Motion for a new trial in California

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

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

Law authorizing a motion for a new trial in California.

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

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

Code of Civil Procedure section 657 states in pertinent part that

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The California Supreme Court has also stated that,

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

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

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

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

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

Schedule a free consultation today with attorney Nathan Mubasher.

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

CONTACT INFORMATION FOR NATHAN MUBASHER:

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

DISCLAIMER:

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

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Collateral attack on a judgment in California

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

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

Advantages of a collateral attack on a judgment in California.

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

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

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

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

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

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

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

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

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

Schedule a free consultation today with attorney Nathan Mubasher.

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

CONTACT INFORMATION FOR NATHAN MUBASHER:

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

DISCLAIMER:

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

Consumers Legal Remedies Act in California

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

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

Statutes governing Consumers Legal Remedies Act in California.

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

Civil Code § 1780 states in pertinent part that,

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

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

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

(3) Restitution of property.

(4) Punitive damages.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Schedule a free consultation today with attorney Nathan Mubasher.

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

CONTACT INFORMATION FOR NATHAN MUBASHER:

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

DISCLAIMER:

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

 

 

Motion to expunge a Lis Pendens in California

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

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

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

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

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

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

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

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

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

Code of Civil Procedure § 405.31 states that,

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

Code of Civil Procedure § 405.32 states that,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Schedule a free consultation today with attorney Nathan Mubasher.

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

CONTACT INFORMATION FOR NATHAN MUBASHER:

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

DISCLAIMER:

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

Request for an extension of time to respond to a complaint in California

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

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

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

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

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

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

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

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

Obtain the funds to retain an attorney;

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

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

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

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

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

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

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

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

Schedule a free consultation today with attorney Nathan Mubasher.

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

CONTACT INFORMATION FOR NATHAN MUBASHER:

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

DISCLAIMER:

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

 

 

 

 

 

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.