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

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 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.

 

 

 

 

 

 

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 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.