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.

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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.

 

 

Answer to a complaint in United States District Court

An answer to a complaint in United States District Court is the topic of this blog post.

An answer to a complaint in United States District Court must be filed within the time period specified in the Federal Rules of Civil Procedure unless you have obtained a stipulation from the opposing party or their attorney, or an order of the court granting you an extension of time to answer.

An answer to a complaint in United States District Court can also include a counterclaim against the plaintiff, or a crossclaim against other parties that involves the same set of facts alleged in the complaint.

Deadline to file an answer to a complaint in United States District Court.

Rule 12 of the Federal Rules of Civil Procedure specifies the time period that a defendant has to answer or otherwise respond, that time period is 21 calendar days after being served with the summons and complaint, although there are exceptions which are listed in Rule 12.

Rule 12 states in pertinent part that,

“(a) Time to Serve a Responsive Pleading.

(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:

(A) A defendant must serve an answer:

(i) within 21 days after being served with the summons and complaint; or

(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.

(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.

(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.”

Requirements for an answer to a complaint in United States District Court.

An answer to a complaint in United States District Court should specifically deny each statement in the complaint that is untrue and admit each statement that is true.

Rule 8 of the Federal Rules of Civil Procedure states in pertinent part that,

“(b) Defenses; Admissions and Denials.

(1) In General. In responding to a pleading, a party must:

(A) state in short and plain terms its defenses to each claim asserted against it; and

(B) admit or deny the allegations asserted against it by an opposing party.

(2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation.

(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.

(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.

(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.

(6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

(c) Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

  • accord and satisfaction;
  • arbitration and award;
  • assumption of risk;
  • contributory negligence;
  • duress;
  • estoppel;
  • failure of consideration;
  • fraud;
  • illegality;
  • injury by fellow servant;
  • laches;
  • license;
  • payment;
  • release;
  • res judicata;
  • statute of frauds;
  • statute of limitations; and
  • waiver

It is very important that an answer to a complaint in United States District Court that you specifically deny each allegation or part of an allegation of the complaint that is untrue as any allegations of the complaint that are not specifically denied in the answer will be deemed admitted.

If you do not have sufficient information or belief as to whether to admit or deny an allegation in the complaint you can deny the allegation based on a lack of information or belief.

An answer to a complaint in United States District Court should also include any affirmative defenses that you may have as well as admitting or denying all of the allegations in the complaint.  An affirmative defense is basically a defense where, even assuming that all of plaintiff’s allegations in the complaint were true, the law does not permit the plaintiff to win the case.

An answer to a complaint in United States District Court should include all relevant affirmative defenses as Rule 12(b) of the Federal Rules of Civil Procedure states that certain defenses may be waived if they are not raised in the answer or another response such as a motion to dismiss.  If an affirmative defense is not included in an answer the defendant may not be allowed to raise it later in the case unless they the court grants them leave of court to amend their answer.

An answer to a complaint in United States District Court must also state enough facts to support each affirmative defense.  If the answer fails to do so the plaintiff may file a motion to strike the defense on the grounds of an insufficient defense, or an immaterial allegation pursuant to Rule 12(f) of the Federal Rules of Civil Procedure.

An experienced litigation attorney can evaluate your situation and determine which affirmative defenses to include in your answer to the complaint as well as determine whether a counterclaim or crossclaim 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 vacate a judgment under Rule 60(b)(1) in United States District Court

A motion to vacate a judgment under Rule 60(b)(1) in United States District Court is the topic of this blog post.

A motion to vacate a judgment under Rule 60(b)(1) in United States District Court is filed on the grounds of mistake, inadvertence, surprise or excusable neglect.

Rule 60 of the Federal Rules of Civil Procedure 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: (1) mistake, inadvertence, surprise, or excusable neglect.”  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.”

Deadline to file Rule 60(b)(1) motion to vacate a judgment.

It should be noted that Rule 60 does state that the motion must be made within a reasonable time no more than one year after entry of the judgment or order, or date of the proceeding.   If you have recently become aware that a default judgment or any other judgment has been entered against you in Federal Court you need to act quickly to increase the probability that your motion to vacate a judgment under Rule 60(b)(1) as the Ninth Circuit Court of Appeal has stated that

the law is settled 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.

You also need to emphasize that you have affirmative defenses to the complaint as you must show that you have a meritorious defense in order to prevail on the motion.

Relevant factors considered by the court on a Rule 60(b)(1) motion.

In ruling on a motion to vacate a judgment under Rule 60(b)(1) the court will look at three factors in deciding whether to grant relief from the default which are:

Whether the plaintiff will suffer prejudice if the judgment is vacated,

Whether the defendant has a meritorious defense

Whether the defendant engaged in any culpable conduct that led to the default or judgment being entered against them.

In discussing Rule 60 the Ninth Circuit Court of Appeal has stated that this rule, like all the Federal Rules of Civil Procedure, “is to be liberally construed to effectuate the general purpose of seeing that cases are tried on the merits.” See Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983) (internal citations omitted.)

See also Federal Rule of Civil Procedure 1, “The Federal Rules should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

However a motion to vacate a judgment under Rule 60(b)(1) can be denied if it is shown that the moving defendant was culpable, and that conduct led to the default.

And the United States Supreme Court has stated that the determination of what conduct constitutes “excusable neglect” under Rule 60(b)(1) and similar rules “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” See Pioneer Inv. Svcs. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 395 (1993).

A motion to vacate a judgment under Rule 60(b)(1) does have a longer deadline than a motion to vacate a judgment in California under Code of Civil Procedure section 473(b).  However it has one significant difference in that the moving party is required to show a meritorious defense.

An experienced litigation attorney can evaluate your situation and determine whether filing a motion to vacate a judgment under Rule 60(b)(1) 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.

Heggstad petition in California

A Heggstad petition in California is the topic of this blog post.

A Heggstad petition is a petition that can be filed when an individual creates a revocable living trust and lists certain real or personal property in the trust document itself, or more commonly in an exhibit to the trust document, yet that individual fails to either notarize and record a Grant Deed transferring title of the real property into the revocable living trust, or they fail to sign any other documents that would transfer title to personal property into the revocable living trust.

If an individual’s property has been placed in a revocable living trust before their death, that property can be transferred directly to their heirs and beneficiaries upon their death without having to deal with the time and expense of a standard probate proceeding.

However in many cases the individual will fail to include all of their property in the trust before they die. When this happens the Heggstad petition may be available in California for property left outside of the trust.  It should be noted that a Heggstad petition in California may not be granted unless there is an attached schedule or similar document attached to the trust document that lists a specific real property, bank account, vehicle, etc.

Advantage of a Heggstad petition in California.

The advantage of filing a Heggstad petition in California is that it is much faster than a standard probate proceeding which takes a minimum of seven months or more and costs up to 6 percent of the value of the property in the Estate.  A Heggstad petition can be completed in two to three months in some cases, and also costs much less as it does not involve as much time and paperwork as a full probate proceeding.

A Heggstad petition is sometimes incorrectly referred to as a Heggstead, Hegstead, or Hegsted petition. The Heggstad petition is commonly known by that name due to the case entitled Estate of Heggstad (1993) 16 Cal. App. 4th 943, 951, in which a California Court of Appeal held that a written declaration of trust by the owner of real property that included an attached schedule listing a specific property was sufficient to create a trust in that property, and a transfer of title was unnecessary when a settlor declares himself or herself to be a trustee in his or her own property.

Heggstad petitions are sometimes filed under Probate Code § 17200, although Probate Code § 17200.1 states that, “All proceedings concerning the transfer of property of the trust shall be conducted pursuant to the provisions of Part 19 (commencing with Section 850) of Division 2” of the Probate Code.

Under Probate Code § 850(a)(3), a trustee or any interested person may file a petition when:

“The trustee is in possession of, or holds title to, real or personal property, and the property, or some interest, is claimed to belong to another;

The trustee has a claim to real or personal property, title to or possession of which is held by another; and

The property of the trust is claimed to be subject to a creditor of the settlor of the trust.”

A Probate Code § 850 petition may also include claims, causes of action, or matters that are normally raised in a civil action to the extent that the matters are related factually to the subject matter of the 850 petition.

This proceeding may be used to seek a court order that property listed on a trust schedule, title to or possession of which was not formally transferred to the trust, is nevertheless a trust asset.

Personal property as well as real property may be the subject of a Heggstad petition in California.

An experienced attorney can evaluate your situation and determine if filing a Heggstad petition is appropriate in your case.  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 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 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

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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.