will normally names an executor, usually a close relative. If there is no will, the court will appoint an administrator in a certain order of priority, starting with the surviving spouse, then children, etc.. It takes a minimum of 6 to 9 months to complete a formal probate court proceeding.

If there is a will then a petition for probate of will and letters testamentary must be filed. If there is no will then the petition is called a petition for probate and letters of administration.

Once the petition for probate has been filed, a notice of petition to administer estate must be published in a legal or “adjudicated” newspaper that publishes probate notices. The notice must be published three times and the first publication must commence at least fifteen days before the hearing on the petition for probate. Also all of the beneficiaries and other persons mentioned in the will must be mailed notice of the petition to administer estate at least fifteen days before the hearing.

In most uncontested cases either the will waives bond, or the heirs sign a waiver of bond.  Most courts will waive the bond if everyone has signed a waiver, particularly if only limited authority under the Independent Administration of Estates Act is requested.  Limited authority means that the executor or administrator may not sell any real property, or encumber any real property without obtaining court permission, and any sale of real property must be confirmed by the Court and a special notice published. If full authority is requested, most Courts will require a bond.

Full authority means that the executor or administrator does not have to obtain Court permission to sell any real property or encumber any real property. Instead they must serve all heirs, beneficiaries and other persons entitled to notice with a Notice of Proposed Action describing in detail what they plan to do, the notice must be served at least fifteen days before the proposed action. If anyone objects then the Court will hold a hearing on their objection.

At the hearing on the petition for probate, if no objections have been received the Court will appoint the executor or administrator, and also appoint a probate referee to appraise certain estate property such as automobiles, real estate, and other types of property which do not have a readily ascertainable cash value such as stocks, bonds, etc. Cash in the bank is appraised by the executor or administrator. The Inventory and Appraisement must be filed with the Court once all of the estate property has been properly appraised.

Notice to creditors must also be given. Even if no creditors exist a notice must be served on the California Franchise Tax Board. Any creditors given notice have until the later of sixty days after the notice was served, or four months after the letters were issued to file a creditor’s claim. The executor or administrator must approve the claim in whole or in part, or reject the claim. If a creditor’s claim is rejected then the executor or administrator must wait three months once the notice of rejection was served before a petition for final distribution can be filed.

Once all creditor’s claims have been dealt with, and after at least four months since the letters have been issued, then a petition for final distribution may be filed.

The petition for final distribution will generally request that the Court approve all actions taken by the executor or administrator, and must provide a complete accounting of the estate unless all heirs or beneficiaries have waived the accounting. The petition must also list the current value of all estate property, and all heirs or beneficiaries entitled to property of the estate, as well as what percentage they will receive. Also if the executor or administrator is requesting their statutory fee, or the fee for the attorney, a detailed breakdown of how the proposed fee is calculated must be included in the petition.

If the Court approves the petition for final distribution then an Order will be signed by the Judge. Then once all heirs and beneficiaries have signed a receipt stating that they have received all property to which they were entitled, the receipts are filed with the Court along with an Ex-Parte Petition for Final Discharge which requests that the Court discharge the executor or administrator. Once that is done the probate is over, if a bond was issued than the bonding company will cancel the bond once they have received a copy of the Order of Final Discharge.

The author of this article, Stan Burman, is a freelance paralegal  with over 15 years of experience in preparing probate paperwork for California. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.   Visit his website at http://www.legaldocspro.net

 

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