Demurer to a complaint in California

Responding to a complaint in California by filing a demurrer is the topic of this blog post.

A demurrer is a response to a pleading that objects to or challenges a pleading filed by an opposing party. The word demur literally means “to object”; a demurrer is the legal document that makes the objection.

There are two types of demurrers in California, a general demurrer, and a special demurrer.  A demurrer can also be filed in response to a cross-complaint.

A general demurrer is usually filed on one of two grounds, failure to state facts sufficient to constitute a cause of action, and the Court lacks subject matter jurisdiction.

A special demurrer can be made on any one of several grounds, including uncertainty and lack of capacity to sue. The grounds for a special demurrer are waived unless they are raised by a special demurrer, or listed as affirmative defenses in the answer.

In most cases a demurrer will be filed instead of filing an answer.  Even if the demurrer is directed to only one cause of action in a complaint or cross-complaint the party that filed the demurrer is not required to answer the remaining causes of action until after the Court has ruled on the demurrer.

A demurrer will extend the period of time to file an answer, but it does not extend the period of time for filing a motion to strike.  In certain cases filing a motion to strike is also appropriate. If that is the case the motion to strike must be concurrently filed and served along with the demurrer, and must be set for hearing on the same day and time with the demurrer.

Code of Civil Procedure § 430.10 states, in pertinent part: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in section 430.30, to the pleading on any one or more of the following grounds…(e) the pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible. (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

Filing a special demurer is not permitted in limited civil cases under the provisions of Code of Civil Procedure § 92(c).

Filing a general demurrer is appropriate in cases where the at least one of the causes of action of the complaint does not state sufficient facts to constitute a cause of action.  The most common situation would be where the plaintiff has failed to allege an essential element of the cause of action.

It should be noted that the California legislature has imposed a meet and confer requirement for demurrers which is found in Code of Civil Procedure section 430.41.  The new requirements were added by statute in 2015 and became effective on January 1, 2016.

California law now imposes a meet and confer requirement before filing most demurrers to a complaint, cross-complaint or answer under the provisions of Code of Civil Procedure section 430.41.

The meet and confer effort must be made at least five days before the responsive pleading is due.

The California legislature enacted this requirement in the hopes that it would reduce the number of demurrers that are filed by imposing a requirement to meet and confer before most demurrers can be filed.

A demurrer is fundamentally different from other motions such as a motion for summary judgment in that there is no extrinsic evidence allowed unless it could be judicially noticed.   Thus for most demurrers the court can only look at the “four corners of the pleading.” However any exhibits that are attached to the complaint can be judicially noticed and if they contradict any of the allegations in the complaint the allegations in the complaint will be disregarded and the court will rule based on the facts stated in the attached exhibits.

Careful analysis and research is essential before making a decision as to whether or not filing a demurrer is an appropriate response as the sole issue raised by a general demurrer for failure to state a cause of action is whether the causes of action being demurred to state sufficient facts to constitute a cause of action.

A common error made by some parties is filing a demurrer and attempting to argue that the plaintiffs have insufficient evidence or are not likely to prevail on their claims. This will not be successful as the law is settled in California that a demurrer for failure to state a cause of action is not concerned with the likelihood that the plaintiffs will prevail, nor even whether they have evidence to support their allegations.

A special demurrer for uncertainty is a disfavored ground for a demurrer. A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond which means that he or she cannot reasonably determine what issues they have to admit or deny, or what counts or claims are directed against them.

An experienced attorney can review a complaint or cross-complaint and determine whether or not filing a demurrer to the complaint or cross-complaint is appropriate. Many complaints are poorly written and the filing of a demurrer in the appropriate situations may result in certain causes of action such as fraud being dismissed for failure to state a cause of action.

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.

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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Answer to a complaint in California

Filing an answer to a complaint in California is the topic of this blog post.

Contacting an experienced litigation attorney as soon as possible once you have been served with a complaint is extremely important as in most cases you will only have 30 calendar days to file your answer with the court.

An experienced litigation attorney will meet with you to discuss your situation as well as review the complaint. They will then decide on the appropriate response to the complaint.  If the complaint is defective in some manner they may decide that the best course of action is to file a demurrer or motion to strike instead of filing an answer.  If the complaint is not defective they will draft and prepare your answer to the complaint.

California law permits unverified complaints unless a specific statute or code provides otherwise, although any complaint may be verified at the option of plaintiff.  Civil complaints in California can be either unverified or verified.

The law in California states that if a complaint is verified the answer to the complaint must be verified. California law also states that any answer to a complaint filed by a governmental entity must be verified. See Code of Civil Procedure § 446.  These rules only apply in unlimited civil cases in which the demand of the complaint exceeds $25,000.00.

Verified answers must admit or deny each and every paragraph of the complaint, and must also contain a verification signed by the defendant or defendants stating that they have read the answer and everything contained therein is true and correct to the best of their knowledge. The verification must be signed under penalty of perjury.  Failing to verify your answer when one is required will subject the answer to a motion to strike on the grounds that it is not verified.

In your answer to a verified complaint you must admit or deny each and every paragraph of the complaint or deny on the basis of lack of information or belief.  Your attorney will go over the complaint with you and tell them what your response is to each and every paragraph.

Your answer must be carefully reviewed as any allegations of a verified complaint that are not specifically denied are deemed admitted.

Answering an unverified complaint in California is much easier as the law in California states that you can answer the complaint with a general denial in which you generally deny all of the allegations of the complaint.

Your attorney will also include what are known as affirmative defenses which they will draft specifically for your answer based on your unique circumstances. An experienced litigation attorney will avoid the use of “boilerplate” affirmative defenses as that type of answer may be objected to on the grounds that the answer fails to state facts sufficient to state any defenses to the complaint.

Common affirmative defenses include:

The statute of limitation which means that the plaintiff has waited too long to file the lawsuit against you.

Failure to state a cause of action which means that the plaintiff has not alleged sufficient facts to constitute a cause of action.

Unclean hands which means that the plaintiff has engaged in conduct that should prevent them from winning their case.

Other affirmative defenses include accord and satisfaction, lack of consideration, waiver, laches, and estoppel.

An experienced attorney will draft an answer for you that will meet all of the specific requirements that California law requires for an answer.  For example your attorney will ensure that your various affirmative defenses are separately stated and that they refer to the causes of action to which they relate in a manner by which they may be intelligently distinguished. These requirements are imposed by Code of Civil Procedure § 431.30(g).

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.

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

 

 

Benefits of mediation in California

The benefits of mediation in California compared to litigation are the topic of this blog post.

Mediation is gaining in popularity as a very effective way of resolving a dispute without the need for litigation.

This blog post will provide a brief description of the mediation process as well as the benefits of mediation compared to litigation.

MEDIATION PROCESS

Mediation involves a neutral third-party known as a mediator working with all of the parties involved in a dispute to come to a settlement that benefits the parties and that they are willing to accept.

The cost of mediation is typically shared by the parties.

The mediator’s job is to assist the parties in reaching a solution to their issues and to reach an agreement that the parties can accept.  The mediator does not take sides or make judgments or provide advice to anyone.  Generally the mediator will work towards examining the underlying causes of the problem and then discuss what solutions best suit the unique needs of each party.

The role of a mediator is to facilitate communications between the parties so that they can reach an agreement that the parties can accept.

Mediation can be either voluntarily agreed to by both parties or in some cases a judge may order the parties in a lawsuit to attempt mediation in the hopes of reaching a settlement.  In a voluntary mediation both parties must agree to the mediation.  Mediation is confidential and the terms of any settlement are not disclosed to any other parties not involved in the mediation hearing.

If the parties are unable to reach an agreement in mediation they still have the option of going to court.  Any details about what was said at the mediation will not be disclosed or used at any court hearing.

MEDIATION IS FASTER THAN USING THE COURT SYSTEM

The first and most important benefit of mediation is that it is much faster than filing a lawsuit in Court.  With the current Court funding situation in California the reality is that it may take years before a case actually comes to trial and appeals can take even longer.

However an agreement reached in mediation can often be obtained in only several hours or in several mediation sessions spread over a few weeks.

MEDIATION IS MUCH LESS EXPENSIVE THAN USING THE COURT SYSTEM

 Using the civil justice system through the Court process can be very expensive and in some situations the costs can actually exceed the benefits. Civil litigation can not only be very expensive but the total cost can also be very hard to predict.

Another issue to consider is that in civil litigation the losing party can be required to pay the attorney’s fees for the other party.  The focus in mediation is on resolving the case in a constructive manner rather than destroying the other party.

Mediation is much less expensive than litigation because the time is spent working to resolve the case instead of fighting it out in court with filing motions.

Mediation costs are generally more predictable because the parties are present for most (if not all) of the time the mediator spends on the case.

IN MEDIATION BOTH PARTIES GET TO DECIDE INSTEAD OF A JUDGE

Mediation differs from going to court in that both parties decide the terms of any settlement instead of having a judge decide.  Both parties have the responsibility for deciding the terms of any settlement.

In mediation instead of the dispute being viewed as a battle in court it is viewed as a problem to be solved. All decisions are made by the parties themselves, instead of someone else. This can be very appealing as many individuals would prefer to make their own choices, particularly in a situation where there may be complex tradeoffs instead of handing that power over to a judge.

Because the parties are in control during the mediation process they also control the outcome of the mediation.

MEDIATION IS LESS FORMAL THAN GOING TO COURT

The lack of formality in the mediation process allows the parties to be more engaged than they would be in court litigation in that the court system has many rules and procedures that are designed to separate the parties. Since a mediator deals directly with the parties they can convince the parties to focus on determining what their needs and interests are instead of simply repeated their stated positions.

MEDIATION IS CONFIDENTIAL

Mediation typically takes place in a mediator’s office or a lawyer’s office rather than in a public courtroom.   As a general rule parties in mediation are allowed to decide what information is provided on the paperwork.  Mediation allows the parties to avoid the often ugly allegations and personal information that ends up in the public record.

Court cases are public including the records and transcripts.  Mediation is confidential as any evidence introduced during mediation cannot be used or even disclosed at any court hearings.

The confidentiality of mediation is another compelling reason to consider using mediation.

SATISFACTION RATES ARE HIGHER WITH MEDIATION

Parties that used mediation are more likely to report higher satisfaction than parties that used the court system.  Due to the active involvement of the parties during the mediation process they are more likely to comply with the terms of any settlement reached during the mediation than parties that used the court system.

Statistics show that parties that use mediation reach a settlement approximately 70 to 80% of the time.

The author of this blog post, 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 training from the United Nations Institute for Training and Research.

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.

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

 

Motion for summary judgment in California

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

The statutory authorization for a motion for summary judgment in California is found in Code of Civil Procedure section 437c(a)(1) which states in pertinent part that, “Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.”

A party can also file a motion for summary adjudication along with a motion for summary judgment or in a separate motion.  Summary adjudication is appropriate when the moving party can clearly show

  • There is no triable issue of material fact as to whether a defendant did or did not owe a duty to the other party, and
  • There is no merit to a claim for punitive damages as no reasonable jury would find clear and convincing evidence of malice, fraud, oppression, or approval by any principal against whom punitive damages are being sought.

Code of Procedure section 473(c) (f)(1) limits summary adjudication motions to four specific types of issues:

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

ADVANTAGES OF A MOTION FOR SUMMARY JUDGMENT IN CALIFORNIA

The advantage of filing a motion for summary judgment in California is that if the moving party can provide enough specific facts and evidence to convince the Court that there are no triable issues of material fact they can win their motion for summary judgment and avoid the delay and expense of having to proceed to trial.

California law states that if there are no triable issues of material facts the Court must grant the motion as Code of Civil Procedure section 437c(c) states in pertinent part that, “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

REQUIREMENTS FOR A MOTION FOR SUMMARY JUDGMENT IN CALIFORNIA

California law does impose several strict requirements that must be met in filing a motion for summary judgment.

  • The party moving for summary judgment must wait until at least 60 days have passed since the general appearance of the party or parties against whom the motion is directed unless the Court orders otherwise pursuant to Code of Civil Procedure section § 437c(a)(1).
  • The party filing a motion for summary judgment must give a minimum of 75 calendar day’s notice of the hearing on the motion for summary judgment. California law does not specify any statutory procedure for shortening the notice period for a motion for summary judgment.
  • A motion for summary judgment in California must be heard no later than 30 days before the date of the trial unless the court orders otherwise.

Code of Civil Procedure § 437c(a)(2) states that, “Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing.  If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States.  If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.”

Code of Civil Procedure § 437c(a)(3) states that, “The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.  The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.”

Another important requirement on a motion for summary judgment in California is that the moving party must include what is known as a separate statement of undisputed material facts which lists all material facts that they contend are undisputed.  The separate statement must also include a reference to the supporting evidence for each individual material fact.

A motion for summary judgment can be supported by affidavits or declarations, admissions, responses to interrogatories and deposition transcripts.

Code of Civil Procedure § 437c (b)(1) states that,

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.  The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.  The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion.”

BURDEN OF PROOF FOR PARTY FILING A MOTION FOR SUMMARY JUDGMENT

A plaintiff filing a motion for summary judgment must meet their burden of showing that there is no defense to a cause of action and that they moving party has proved each element required for that cause of action which would entitle them to judgment.

Once the plaintiff has met their burden the defendant must then show that a triable issue of material fact or facts exists as to that cause of action or their defense to that cause of action.  The defendant cannot just rely on any allegations in their answer but must detail the specific facts showing that a triable issue of material fact exists as to that cause of action or their defense to that cause of action.  Thus a plaintiff in a case where all of the facts and evidence obtained during discovery clearly shows that a defendant has no defense to their complaint has a very good chance of winning a motion for summary judgment.

A defendant filing a motion for summary judgment must meet their burden of showing that a cause of action has no merit by showing that one or more elements of a cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.  Once the defendant has met their burden the plaintiff must then show that a triable issue of one or more material facts exists as to that cause of action or a defense to that cause of action.

The plaintiff cannot just rely on any allegations in complaint but must detail the specific facts showing that a triable issue of material fact exists as to that cause of action or their defense to that cause of action.

This means that a defendant in a case where all of the facts and evidence obtained during discovery clearly shows that the plaintiff has no case against them has a very good chance of winning a motion for summary judgment.

Code of Civil Procedure § 437c(p)(1) and (2) state that for purposes of motions for summary judgment and summary adjudication,

“(1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action.  Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.”

(2) A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.  Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.”

An experienced litigation attorney can analyze all of the unique facts and circumstances of any particular case in order to determine if filing a motion for summary judgment is a good strategy.

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.

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

How to vacate a judgment in California

How to vacate a judgment in California is the topic of this blog post.

This blog post will discuss four of the most common methods by which a default or judgment can be vacated in California.

DISCRETIONARY RELIEF UNDER CCP SECTION 473(b)

The first and most well known method for vacating a default or judgment is filing a motion to vacate under Code of Civil Procedure section 473(b) on the grounds of mistake, inadvertance, surprise or excusable neglect.

This is the most commonly used method for vacating a default or judgment in California. California Code of Civil Procedure § 473(b) states in pertinent part that:

“The Court may, upon any terms as may be just, relieve a party, or his or her legal representative from a judgment, dismissal, order or other proceeding, taken against him or her through his or her mistake, inadvertance, surprise or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

This motion is known as discretionary relief as the judge has the discretion to grant or deny the motion.

Note that the code section states that the motion must be made within a reasonable period of time and that six months is the deadline.  This means that the moving party must act quickly. As a result of this requirement for action within a reasonable time, a moving party has the burden of showing that he or she acted diligently once learning of the judgment. Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420. Whether a party acted diligently is a question of fact for the trial court. (Ibid.)

Another factor to consider is that the California courts have held that the six-month period runs from entry of default, not entry of judgment.  See Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.

A motion to vacate a default or judgment under section 473 is typically filed when a party has been served with a summons and complaint but failed to file a timely response due to a medical or family emergency or other similar situation. As every case is unique it is best to consult with an experienced attorney who can review the situation and determine the best course of action.

There are several requirements that the moving party must meet when filing a motion for discretionary relief under section 473. They must show that they: (1) timely moved the Court for relief from default, (2) make a sufficient showing of mistake, inadvertance, surprise or excusable neglect, (3)  and provide a copy of their proposed pleading along with their motion, or file it as soon as possible before the hearing.

MANDATORY RELIEF UNDER CCP SECTION 473(b)

The second method of vacating a default or judgment in California is mandatory relief under Code of Civil Procedure section 473(b) using an attorney affidavit of fault.

Code of Civil Procedure section 473 states in pertinent part that,

“Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.

(c) (1) Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following:

(A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

(B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund.

(C) Grant other relief as is appropriate.

(2) However, where the court grants relief from a default or default judgment pursuant to this section based upon the affidavit of the defaulting party’s attorney attesting to the attorney’s mistake, inadvertence, surprise, or neglect, the relief shall not be made conditional upon the attorney’s payment of compensatory legal fees or costs or monetary penalties imposed by the court or upon compliance with other sanctions ordered by the court.”

Note that the judge cannot require that the attorney pay any of the costs or penalties as a condition of granting the relief.

The attorney affidavit of fault procedure differs in two major respects from the standard section 473 motion, (1) the six month deadline begins to run upon entry of judgment or dismissal, not when a default is entered, and (2) relief is mandatory, not discretionary as with a standard section 473 motion.

Where an “attorney affidavit of fault” is filed, there is no requirement that the attorney’s mistake, inadvertence, etc. be excusable meaning that relief must be granted even where the default resulted from inexcusable neglect by the defendant’s attorney, and the same rule applies to dismissals resulting from inexcusable neglect by the attorney. Further, the court is not concerned with the reasons for the attorney’s mistake.

The attorney affidavit of fault method can be very useful even if an attorney is hesitant to admit fault as it will avoid any possible malpractice claims by the client.

In order to use the attorney affidavit of fault method the attorney must sign the declaration. If you feel that your attorney was responsible for having a default or judgment entered against you contact an experienced attorney right away to discuss your situation.

RELIEF UNDER SECTION 473.5 FOR LACK OF ACTUAL NOTICE

Another method of vacating a judgment that is not as well known as a section 473 motion is a motion to vacate a default or judgment under California Code of Civil Procedure section 473.5 on the grounds that the service of the summons and complaint on the moving party did not result in actual notice in time to defend the lawsuit, and that their lack of actual notice was not caused by their avoidance of service or inexcusable neglect.

In the right situations, filing a motion under section 473.5 is very useful as the time limit for filing a motion under Section 473.5 is substantially longer than the six months allowed by Section 473.  Some attorneys and other legal professionals are not aware of Section 473.5 and are under the impression that after six months there is nothing that can be done to vacate a default judgment.

California Code of Civil Procedure section 473.5 states in pertinent part that:

“When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (I) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered”, and “Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.”

A motion to vacate under section 473.5 is often filed when someone may not have received actual notice of a lawsuit, including situations where substitute service may have been used at an address at which that person no longer lives, someone may have forgotten to give the defendant the summons and complaint or a situation where service was done by publication.

MOTION TO VACATE VOID JUDGMENT UNDER SECTION 473(d)

Another little known method of vacating a default or judgment in California is filing a motion to vacate a judgment under the provisions of Code of Civil Procedure section 473(d) on the grounds that the default or judgment is void.

Code of Civil Procedure section 473(d) states that, “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

If a judgment is void there is no time limit to filing a motion to vacate under Code of Civil Procedure section 473(d).

It should be noted that a judgment or order must be considered void and not merely voidable to be vacated under Code of Civil Procedure section 473(d).

A judgment can be considered void as a matter of law for several reasons including, (1) lack of subject matter jurisdiction, (2) lack of personal jurisdiction, (3) lack of or improper service of summons, (4) default improperly entered, and (5) a default judgment exceeding the amount demanded in the complaint.

“A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.”  In re Marriage of Goddard (2004) 33 Cal.4th 49, 56.

A judgment is void if the court lacked jurisdiction over the subject matter or parties, for example, if the defendant was not validly served with summons. Neumann v. Melgar (2004) 121 Cal.App.4th 152, 164.

Lack of or improper service of summons is generally the most common reason for a judgment to be void as a matter of law, particularly when the defendant has not been personally served as that would mean that they lacked any actual or constructive notice of the lawsuit.

This article has discussed the four most common methods of vacating a default or judgment in California.   There are other methods of vacating a default or judgment that have not been discussed. Every situation is unique and if you have had a default or judgment entered against you contact an experienced attorney as soon as possible. The attorney can review your situation and advise you as to whether or not filing a motion to vacate the default or judgment is likely to succeed and which method has the best chance of succeeding.

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.

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

 

 

 

 

Depositions in California

Depositions in California are the topic of this blog post.

Depositions in California are authorized by Code of Civil Procedure section 2025.010 which states in pertinent part that, “Any party may obtain discovery … by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.”

A party involved in litigation in California can take the deposition of any other party including adverse parties or co-parties. Parties can even take their own depositions so that they can have a record of their testimony in the event they are unavailable to testify at trial.

Depositions can also be taken of current officer, director, managing agent, or employee of a party pursuant to Code of Civil Procedure section § 2025.280: “The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify…”

Depositions in California have some very unique advantages compared to other forms of discovery as well as some disadvantages which will both be discussed in this article.

Code of Civil Procedure § 2025.220 states that a party that wants to take the oral deposition of another party must give notice in writing and the notice must contain certain required information.

A plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. On motion with or without notice, the court, for good cause shown, may grant to a plaintiff leave to serve a deposition notice on an earlier date. See Code of Civil Procedure § 2025.210.

A defendant may serve a deposition notice without leave of court at any time after that defendant has been served, or has appeared in the action, whichever occurs first.

Special notice requirements apply to the taking of a deposition of a corporation or other fictitious entity which is known as a deposition of person most knowledgeable or PMK deposition.

Code of Civil Procedure § 2025.230 states that, “If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.”

A recent California Court of Appeal case stated that “[t]he purpose of this provision is to eliminate the problem of trying to find out who in the corporate hierarchy has the information the examiner is seeking. E.g., in a product liability suit, who in the engineering department designed the defective part?” See Maldonado v. Sup.Ct. (ICG Telecom Group, Inc.) (2002) 94 Cal.App.4th 1390, 1395.

And a deposition notice is sufficient to compel a party or “party-affiliated” witnesses to produce books, records or other materials—including electronically-stored information—in their possession at the time of deposition … as long as the notice of deposition specifies with reasonable particularity the materials or category of materials (including any electronically-stored information) they are to produce. See Code of Civil Procedure § 2025.220(a)(4).

ADVANTAGES OF DEPOSITIONS:

  • Obtaining evidence from individuals or entities that are not parties to the action. A deposition is the only discovery method authorized by California law that permits you to obtain testimony, documents, electronically stored information, and other evidence from an individual or entity that is not a party to the action. See Code of Civil Procedure §§ 2020.010 through 2020.510.
  • Locks in testimony of opposing parties and possible unfriendly witnesses. Depositions are usually the best way to lock in the testimony of unfriendly witnesses and opposing parties.
  • Allows for personal observations of the witness. The attorney has an opportunity to personally observe the deponent in an examination setting and assess his or her potential effect on the trier of fact if the case goes to trial. And if the deposition is videotaped there is an additional advantage in that the trier of fact may also observe the demeanor of the witness during their deposition.
  • Obtain spontaneous responses. Your attorney can elicit more spontaneous and complete answers to his questions than with interrogatories because the witness’ responses are less likely to have been rehearsed with opposing counsel; and if the witness tries to evade a question or not answer it completely your attorney can immediately follow it with narrower, more precise questions until you are satisfied with the response.
  • No numerical limit to questions. Unlike the numerical limits imposed by California law on interrogatories and requests for admission, there are no limits on the number of questions that can be asked of a witness during a deposition although there is a general 7  hour time limit on the length of depositions for most individuals imposed by Code of Civil Procedure § 2025.290.
  • Defendants may obtain early discovery. If you are the defendant, you can notice a deposition as soon as you have been served with the complaint or appear in the action, whichever occurs first. Code of Civil Procedure § 2025.210(a).
  • Promoting settlement.  If you want to settle the case and your attorney is deposing someone with settlement authority, carefully worded questions supported by documents demonstrating the strength of your case may affect the other party’s confidence in its claims or defenses and help lessen a party’s resolve to bring the matter to trial.

DISADVANTAGES OF DEPOSITIONS

  • Cost. Preparing for and taking depositions may be more expensive than other forms of discovery, in that there are court reporter fees and videographer fees. There are also additional costs for attorney fees for time spent reviewing the file, preparing exhibits, researching legal issues, reviewing prior transcripts, preparing questions, and traveling to and taking the deposition.
  • Inefficient in some cases. Depositions can be inefficient unless sufficient time has been spent preparing for the deposition. Otherwise valuable time may be wasted sorting through facts and documents for the first time during the deposition. A skilled attorney will demand documents and review interrogatory responses to detailed factual questions before taking the deposition.
  • Reveals information to your opponent. You lose the advantage of surprising the opposing party and opposing counsel at trial by revealing the most probable areas of examination at trial and interrogation methods of your attorney, and it can also stimulate opposing counsel to prepare for trial more carefully, in that the questions asked by your attorney may reveal previously unknown facts and issues to opposing counsel.
  • Educates witnesses. There is a risk that witnesses who make poor showings at a deposition will learn by their mistakes and be coached to become stronger witnesses at trial. There is also the risk that the witness will disclose grounds for impeachment or weakness in testimony that the opposing party can use at trial.

An experienced attorney that has extensive experience in depositions can analyze your unique situation and determine if the advantages of taking depositions outweigh the disadvantages in your case.

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.

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

Limited-scope representation in California

Limited-scope representation in California is the topic of this blog post.

Limited-scope representation in California is also known as “unbundling”, “unbundled legal services”, or “discrete task representation.

The term limited-scope representation refers to a situation where you and an attorney agree that they will handle some parts of your case and you will handle the other parts.

This is very different from the more traditional arrangements between attorneys and their clients where an attorney is retained to provide legal services on each and every aspect of a case from start to finish.

EXAMPLES OF LIMITED-SCOPE ARRRANGMENTS

You can just consult an attorney and get legal information and advice about your situation when you need it.

You can hire the attorney lawyer to represent you only for certain issues in your case (like representing you at a hearing) while you do the rest yourself.

You can hire the attorney to prepare the legal documents but file them yourself and represent yourself in court.

You can hire the attorney to coach you on how best to represent yourself in court as well as help you prepare the evidence that you will be presenting in court.

You can hire the attorney to assist you with the more complicated parts of your case, such as discovery and legal research while you do the easier tasks yourself.

When you cannot afford to pay for an attorney to handle your entire case, limited-scope representation can be an excellent way for you to have legal help with your case while keeping costs down.

And the Courts in the State of California approve of limited-scope representation because they want to encourage people to get as much legal assistance as they need to protect their rights.

The Courts favor limited-scope representation because they know that you will do a much better job of following proper court procedures and presenting the important information in court if you have the help of an attorney during the more complicated parts of a case.

BENEFITS OF USING LIMITED-SCOPE REPRESENTATION

The benefits of using limited scope representation include but are not limited to:

  • You can save money on legal fees because you are only paying an attorney to do those parts of your case that you cannot do yourself.
  • The attorney can use his or her time more efficiently by focusing their attention on the tasks that you cannot effectively do yourself while leaving other more time-consuming tasks to you.
  • You can keep greater control of your case than if the attorney handles the entire case.
  • You may be able to recover some or all of the fees that you paid to the attorney in certain situations such as a contract dispute where the prevailing party is entitled to be awarded their attorney’s fees.

Before deciding whether or not to hire an attorney using a limited-scope arrangement it is a good idea to:

Discuss your case with an attorney in detail, including areas that you want to handle yourself. If you do not discuss the entire case with the attorney, even the parts that you think are simple and want to handle yourself, you will not know if you have overlooked something that is legally important.

Once you have had this discussion with the attorney, you and the attorney can agree on whether a limited-scope arrangement will work for you and your case and you can be comfortable that you have identified any hidden complications.

Decide if you are willing to take on full responsibility for those parts of the case you will handle on your own. Remember that the attorney went to law school and probably has years of experience in this area.  That means that he or she will know things you do not about the legal process.

If you instruct your attorney not to take certain steps, either to save money or because you want to remain in control, you will have the full responsibility for the outcome in the parts of the case you do yourself, even with an attorney coaching you.

CASES THAT ARE NOT SUITABLE FOR LIMITED-SCOPE REPRESENTATION

But, there are many situations when limited-scope representation may not be a good idea, such as situations where your case has a lot of technical issues such as

  • Malpractice cases.
  • Construction defect cases.
  • Cases involving conflicting claims to real estate.
  • Employment discrimination or wrongful termination cases.
  • Cases where you do not have enough time to spend educating yourself and effectively performing many of the tasks that you need to do.
  • Cases where there is a lot at stake such as a case where if you lose, you could lose your home, or owe a lot of money.
LIMITED-SCOPE REPRESENTATION VS. REPRESENTING YOURSELF

In certain situations, limited-scope representation is a better alternative than representing yourself:

  • Having an attorney helping you with parts of your case can save you a lot of time and energy because the attorney can educate you about the process and your specific issues. He or she can also help you find self-help books and other resources so you can handle the parts of the case when you are on your own.
  • An attorney, by being more removed from your case than you are, can see things about your case that you cannot. An attorney can help you focus on the legal issues and on what the court can do for you, and not let yourself be distracted by other issues and emotions.
  • An attorney can identify potential problems or hidden complications early on, so you can avoid making a costly mistake.

You and the attorney should have an in-depth discussion about all the aspects of your case, and agree on your respective responsibilities and certain important issues such as:

  • Who will decide on the strategy for your case?
  • Who will gather what information?
  • Who will prepare the information for the court?
  • Who will draft documents for the court?
  • Who will appear at court proceedings and settlement conferences?
  • Who will negotiate with the other side?

In making decisions about these issues, remember that the attorney has the education and experience to work on the more technical parts of your case, guide you throughout the court process, and spot important legal issues that you may not see on your own.

You and the limited-scope attorney will be working as a team on your case however it is still your case. If you and the attorney cannot agree on who should take on which parts of the case, or on specific decisions that need to be made in your case, you should listen to what the attorney says.  If the attorney feels strongly that the course you want to take is not in your best interests, listen carefully to the reasons why he or she is recommending you do something differently.

But, in the end, it is your case, your decision and your responsibility. You have the right to disregard the attorney’s advice, but if the case does not turn out the way you hoped, you have to be willing to accept the responsibility for your decision.

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.

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