Horizontal stare decisis

The doctrine of stare decisis is  taught in law schools and is also taught in some paralegal schools as well as at least a basic understanding of the doctrine is essential for anyone conducting legal research. Horizontal stare decisis basically means the effect of decisions by courts at the same level.

Horizontal stare decisis is somewhat different from vertical stare decisis. For instance, in the federal system, an opinion from one circuit court of appeals may be persuasive precedent but is not binding on other courts of appeals. See Hart v. Massanari, 266 F. 3d 1155, 1172-73 (9th Cir. 2001). This allows the circuits to reach contrary decisions suitable for decision by the Supreme Court.

However within the Ninth Circuit for example, horizontal stare decisis operates to bind subsequent panels. Thus, the first panel of Ninth Circuit judges to publish an opinion on an issue binds not only district courts within the circuit but also subsequent Ninth Circuit panels. For the Ninth Circuit to overrule its own precedent, it must issue an en banc decision. See Miranda B. v. Kitzhaber, 328 F. 3d 1181, 1185 (9th Cir. 2003) that case stated that a panel must follow prior panel decisions unless a Supreme Court decision, an en banc decision, or subsequent legislation undermines its precedential value.

However in California the situation is different in that by contrast there is no horizontal stare decisis between appellate panels of the California Court of Appeal. See Marriage of Shaban (2001) 88 Cal. App. 4th 398, 409. So one appellate panel is not bound by the decision of another.

And when there are two published decisions that are in conflict, the superior court “can and must make a choice between the conflicting decisions.” See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 456.

The California Supreme Court has stated that, there is only one California Court of Appeal, albeit administratively divided into districts and sometimes subdivided into divisions. See Auto Equity Sales, Inc. v. Superior Court, (1962) 57 Cal. 2d 450, 455.

Every superior court must follow any published decision from any district and any division of any court of appeal. See Cuccia v. Superior Court, (2007) 153 Cal. App. 4th 347, 353-54 that case stated that stare decisis requires a superior court to follow a published court of appeal decision even if the trial judge believes the appellate decision was wrongly decided.

There is essentially no horizontal stare decisis in California. Thus panels of the California Court of Appeal are not bound by any decisions of prior panels, even within the same district. Thus, any particular district or division of the court of appeal may disagree with a decision by any other district or division. This means that while the U.S. Supreme Court regulates circuit-splits from the 13 federal circuits, the California Supreme Court oversees potential splits from what are essentially 19 separate courts of appeal considering each of the six districts plus the divisions within those districts as independent courts.

In this situation, the trial court is free to pick which of the decisions to follow. See Auto Equity Sales, Inc., supra, 57 Cal. 2d at 456 (“where there is more than one appellate court decision, and such appellate decisions are in conflict,” the superior court “can and must make a choice between the conflicting decisions”).

However in actual practice some superior court judges may view this freedom as more theoretical than real. A California Court of Appeal has even stated in a published decision that“a superior court ordinarily will follow an appellate opinion emanating from its own district even though it is not bound to do so.” See McCallum v. McCallum, (1987) 190 Cal. App. 3d 308, 315.

Because of the fact that there is no horizontal stare decisis in California, and because geography has no bearing on the precedential power of a court of appeal decision, a superior court may face the prospect of simultaneously being bound to follow conflicting court of appeal decisions. In this situation, the trial court is free to pick which of the decisions to follow. Auto Equity Sales, Inc., supra, 57 Cal. 2d at 456 (“where there is more than one appellate court decision, and such appellate decisions are in conflict,” the superior court “can and must make a choice between the conflicting decisions”).

Some superior court judges may view this freedom as more theoretical than real, however. In practice, “a superior court ordinarily will follow an appellate opinion emanating from its own district even though it is not bound to do so.” McCallum v. McCallum, 190 Cal. App. 3d 308, 315 (1987).

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

http://www.scribd.com/LegalDocsPro

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

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

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

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

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

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

Posted in Uncategorized | Leave a comment

Requesting a statement of decision in California

Requesting a statement of decision in California is the topic of this blog post. A request for a statement of decision is authorized by Code of Civil Procedure section 632 and is only used in non-jury or bench trials.

A statement of decision is where the trial Court states the legal reasoning for its decision on certain specified controverted issues.  A statement of decision can be requested in a civil, family law or probate case in California.  Failure to request a statement of decision on all of the controverted issues in a case can prove fatal to any possible appeal of the case as any reviewing court is required to presume that every fact essential to the judgment was proven and found by the trial court if no statement of decision has been requested.

Any party appearing at a trial may request a statement of decision.  If the trial is concluded within one calendar day, or in less than eight hours spread out over more than one day, the request must be made before the matter is submitted for decision.  If the trial is longer than that, the request must be made within 10 days after the court announces a tentative decision. See Code of Civil Procedure § 632.

A trial shall be deemed to actually commence at the beginning of the opening statement or argument of any party or his or her counsel, or if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence. See Code of Civil Procedure § 581(a)(6).

A California Court of Appeal stated in a recent case that judicial time off the bench does not count in determining how long a trial lasts. See Gorman v. Tassajara Development Corporation (2009) 178 Cal. App. 4th 44, 61-63.

The date that the clerk mails the copy of the minute order or decision is when the 10-day period for making the request commences. See Hutchins v. Glanda (1990) 216 Cal. App. 3d 1529, 1531.

If any party or their attorney makes a timely request for a statement of decision, the trial court’s failure to prepare the statement is reversible error. See Social Service Union, Local 535 v. County of Monterey (1989) 208 Cal. App. 3d 676, 681.

The request for a statement of decision must specify the controverted issues for which a statement of decision is requested.  The trial judge is not required to sift through a host of improper specifications in search of a few arguably proper ones. Although a party cannot be prevented from using the request as a way of arguing with the court rather than clarifying the grounds of its decision, a party who makes that choice is not entitled to rely on the resulting document to insulate the judgment from the presumption of correctness.  See Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal. App. 4th 547, 558-559.

When there has been a request for a statement of decision, the statement of decision may be limited to only those issues specified in the request if less than all material issues are specified See Harvard Investment Co. v. Gap Stores, Inc. (1984) 156 Cal. App. 3d 704, 709 n.3.

If an issue was not brought up at the trial, the reviewing court is under no obligation to address it. See Colony Ins. Co. v. Crusader Ins. Co. (2010) 188 Cal. App. 4th 743, 750-751.

A party waives any objection on appeal based on the trial court’s failure to file a written statement of decision when trial lasts less than one day and that party fails to make an oral request, and when language in that party’s points and authorities that were alleged to be a written request was not specific, but merely asked court to find in her favor. See Martinez v. County of Tulare (1987) 190 Cal. App. 3d 1430, 1434-1435.

If no statement of decision has been requested, the reviewing court is required to presume that every fact essential to the judgment was proved and found by the trial court. Review in these circumstances is limited to a determination as to whether there is any evidence, contradicted or uncontradicted, to support the judgment. See Agri-Systems, Inc. v. Foster Poultry Farms (2008) 168 Cal. App. 4th 1128, 1134-1135.

Requesting a statement of decision is an excellent way for a party to require that the Court give a detailed explanation of the basis and reasoning behind its decision. This useful tool should be utilized in every case whenever possible.

Attorneys or parties who would like to view a portion of a sample request for statement of decision for California sold by the author can see below.

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

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

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

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

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

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

Posted in California civil litigation, California Dissolution of Marriage, california divorce, California freelance paralegal, California legal topics, California unlawful detainer | Tagged , , , , | Leave a comment

Definition of the term sewer service in litigation

The definition of the term sewer service in litigation is the topic of this blog post. The term  sewer service was coined in reference to situations where figuratively and in some cases literally, process servers will throw the summons and complaint in the sewers near the homes of defendants such as debtors and then sign a false proof of service thus allowing the plaintiff who is usually a debt collection company to obtain a default judgment from the court.

The State of California is the main focus of this post as that is where the great majority of cases that I work on are located although the basic principles discussed in this blog post should be quite similar throughout the United States.

The practice of sewer service is both despicable and thoroughly illegal, yet it has been going on for over 40 years in various types of litigation cases and is growing more and more widespread all over the United States, particularly in debt collection cases involving debt collection companies and debt buyers.

I want to stress that any judgment entered without valid service of process is void anywhere in the United States as the United States Supreme Court ruled unanimously in a case that was decided over 25 years ago that any judgment entered where the defendant was not properly served is void, violates due process and can be set aside at any time.

I honestly do believe that most process servers are honest and would never falsely claim that they served someone whom they had never served. However I also know from my own personal knowledge working in California and Federal litigation since 1995 that extreme cases of sewer service are a fact of life that you have to deal with in the legal profession. Brief descriptions of two of the more extreme cases that I have worked on are shown below.

I recently worked on a case where the defendant was supposedly served by substituted service at a mail drop that he had not used as a mailing address for over 2 years, the lawyers for the plaintiff had sent a demand letter to a different post office box several months before. The defendant had no knowledge of the lawsuit or judgment until he was informed by someone that the real property he had sold to them had a lien on it. He then went to the Courthouse and copied the entire Court file. The documents show that one process server with one company had went to the mail drop office several times but that they “cannot verify the address is still used by the defendant”. Another document filed several months later by another process server with another company claims that they performed substituted service on the female employee “who verified the address is still used by the defendant.”

Several years ago I worked on another case where on the exact date and time that the alleged service was made the defendants were on an airplane that was flying to the Philippines!

Situations such as the two I described earlier are generally good situations in which to seriously consider filing a motion to vacate the default and judgment under Code of Civil Procedure section 473(d) on the grounds that the default and judgment are void due to defective service of process resulting in a judgment void for lack of personal jurisdiction and also request that service of the summons and complaint be quashed.

Attorneys or parties in California that would like to view a portion of an 11 page sample motion to vacate a void judgment under Code of Civil Procedure section 473(d) and quashing service containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can see below.

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

http://www.scribd.com/LegalDocsPro/documents

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

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

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

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

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

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

Posted in California civil litigation, California freelance paralegal, law and motion, motion to vacate, motion to vacate default judgment in California | Tagged , , , , , | Leave a comment

Defective three-day notice in California as grounds for demurrer

A defective three-day notice in California is the topic of this blog post. This blog post will briefly discuss the issue of a defective three-day notice which was the issue in the recent case of Foster v. Williams which was decided on September 9, 2014 by the Appellate Division of the Superior Court in Los Angeles County, California. The decision in this case has been certified for publication.

The Appellate Division reversed an unlawful detainer (eviction) judgment entered against the defendant Keith Williams due to a defective three-day notice and one of the main grounds was that the notice failed to specify the physical address where rent had to be paid, instead listing only a name and directing the tenant to pay their rent online at www.erentpayment.com.

The slip opinion at page 2 states that the judgment was reversed because “The three-day notice did not comply with Code of Civil Procedure section 1161, (erroneously listed as 1162 in the slip opinion) subdivision (2)’s requirement that the notice provide the “address of the person to whom the rent payment shall be made” because the notice listed a uniform resource locator (URL) address, as opposed to the address of a physical place where the rent had to be paid. The notice also did not comply with Code of Civil Procedure section 1161, (erroneously listed as 1162 in the slip opinion) subdivision (2), because it failed to state that payment could be made pursuant to a previously established electronic funds transfer procedure.”

The slip opinion at page 2 in discussing the three-day notice at issue that “Plaintiff’s unlawful detainer action proceeded to trial based on a three-day notice to pay rent or quit. The three-day notice indicated it was served on defendant on June 24, 2013, and required him to pay $1,350 in rent for the month of June 2013. The notice also provided, “Your rent payment should be made payable to: Guest House Management and payment shall be delivered to: [¶] Name: Rick at the following address: www.erentpayment.com,” and listed a telephone number. On the day set for trial, defendant made an oral motion arguing the three-day notice was defective because it included a “web address” instead of a “physical address.” The court denied the motion, determining Code of Civil Procedure section 1161, subdivision (2), did not specifically require a physical address to be listed, and a “web address” constituted an “address” under the statute.”

The Appellate Division decision then went to discuss in detail the reasons for the requirements of a three-day notice under Code of Civil Procedure section 1161, subdivision (2) and on pages 3 and 4 of the slip opinion states in part that, “A judgment must be reversed when it is based on a three-day notice which lacks the information required by Code of Civil Procedure section 1161, subdivision (2).”

I have seen numerous defective three-day notices as I have been working in California and Federal litigation since 1995 and prior to that I worked in both commercial and residential property management for several years.

This case is just one more reason that any California tenant who is served with a three-day notice to pay rent or quit should closely examine the notice to determine if it meets the requirements discussed in this blog post. If the three-day notice is clearly defective than a demurer can be filed objecting to the complaint based on fact that the three-day notice is defective.

Attorneys or parties in California who would like to view a portion of an 11 page sample demurrer to an unlawful detainer (eviction) complaint in California objecting to the complaint on several grounds, including that the three-day notice is defective, containing a memorandum of points and authorities with citations to case law and statutory authority 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 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

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

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

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

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

Posted in California demurrer, California evictions, California unlawful detainer, demurrer to eviction, demurrer to unlawful detainer | Tagged , , , , , | Leave a comment

What is the vapor money theory

What is the vapor money theory is the topic of this blog post. The term vapor money theory was first used by the Courts in referring to the legal argument that “the bank never loaned me any money so I do not owe them anything and the loan agreement is void”. The so called vapor money theory rests on the assumption that any agreements entered into with a bank or other financial institution are void because the person receiving the loan did not receive any legal tender and because nothing of value was loaned to them because the transaction was based merely on a bookkeeping entry by the bank.

The Courts in numerous jurisdictions across the United States have held that the vapor money theory has NO legal basis in fact or law whatsoever and is frivolous as I will show in this blog post.

This invalid legal argument is still being used by certain misinformed or uninformed people despite the fact that it has been consistently rejected by the Courts in many jurisdictions.   In fact federal courts across the country have repeatedly labeled this legal argument frivolous. I have cited many cases below which discuss this discredited and invalid legal argument.

In Demmler v. Bank One, NA (S.D.Ohio Mar. 9, 2006), No. 2:05-CV-322, unreported, the defendants made a similar argument and the Court discussed this theory as follows:

“[T]he Court concludes that the complaint is utterly frivolous and lacks any legal foundation whatsoever. * * * Suffice it to say that all of Plaintiff’s claims * * * stem from the same basic premise. Plaintiff alleges that the promissory note he executed is the equivalent of “money” that he gave to the bank. He contends that Bank One took his “money,” i.e., the promissory note, deposited it into its own account without his permission, listed it as an “asset” on its ledger entries, and then essentially lent his own money back to him. He contends that Bank One did not actually have the funds available to lend to him, but instead “created” the money through its bookkeeping procedures. He further argues that because Bank One was never at risk, and provided no consideration, the promissory note is void ab initio, and Defendants’ attempts to foreclose on the mortgage are therefore unlawful. Plaintiff offers no authority for this patently ludicrous argument. Similar arguments have been rejected by federal courts across the country.See Frances Kenny Family Trust v. World Savings Bank, No. C04-03724 WHA, 2005 WL 106792 (N.D.Cal. Jan. 19, 2005) (sanctioning plaintiffs and rejecting their “vapor money” theory); Carrington v. Federal Nat’l Mortgage Ass’n, No. 05-cv-73429-DT, 2005 WL
3216226, at 3 (E.D.Mich. Nov. 29, 2005) (finding “fundamentally absurd and obviously frivolous” plaintiff’s claim that the lender unlawfully “created money” through its ledger
entries).”

Several published cases have dealt with this issue such as United States v. Schiefen, 926 F.Supp. 877, 880-81 (D.S.D.1995) (rejecting arguments that there was insufficient consideration to secure the promissory note, and that lender had “created money” by means of a bookkeeping entry. Rene v. Citibank, 32 F.Supp.2d 539, 544-45 (E.D.N.Y.1999) (rejecting claims that because lender did not have sufficient funds in its vault to make the loan, and merely “transferred some book entries,” the lender had created illegal tender).

I feel sorry for anyone who still believes in validity of this legal argument because by using that theory they are not only risking losing their case they also face the real risk of being sanctioned by the Court. Note that in the Frances Kenny Family Trust case cited above the attorney for the plaintiffs was sanctioned in the amount of $10,000.00 by the Court.

I want to make it clear that I have absolutely no love for the big banks whatsoever. However I also detest the use of kooky legal theories that have been completely rejected by the Courts. I wrote this blog post in the hopes that it will convince the uninformed that using the vapor money theory will not work and instead will backfire on them.

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

http://www.scribd.com/LegalDocsPro/documents

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

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

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

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

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

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

Posted in Bankruptcy Court Adversary Proceedings, Bankruptcy Litigation, California civil litigation, California foreclosure, California freelance paralegal, California legal topics, Federal civil litigation, Federal litigation, foreclosure | Tagged , , , , | Leave a comment