Motion for a new trial in California

A motion for a new trial in California is the topic of this blog post.

The advantage of a motion for a new trial in California as compared to a motion for judgment notwithstanding the verdict is that it permits the court to reexamine an issue of fact or law. The trial court has broad discretion to reweigh the evidence, reassess credibility, disbelieve witnesses, and act as a thirteenth juror as stated by several published decisions of the California Courts of Appeal.

Law authorizing a motion for a new trial in California.

A motion for a new trial in California is governed by the statutes found in Code of Civil Procedure sections 656 through 663.2.

Code of Civil Procedure section 656 states that “A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.”

Code of Civil Procedure section 657 states in pertinent part that

“The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

  1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.
  1. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.
  1. Accident or surprise, which ordinary prudence could not have guarded against.
  1. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.
  1. Excessive or inadequate damages.
  1. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.
  1. Error in law, occurring at the trial and excepted to by the party making the application.”

When the application for a new trial is made for a cause mentioned in the first, second, third and fourth subdivisions of Section 657, it must be made upon affidavits; otherwise it must be made on the minutes of the court. See Code of Civil Procedure § 658.

Deadline to file a motion for a new trial in California.

There are strict deadlines that must be met in order to file a motion for a new trial in California.

A party that wants to file a motion for a new trial in California must first serve and file a notice of their  intention to move for a new trial and specify all of the seven grounds listed in section 657. This MUST be done in a timely manner or the motion will be denied.

Code of Civil Procedure § 659 states that, “(a) The party intending to move for a new trial shall file with the clerk and serve upon each adverse party a notice of his or her intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court, or both, either:

(1) After the decision is rendered and before the entry of judgment.

(2) Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest; provided, that upon the filing of the first notice of intention to move for a new trial by a party, each other party shall have 15 days after the service of that notice upon him or her to file and serve a notice of intention to move for a new trial.

(b) That notice of intention to move for a new trial shall be deemed to be a motion for a new trial on all the grounds stated in the notice. The times specified in paragraphs (1) and (2) of subdivision (a) shall not be extended by order or stipulation or by those provisions of Section 1013 that extend the time for exercising a right or doing an act where service is by mail.”

Within 10 calendar days after filing the notice of intention to move for new trial the party must file and serve any supporting affidavits unless a stipulation or court order has been obtained extending the time period. See Code of Civil Procedure § 659a.

A memorandum of points and authorities with citations to case law and statutory authority must be drafted and should be filed and served at the same time as the supporting affidavits.

The power of the court to rule on a motion for a new trial shall expire 60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier, or if such notice has not theretofore been given, then 60 days after filing of the first notice of intention to move for a new trial. If such motion is not determined within said period of 60 days, or within said period as thus extended, the effect shall be a denial of the motion without further order of the court. See Code of Civil Procedure § 660 for more details.

The California Supreme Court has stated that trial courts have broad discretion in ruling on motions for new trial, with great deference given to the ruling, which will be set aside only on a showing of “manifest and unmistakable abuse of discretion.” See Brandelius v. City and County of San Francisco (1957) 47 Cal.2d 729, 733-734; see also Jimenez v. Sears Roebuck & Co. (1971) 4 Cal.3d 379, 387.

The California Supreme Court has also stated that,

“The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.  This is particularly true when the discretion is exercised in favor of awarding a new trial, for this action does not finally dispose of the matter.  So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside.”  See Jimenez v. Sears, Roebuck & Company, supra 4 Cal. 3d at 387. (Citations and quotations omitted.)

The California Supreme Court has stated that a motion for a new trial in California can also challenge judgments of dismissal after a demurrer is sustained without leave to amend, judgments of dismissal generally, judgments on the pleadings and decisions granting judgments on agreed statements of ultimate facts. See Carney v. Simmonds, (1957) 49 Cal. 2d 84, 88.

An experienced litigation attorney can evaluate your situation and determine whether filing a motion for a new trial is the appropriate strategy in your case.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

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

Schedule a free 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.

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Collateral attack on a judgment in California

A collateral attack on a judgment in California is the topic of this blog post.

A collateral attack on a judgment in California requires the filing of a separate lawsuit which is also known as an independent action in equity.  A collateral attack on a judgment is fundamentally different from a standard motion to vacate a judgment in that it involves the filing of another lawsuit to vacate the judgment for lack of personal jurisdiction.  The complaint could also include other causes of action such as vacating the judgment on the grounds of extrinsic fraud or mistake if appropriate.

Advantages of a collateral attack on a judgment in California.

A collateral attack on a judgment in California has some very important advantages which include,

(1) there is NO time limit for a collateral attack on a judgment,

(2) because filing an independent action in equity involves a separate lawsuit, the party seeking to vacate the judgment is allowed the full range of discovery methods authorized in California litigation including interrogatories, requests for admission, requests for production of documents, depositions, and most importantly, the use of oral testimony as witnesses can be served with a subpoena to appear at the trial, and

(3) the fact that a California Court of Appeal ruled in a recently published decision that laches cannot be invoked as a defense in cases where there has been a complete failure of service of process upon a defendant.

And there is another important advantage in that even if a motion to vacate is made under section 473 of the Code of Civil Procedure and is denied that does not always preclude an independent action in equity to set aside the judgment, in other words the denial of the previous motion is not entitled to collateral estoppel effect although collateral estoppel may apply if the defendant had an opportunity to present oral testimony at the section 473 motion hearing and the issues were fully litigated.  See Groves v. Peterson (2002) 100 Cal.App.4th 659, 668.

The California Supreme Court has stated that the reasoning behind the general rule that the denial of the previous motion is not entitled to collateral estoppel effect, which has been well settled in California for over 100 years, is the fact that, in the standard motion procedure, the moving party is limited to presenting ex parte affidavits of voluntary witnesses in most cases unless the trial court exercises discretion and permits a greater latitude.  In using the motion procedure the party does not have the right to produce oral testimony or to compel witnesses to attend for deposition or cross-examination.  The motion procedure, while simpler and more convenient, does not involve all the aspects of full litigation.  Because the remedies of a motion in the underlying case and an independent action in equity are cumulative, parties should be entitled to resort first to the convenient and expeditious remedy without worrying about the issue of collateral estoppel if the motion is denied.  Thus even if a section 473 motion has been denied, parties may still pursue an independent action that affords them all the advantages of a regular trial of the issue.

Technically speaking there is no time limit to filing an independent action in equity to vacate a judgment.  However if you have recently become aware that a judgment has been entered against you should contact an experienced civil litigation attorney that can evaluate your situation and determine if a collateral attack on the judgment is appropriate.

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

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Schedule a free 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.

Consumers Legal Remedies Act in California

The Consumers Legal Remedies Act in California is the topic of this blog post.

The Consumers Legal Remedies Act is act is also known as the CLRA and is a very potent weapon that may be used by a California consumer against a business or service provider who is using unfair or deceptive trade practices.  The CLRA provides remedies for unfair or deceptive trade practices and is very detailed.

Statutes governing Consumers Legal Remedies Act in California.

The statutes governing the Consumers Legal Remedies Act in California are found in Civil Code sections 1750 through 1784.  The damages available include actual damages, an injunctive order enjoining the acts, methods or practices, restitution, punitive damages and reasonable court costs and attorney’s fees.  A plaintiff who is a senior citizen over the age of 65 years or disabled as defined by subdivisions (f) and (g) of Civil Code section 1761 can also be awarded additional damages of up to $5,000.00 in certain cases.

Civil Code § 1780 states in pertinent part that,

“(a) Any consumer who suffers any damage as a result of the use or employment by any person of a method, act, or practice declared to be unlawful by Section 1770 may bring an action against that person to recover or obtain any of the following:

(1) Actual damages, but in no case shall the total award of damages in a class action be less than one thousand dollars ($1,000).

(2) An order enjoining the methods, acts, or practices.

(3) Restitution of property.

(4) Punitive damages.

(5) Any other relief that the court deems proper.

(e) The court shall award court costs and attorney’s fees to a prevailing plaintiff in litigation filed pursuant to this section. Reasonable attorney’s fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiff’s prosecution of the action was not in good faith.”

There are more than 20 separate categories of illegal practices listed in Civil Code § 1770.  These include passing off goods or services as those of another, using deceptive representations or designations of geographic origin in connection with goods or services, and representing as original or new goods that have deteriorated unreasonably or are altered, reconditioned, reclaimed, used, or secondhand.

Requirements before filing a lawsuit under the Consumers Legal Remedies Act in California.

The CLRA does have some very specific requirements that must be followed.  Before a lawsuit can be filed requesting damages under the CLRA the plaintiff must first give the defendant notice of the violation and allow them a specific period of time to make things right.

At least 30 days before filing a lawsuit under the CLRA, the plaintiff must give the potential defendant notice of the alleged violation and demand that he or she “correct, repair, replace or otherwise rectify” the prohibited practices.  The notice must be in writing and sent by certified or registered mail, return receipt requested, to the place where the transaction occurred, or to the potential defendant’s principal place of business within California pursuant to Civil Code section 1782(a)(2).

The complaint must contain allegations that proper notice was given.  If a plaintiff files a complaint requesting damages without first sending the required notice, the claim can be dismissed.  This defect cannot be cured by amendment.  Failure to provide notice after litigation has started will not be effective, notice must be given in order to state a claim, failure to give notice before filing any complaint will result in a Court dismissing the case with prejudice.

Messages sent by email, fax, or standard mail are not sufficient, and the notice must also be sent to the place where the transaction occurred, or to the potential defendant’s principal place of business within California pursuant to pursuant to Civil Code § 1782 (a)(2).

The notice is intended to give the manufacturer or vendor sufficient notice of alleged defects to permit appropriate corrections or replacements, and to facilitate settlements of consumer actions wherever possible before a complaint is filed.

It should be noted that a plaintiff that is requesting only injunctive relief under the CLRA does not have to serve the required notice, and a plaintiff can file a complaint that requests only injunctive relief and later amend their complaint and request damages if they include allegations that they served the required notice on the defendant.

A defendant may establish good faith by introducing evidence of their attempts to comply with a consumer’s demand pursuant to Civil Code section 1782(3).

A defendant may avoid liability under the CLRA if they can prove that any alleged violation was not intentional; it resulted from a bona fide error; and they made an appropriate correction, repair, or replacement, or provided another remedy pursuant to Civil Code section 1784.

An experienced litigation attorney can evaluate your situation and determine whether sending a demand letter requesting that a business or company correct their violations of the Consumers Legal Remedies Act is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

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

Schedule a free 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.

 

 

Motion to expunge a Lis Pendens in California

A motion to expunge a Lis Pendens in California is the topic of this blog post

The technical name for a Lis Pendens is a notice of pendency of action. The term Lis Pendens is more commonly used and is Latin for pending lawsuit.

The statutes governing a Lis Pendens in California are found in Code of Civil Procedure sections 405.1 through 405.39.

Code of Civil Procedure § 405.20 authorizes the recording of a Lis Pendens and Code of Civil Procedure § 405.4 states that, “Real property claim” means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility.”

Law authorizing a motion to expunge a Lis Pendens in California.

A motion to expunge a Lis Pendens in California is authorized by Code of Civil Procedure section 405.30 which states that,

“At any time after notice of pendency of action has been recorded, any party, or any nonparty with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice. However, a person who is not a party to the action shall obtain leave to intervene from the court at or before the time the party brings the motion to expunge the notice. Evidence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.”

Burden of proof on motion to expunge a Lis Pendens in California.

Once the motion to expunge has been filed the burden is on the plaintiff to show that at least one of the causes of action of their complaint states a real property claim.  The Court must order the notice expunged if the complaint does not state a real property claim.

Code of Civil Procedure § 405.31 states that,

“In proceedings under this chapter, the court shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice where the court finds the pleading does not contain a real property claim.”

Code of Civil Procedure § 405.32 states that,

“In proceedings under this chapter, the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice if the court finds the claimant has not established the probable validity of the real property claim.”

Grounds for filing a motion to expunge a Lis Pendens in California.

The most common grounds for expunging a Lis Pendens in California are that the complaint does not state a real property claim as required by California law.

Another ground for expunging a Lis Pendens in California is on the grounds that it is void and invalid as the Plaintiff did not comply with the requirements of Code of Civil Procedure §  405.22 which states that, “ Except in actions subject to Section 405.6, the claimant shall, prior to recordation of the notice, cause a copy of the notice to be mailed, by registered or certified mail, return receipt requested, to all known addresses of the parties to whom the real property claim is adverse and to all owners of record of the real property affected by the real property claim as shown by the latest county assessment roll. If there is no known address for service on an adverse party or owner, then as to that party or owner a declaration under penalty of perjury to that effect may be recorded instead of the proof of service required above, and the service on that party or owner shall not be required. Immediately following recordation, a copy of the notice shall also be filed with the court in which the action is pending. Service shall also be made immediately and in the same manner upon each adverse party later joined in the action.”

Code of Civil Procedure § 405.23 states that, “Any notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner and a proof of service in the form and content specified in Section 1013a has been recorded with the notice of pendency of action.”

The recording of a Lis Pendens against a real property clouds the title and may prevent any transfer of the real property.  Therefore, the Lis Pendens procedure is abused very frequently.

The California Supreme Court has stated that, Courts have long recognized that “[b]ecause the recording of a lis pendens place[s] a cloud upon the title of real property until the pending action [is] ultimately resolved . . . , the lis pendens procedure [is] susceptible to serious abuse, providing unscrupulous plaintiffs with a powerful lever to force the settlement of groundless or malicious suits.”  See Malcolm v. Superior Court (1981) 29 Cal.3d 518, 523, fn. 2, 524 (emphasis in original).

Several California Courts of Appeal have stated in published decisions that the history of the legislation indicates a legislative intent to restrict rather than broaden the application of the remedy.

The California Courts of Appeal have stated in several published decisions that causes of action with equitable liens do not state a real property claim if those causes of action act only as an alternative or collateral means to collect money damages as the real purpose of the statutes is to provide notice of pending litigation and not to provide plaintiffs with more leverage for use in negotiating a settlement.

Causes of action for money only do not state a real property claim in California.

Attorney’s fees and costs available on a motion to expunge a Lis Pendens in California.

The prevailing party on the motion to expunge is entitled to reasonable attorney’s fees and costs pursuant to Code of Civil Procedure § 405.38 which states that,

“The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney’s fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney’s fees and costs unjust.”

An experienced litigation attorney can evaluate your situation and determine whether filing a motion to expunge a Lis Pendens is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

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

Schedule a free 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.

Rule 60(b)(2) motion to vacate a judgment in United States District Court

A Rule 60(b)(2) motion to vacate a judgment in United States District Court is the topic of this blog post.

A Rule 60(b)(2) motion to vacate a judgment in United States District Court is filed using the  grounds of newly discovered evidence. Rule 60(b)(2) refers to the Federal Rules of Civil Procedure.

Rule 60(b)(2) states in pertinent part that “(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b).” And Rule 60 also states that “(c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

A district court may vacate a prior judgment where the court is presented with newly discovered evidence, an intervening change of controlling law, manifest injustice, or where the prior order was clearly erroneous. Fed. R. Civ. P. 60(b)(1)-(6); United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998); School Dist. No. 1J, Multnomah County v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) see also Stewart v. Dupnik, 243 F.3d 549, 549 (9th Cir. 2000).

A Rule 60(B)(2) motion to vacate a judgment is appropriate if you can meet the burden required of the moving party as detailed in this blog post.

Requirements for a Rule 60(B)(2) motion to vacate a judgment in United States District Court.

The party filing a Rule 60(b)(2) motion to vacate a judgment in United States District Court must meet their burden of showing that,

The newly discovered evidence was discovered after the trial;

They exercised diligence to discover the evidence;

The evidence is not just cumulative or impeaching evidence;

The evidence is material;

The evidence would most likely produce a different result if the judgment were set aside, and

The evidence could not have been discovered in time to move for a new trial under Rule 59(b) of the Federal Rules of Civil Procedure which states that, “A motion for a new trial must be filed no later than 28 days after the entry of judgment.”

And several Circuit Courts of Appeal have also stated in published decisions that a Rule 60(b)(2) motion for relief from judgment is subject to the same standard as a motion under Rule 59 for a new trial on the grounds of newly discovered evidence.

If you become aware of new evidence that was material to your claim or defense and could not have been discovered earlier you need to contact an experienced civil litigation attorney as soon as possible to increase the probability that your motion will be granted as the law is settled in the Ninth Circuit and elsewhere that a district court has great discretion in deciding whether to grant a motion under Rule 60. It is subject to review only for abuse of discretion.

An experienced litigation attorney can evaluate your situation and determine whether filing a motion to vacate a judgment under Rule 60(b)(2) is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

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

Schedule a free 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 an extension of time to respond to a complaint in California

A request for an extension of time to respond to a complaint in California is the topic of this blog post.

A request for an extension of time to respond in California is typically made by filing an ex parte application as the circumstances that necessitate the request usually arise when there is not sufficient time for the request to be heard by filing a noticed motion.

Law authorizing a request for an extension of time to respond to a complaint in California.

A request for an extension of time to respond in California is authorized by Code of Civil Procedure section 1054(a) which allows a judge to grant an extension of tine not exceeding 30 days to respond to a complaint upon a showing of good cause.  An extension of time may also be granted to respond to a cross-complaint as well.

Code of Civil Procedure § 1054(a) states that, “When an act to be done, as provided in this code, relates to the pleadings in the action, or the preparation of bills of exceptions, or of amendments thereto, or to the service of notices other than of appeal and of intention to move for a new trial, the time allowed therefor, unless otherwise expressly provided, may be extended, upon good cause shown, by the judge of the court in which the action is pending, or by the judge who presided at the trial of the action; but the extension so allowed shall not exceed 30 days, without the consent of the adverse party.”

Before filing a request for an extension of time to respond in California most judges want the defendant to first contact the plaintiff or opposing party or their attorney and request that they stipulate to an extension of time to respond to the complaint. If the request is denied that fact should be mentioned in the supporting declaration to show to the judge that you attempted to obtain a stipulation but were unsuccessful.

Common grounds for a request for an extension of time to respond to a complaint in California.

The judge has discretion as to whether or not to grant an extension of time to respond in California.  Most judges would consider that a defendant has established good cause if they can show that they need an extension of time to,

Obtain the funds to retain an attorney;

They have contacted an attorney that needs more time to review the case;

A family emergency requires the defendant to travel out of town, or

A medical emergency involving the defendant such as hospitalization prevents them from filing a timely response to the complaint.

Any declarations supporting a request for an extension of time to respond should include sufficient facts and evidence detailing the circumstances that have necessitated the request for an extension of time to respond.

The request for an extension of time should also state whether or not any previous extensions of time to respond by court order or stipulation have been granted.

An experienced litigation attorney can evaluate your situation and determine whether filing a request for an extension of time to respond is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

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

Schedule a free 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.

 

 

 

 

 

Motion for judgment notwithstanding the verdict in California

A motion for judgment notwithstanding the verdict in California is the topic of this blog post.

A motion for judgment notwithstanding the verdict is more limited in scope than a motion for a new trial.  However if it is used in the appropriate situations it is much more powerful due to the  fact that if you win the motion for judgment notwithstanding the verdict the court will enter a new and different judgment in your favor.

A motion for judgment notwithstanding the verdict in California (JNOV) challenges the legal sufficiency of the evidence at trial.  A JNOV also differs from a motion for a new trial in that a JNOV motion consists of a single document.  The entire motion, including the notice of motion and memorandum of points and authorities, is due at the same time as the notice of intent to move for a new trial.

Law authorizing a motion for judgment notwithstanding the verdict in California.

A JNOV motion in California is authorized under Code of Civil Procedure section 629 which states in pertinent part that, “The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days’ notice, or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.”

Deadline to file a motion for judgment notwithstanding the verdict in California.

Because a motion for a new trial and a JNOV motion are often sought concurrently, the time limit for filing the JNOV motion is exactly the same as the time for filing a notice of intent to move for a new trial.  A JNOV motion must be filed and served on all adverse parties within the period for filing a new trial notice of intent under Code of Civil Procedure Section 659 which is within 15 days of the date of mailing notice of entry of judgment by the clerk of the court, or service upon the moving party by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest.   This time period cannot be extended by any court or any stipulation.

Since a JNOV motion contemplates entry of a new and different judgment, a proposed judgment should be included with the motion or be submitted at the time of hearing at the latest.  Prompt compliance is extremely important because the trial court has a very limited time in which to act on the JNOV motion.

Limitations on motion for judgment notwithstanding the verdict in California.

The main limitation to the JNOV motion is that the trial court’s power to grant a motion for JNOV is severely limited.  The trial court may not grant a JNOV motion unless there is an actual verdict.  If the jury returns no verdict or an incomprehensible verdict, a JNOV is not appropriate. See Mish v. Bruckus, (1950) 97 Cal. App. 2d 770, 776.

However if no substantial evidence supports the jury’s verdict a JNOV motion must be granted as one California Court of Appeal has stated in a published decision that the purpose of a motion for judgment notwithstanding the verdict is not to afford a review of the jury’s deliberation but to prevent a miscarriage of justice in those cases where the verdict rendered by the jury is without foundation.

An experienced litigation attorney can evaluate your situation and determine whether filing a motion for judgment notwithstanding the verdict is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

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

Schedule a free 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.