Request for leave of court to file a compulsory cross-complaint in California

A request for leave of court to file a compulsory cross-complaint in California is the topic of this blog post.

A request for leave of court to file a compulsory cross-complaint in the State of California is a very useful tool for any party that has discovered facts that support what are known as affirmative claims for relief which evolve from “a series of acts or occurrences logically interrelated” as these claims are for related causes of action that are subject to forfeiture if they are not pleaded in the action.  This typically happens during the discovery phase of litigation.

Statutory authorization for leave of court to file a compulsory cross-complaint in California.

A request for leave of court to file a compulsory cross-complaint in the State of California is authorized by the provisions of Code of Civil Procedure section 426.50.

Code of Civil Procedure § 426.50 states that, “A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action.  The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith.  This subdivision shall be liberally construed to avoid forfeiture of causes of action”.

It should be noted that Code of Civil Procedure section 426.50 also allows any party to request leave of court to amend their cross-complaint to add additional causes of action at any time during the course of the action.

A California Court of Appeal has stated in a published case that a motion for leave of court to file a cross-complaint at any time during the course of an action must be granted unless the opposing party can show bad faith on the part of the moving party.

In the case of Silver Organizations Ltd. v. Frank (1990) 217 Cal.App 3d 94, 98-99 a California Court of Appeal stated that, “The legislative mandate is clear.  A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court.  A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result.  Factors such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith”

The Court also ruled in Silver Organizations Ltd. v. Frank, at 100, that “Our review of the entire record fails to reveal, directly or inferentially, any substantial evidence of bad faith by the appellants.  Looking at the entire period between the filing of the complaint and the denial of the section 426.50 motion, a time frame of less than six months, we find nothing in appellants’ words or conduct remotely suggesting dishonest purpose, moral obliquity, sinister motive, furtive design or ill will”.

In Silver Organizations Ltd. v. Frank the Court of Appeal ruled that a time period of less than six months between the filing of a complaint and a motion to file a compulsory cross-complaint did not constitute bad faith

While other cases have ruled that a lengthy delay of over six months may constitute bad faith, the decision in Silver Organizations Ltd. v. Frank has not been disapproved or otherwise disagreed with in any other published case in the State of California as of the date of this blog post.

Any party that wants to request leave of court to file a compulsory cross-complaint should file their motion within six months or less to avoid the possibility of their motion being denied.

An experienced litigation attorney can evaluate your situation and determine whether the unique circumstances of your case would support a request for leave to file a compulsory cross-complaint.  Contact attorney Nathan Mubasher for a consultation and evaluation of your case.

Schedule a consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

 

A motion for nonsuit in California

A motion for nonsuit in California is the topic of this blog post.

A motion for nonsuit in California can be very useful if it is filed in the appropriate situations.  This is due to the fact that a motion for nonsuit allows a defendant to challenge the sufficiency of the evidence offered by a plaintiff at an early stage of the trial while still preserving the right to present their defense if the motion for nonsuit is denied.  It should be noted that a defendant may not move for nonsuit until after plaintiff has completed their opening statement, or has presented their evidence in a jury trial.

Several California Court of Appeal published decisions have held that a motion for nonsuit functions as a demurrer to the evidence offered by plaintiff.

Law authorizing a motion for nonsuit in California.

Code of Civil Procedure section 581(c) is the statutory authority for filing a motion for nonsuit in California.

Code of Civil Procedure § 581c states that,

“(a) Only after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit.

(b) If it appears that the evidence presented, or to be presented, supports the granting of the motion as to some but not all of the issues involved in the action, the court shall grant the motion as to those issues and the action shall proceed as to the issues remaining. Despite the granting of the motion, no final judgment shall be entered prior to the termination of the action, but the final judgment in the action shall, in addition to any matters determined in the trial, award judgment as determined by the motion herein provided for.

(c) If the motion is granted, unless the court in its order for judgment otherwise specifies, the judgment of nonsuit operates as an adjudication upon the merits.

(d) In actions which arise out of an injury to the person or to property, when a motion for judgment of nonsuit was granted on the basis that the defendant was without fault, no other defendant during trial, over plaintiff’s objection, may attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion.”

Limitations on a motion for nonsuit in California.

It should be noted that a motion for nonsuit has some limitations as the judge hearing the motion for nonsuit in California has very limited discretion as the court must rule solely on the basis of the evidence offered by plaintiff.  In ruling on a motion for nonsuit in California after the opening statement, the court can only consider only the matters stated by plaintiff in the opening statement and any reasonable inferences that may be drawn.

The California Supreme Court stated in a published decision from over 100 years ago that granting nonsuit after an opening statement is disfavored and should be avoided unless the evidence clearly shows that no case can be made out.

The discretion is very similar in ruling on a motion for nonsuit after plaintiff has presented their case, in that case only the evidence submitted by plaintiff and any reasonable inferences that may be drawn can be considered.

Many motions for nonsuit in California are made orally and without any prior notice being provided to plaintiff.  Although supporting papers are not generally required, a motion for nonsuit in California is more powerful if it is based on points and authorities.  A motion for motion after plaintiff has presented their case may be based on exhibits received in evidence and transcripts of testimony.

The party filing a motion for nonsuit in California must state the precise grounds on which the motion is made, and should indicate the defects in the plaintiff’s case clearly and with particularity.

As should be obvious by now, the requirements for a motion for nonsuit are quite restrictive.

Advantages of a motion for nonsuit in California.

However a motion for nonsuit does have one huge advantage in that it operates as an adjudication upon the merits “unless the court in its order for judgment otherwise specifies.” See Code of Civil Procedure § 581c.

A defendant who prevails on a motion for nonsuit is entitled to recover their costs. See Code of Civil Procedure § 1033.

There is one key point to remember which is that anyone considering a motion for nonsuit after plaintiff’s opening statement should consider the fact that, if the defects identified are easily correctable, plaintiff will not only be alerted, they will simply oppose the motion and stress that motions for nonsuit are disfavored which they clearly are.

An experienced litigation attorney can evaluate your situation and determine if filing a motion for nonsuit is appropriate for your case.  Contact attorney Nathan Mubasher for a consultation and evaluation of your case.

Schedule a consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

 

Restraining order defense in California

Restraining order defense in California is the topic of this blog post.

Preparing an effective restraining order defense in California is extremely important.  This is due to the fact that serious consequences can result from having a restraining order entered against you.  These serious consequences can have extremely negative impacts on your life, both in the present and in the future.  For example many permanent restraining orders in California have a typical duration of 3 years and in some cases even longer, and if anyone violates a restraining order, or even are alleged to have violated a restraining order, they are subject to arrest.

Another extremely negative impact of having a restraining order entered against you is that the restraining order can limit or even temporarily eliminate your rights under the Second Amendment to the United States Constitution to own or possesses any guns, firearms or even ammunition.

Having a restraining order entered against you can have negative impacts on your employment, and in some cases, your reputation in the community as well.

Typical challenges that arise in preparing an effective restraining order defense in California include situations where all that you have is the word of the victim against your own word as there are no pictures or other percipient witnesses to support your side of the story.

The importance of proper preparation for a restraining order defense is very important as that can enable you to properly challenge the issuance of a restraining order and in appropriate situations possibly convince the court that one is not necessary.   Due to the serious consequences of a restraining order parties are advised to seek an experienced attorney who has knowledge with these types of legal issues as well as experience in restraining order defense.

The first essential element for any restraining order defense is to carefully review and study the relevant statutes to determine the elements required for the particular type of restraining order that is being sought.

In the State of California for example, there are several different types of restraining orders such as civil harassment, domestic violence restraining orders, restraining orders involving elder abuse, workplace violence, emergency protective orders, and criminal protective orders.

Elements of restraining order defense in California.

Proper research of the law regarding the particular type of restraining order that is being sought will allow you to determine who has the authority to issue them, the burden of proof required in order to obtain the restraining order, the duration of the restraining order, and most important of all, what elements are required in order to obtain them.

The second essential element for any restraining order defense is to carefully review the allegations made in order to determine if those allegations do or not apply to each element required for the particular order of protection being requested.

One example that is fairly common would be the issuance of a temporary restraining order in California based on an allegation of domestic violence in that case the burden of proof is very low in that a reasonableness of abuse or possible abuse will be enough.  Meeting that lower burden of proof however will entitle the requesting party to a restraining order that will last only until an evidentiary hearing can be held to determine if a longer protective order such as a permanent order should be issued.  In order to obtain an order with a longer duration will require a higher burden of proof known as a finding of a preponderance of the evidence.  A preponderance of the evidence means that the party that has the most evidence supporting their position will prevail.   Many judges would agree that where it can be shown “it is more likely than not” that the elements necessitating a restraining order are met, that a restraining order must be issued by law.

In order to obtain any long-term restraining order based on domestic violence the protected party will need to show both a relationship and abuse.  The elements of abuse for domestic violence are detailed in California Family Law Code § 6300 et seq.

The third essential element for any restraining order defense is for the defending party or their attorney to persuade the court that the allegations asserted by the other party do not fit the definition of abuse.

In some cases a declaration will be filed by the protected party that is exaggerated or consists mostly of vague generalizations with no specific facts provided.  In these situations a good argument can be made that the other party has failed to provide any specific details of circumstances and is therefore not credible because of the lack of details.

For instance if the declaration alleges that the petitioner has been harassed numerous times an effective defense strategy would be to request that the petitioner identify each and every instance of harassment and whether the communication was not proper meaning a communication that served no legitimate interest.  The burden of proof is on the petitioner requesting the restraining order to prove each and every element required under the law. The duty of the attorney for the defending party is to attack the credibility of the petitioner.

An experienced litigation attorney can evaluate your situation and determine the appropriate restraining order defense strategy for your case.   Contact attorney Nathan Mubasher for a consultation and evaluation of your case.

Schedule a consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

 

Request for a continuance of a trial date in California

A request for a continuance of a trial date in California is the topic of this blog post.

This blog post will provide a general outline of the common grounds that may support a request for a continuance of a trial date in California.

A request for a continuance of a trial date in California may be made by filing a noticed motion but is typically done with an ex parte application. This is due to the fact that the circumstances that necessitate a request for a continuance of a trial date often arise when there is not sufficient time for a noticed motion for a continuance to be heard before the trial date.

Any request for a continuance of a trial date in California should be filed as soon as possible once you have discovered that you need to request a continuance in order to increase the chances that the Judge will grant your request.

Law governing a request for a continuance of a trial date in California.

California Rule of Court 3.1332 governs a request for a continuance of a trial date in California and states that,

“(a) Trial dates are firm

To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.

(b) Motion or application

A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.

(c) Grounds for continuance

Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include:

(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;

(2) The unavailability of a party because of death, illness, or other excusable circumstances;

(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;

(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;

(5) The addition of a new party if:

(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or

(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case;

(6) A party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or

(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.

(d) Other factors to be considered

In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include:

(1) The proximity of the trial date;

(2) Whether there was any previous continuance, extension of time, or delay of trial due to any party;

(3) The length of the continuance requested;

(4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;

(5) The prejudice that parties or witnesses will suffer as a result of the continuance;

(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;

(7) The court’s calendar and the impact of granting a continuance on other pending trials;

(8) Whether trial counsel is engaged in another trial;

(9) Whether all parties have stipulated to a continuance;

(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and

(11) Any other fact or circumstance relevant to the fair determination of the motion or application.”

It should be noted that the trial court is given a lot of discretion in ruling on a motion for a continuance of a trial date, however if the trial court denies the request for a continuance and that results in the denial of a fair hearing, the California Courts of Appeal have stated in published decisions that the discretion is abused when the lack of a continuance results in a denial of a fair hearing.

A California Court of Appeal has stated in a published decision that the strong public policy favoring disposition of cases on the merits outweighs other policies such as the Trial Court Delay Reduction Act which stress judicial efficiency.

Another California Court of Appeal has stated in a published decision that that the unavailability of trial counsel because of death, illness, or other excusable circumstances under normal circumstances should qualify as “good cause” for a continuance.

It should be stressed that waiting too long to request a continuance may result in the request for a continuance being denied.

If you need to request a continuance of a trial date in California you should contact an experienced litigation attorney that can review your situation and determine if you have sufficient grounds for a continuance, and if so, the length of the continuance that should be requested.

Contact attorney Nathan Mubasher for a consultation and evaluation of your case.

Schedule a consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

 

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 in California is authorized pursuant to Code of Civil Procedure section 632.

Code of Civil Procedure § 632 states that,

“In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision. The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision. After a party has requested the statement, any party may make proposals as to the content of the statement of decision.

The statement of decision shall be in writing, unless the parties appearing at trial agree otherwise; however, when the trial is concluded within one calendar day or in less than 8 hours over more than one day, the statement of decision may be made orally on the record in the presence of the parties.”

A statement of decision is where the Judge states the legal reasoning for its decision on certain contested also known as controverted issues.  A statement of decision can be requested in a civil, family law or probate case in California.

Importance of requesting a statement of decision in California.

Requesting a statement of decision is critical due to the fact that a failure to request a statement of decision on all of the controverted issues in a case will prove fatal to any possible appeal of the case as the reviewing court is required to presume that every fact essential to the judgment was proved and found by the trial court if no statement of decision has been requested.

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.

Any party that appeared at the trial can file and serve a request for a statement of decision in California.  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.

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).

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

If counsel makes a timely request for the statement, the 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.

It is very important to be very specific in drafting a request for a statement of decision as 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.

Requesting a statement of decision should be done in every contested litigation case.

An experienced litigation attorney can evaluate your situation and determine the appropriate course of action.  Contact attorney Nathan Mubasher for a  consultation and evaluation of your case.

Schedule a consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.