Application for a temporary restraining order in California

An application for a temporary restraining order in California is the topic of this blog post.

This blog post will discuss an application for a temporary restraining order as well as a preliminary injunction in California.

The main focus of this blog post will relate to a real property dispute although the same general principles discussed herein would apply in other civil litigation in California as well.

Requesting a temporary restraining order (TRO) and preliminary injunction can be made using a regular noticed motion but is usually done using the ex parte application procedure.  The party requesting a preliminary injunction and TRO by ex-parte application must meet their burden of proof by showing competent evidence the great and irreparable harm that will result if a TRO is not issued and an order to show cause why a preliminary injunction should not also issue on an ex-parte basis.

Statutory authorization for an application for a temporary restraining order in California.

The statutes that authorize temporary restraining orders and preliminary injunctions in California are found in Code of Civil Procedure section 527.  California Rule of Court 3.1150 also governs preliminary injunctions and California Rules of Court 3.1200 through 3.1207 govern ex-parte notices.

The purpose of a preliminary injunction in a real property dispute is to preserve the status quo pending final resolution of the issues involved at the trial.   In ruling on the request for a preliminary injunction the trial court will determine the likelihood that the plaintiff will prevail on the merits and the trial, and the harm the plaintiff will suffer if the requested relief is not granted as compared with the harm the plaintiff would suffer if the preliminary injunction is issued.

In most situations if the Court grants the request they will issue a TRO and also issue an order to show cause why a preliminary injunction should not issue.   The issue of whether to grant the preliminary injunction will be made at a later hearing to be scheduled by the Court.

In most situations requests for injunctive relief in California are routinely granted when an interest in real property is involved.  This is due to the fact that real property is deemed unique by California law and injury or loss cannot be compensated in damages.  See Civil Code § 3387 which states that, “It is to be presumed that the breach of an agreement to transfer real property cannot be adequately relieved by pecuniary compensation.  In the case of a single-family dwelling which the party seeking performance intends to occupy, this presumption is conclusive. In all other cases, this presumption is a presumption affecting the burden of proof”; see also Korean Philadelphia Presbyterian Church v. California Presbytery, (2000) 77 Cal.App.4th 1069, 1084.

Temporary restraining orders in California are generally issued using an ex parte application on very short notice.  If a temporary restraining order is granted without notice pursuant to Code of Civil Procedure §527(c), the matter must be made returnable on an order to show cause why a preliminary injunction should not be granted on the earliest day that the business of the court will allow, but no later than 15 days or, if good cause appears to the court, 22 days from the date the temporary restraining order is issued.   See Code of Civil Procedure § 527(d)(1).

If you are requesting a preliminary injunction in California and you demonstrate a reasonable probability that you will succeed on the merits of your claim the Court must issue a preliminary injunction.

However if you want to file an application for a temporary restraining order and preliminary injunction in California you need to act quickly in filing your application and include enough competent evidence in your supporting declarations to support your application.

An experienced litigation attorney can evaluate your situation and determine if the circumstances of your case entitle you to file an application for a temporary restraining order and preliminary injunction in California.  Contact attorney Nathan Mubasher for a consultation and evaluation of your case.

Schedule a 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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Demand for a bill of particulars in California

A demand for a bill of particulars in California is the topic of this blog post.

The law in California states that it is not necessary for a plaintiff who sues on an account to include the items of any account in their complaint.  California law also states that if the defendant serves a written demand on the plaintiff they are required to furnish a copy of the account on which the complaint is based or be precluded from giving evidence thereof.

The demand for a bill of particulars procedure dates back to the days of early common law when plaintiffs who sued on a common count gave no specifics in their pleading as to the nature of the claim such as whether it was contract, quasi-contract, etc.  For this reason, courts allowed a demand for bill of particulars to enable defendant to discover what was being claimed and to prepare for trial.

This procedure, known as a bill of particulars forces the plaintiff to itemize the total sum upon which the complaint is based.

The demand for a bill of particulars must be in writing, and the bill of particulars must be delivered to the requesting party within 10 (ten) days if personally served, fifteen (15) days if served by mail.  And if the original complaint or cross-complaint was verified the bill of particulars must also be verified.

Law authorizing a demand for a bill of particulars in California.

Code of Civil Procedure § 454 states that,

“It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof.  The court or judge thereof may order a further account when the one delivered is too general, or is defective in any particular.

If the pleading is verified the account must be verified by the affidavit of the party to the effect that he believes it to be true; or if the facts are within the personal knowledge of the agent or attorney for the party, or the party is not within the county where the attorney has his office or from some cause unable to make the affidavit, by the affidavit of the agent or attorney.”

Advantages of a demand for a bill of particulars in California.

A demand for a bill of particulars enables any defendant who has been sued on an account such as common counts or certain actions in contract or quasi-contract to force plaintiff to itemize the account on which the complaint is based.  A demand for a bill of particulars is very useful in collection cases as it forces the plaintiff to itemize each and every charge on which the alleged balance is based.

Demanding a bill of particulars in California is not used as often nowadays.  However it remains a powerful tool for the defendant in an action on an account.  See Kaneko Ford Design v. Citipark, Inc., (1988) 202 Cal. App. 3d 1220, 1225, (reciting fact that the demand was made and complied with.)

If used in the appropriate situations, a demand for a bill of particulars can be an excellent tool for forcing the plaintiff to provide all of the documentation supporting their claim.

A demand for a bill of particulars in California is very powerful in situations where the plaintiff is an assignee of a finance or credit card company and may not have all of the documentation needed to serve a timely response.

Considering the fact that the current economy has led to an explosion resulting in the repeated sale and transfer of delinquent accounts, failing to utilize the demand for the bill of particulars is a critical error.

If, after furnishing the itemization, plaintiff finds that it was incomplete or incorrect, plaintiff must file a noticed motion with the court to amend the bill of particulars just as he or she would to amend a pleading.  Many assignees of finance or credit card companies will respond by simply providing the last statement, a response which is clearly defective, and in those situations a defendant may file a noticed motion for a further bill of particulars.

If a plaintiff fails to respond to the demand for a bill of particulars, the court may bar plaintiff from introducing evidence at trial in support of the account claimed if the defendant makes a motion.  In fact some Judges may allow this request to be made by a motion in limine at trial.

The bill of particulars furnished by the plaintiff is treated as an amplification of the pleadings and it is for this reason that it has the effect of a pleading.  At the trial, plaintiff is limited to the items and amounts specified in his or her bill of particulars.  No additional items can be shown.  See Baroni v. Musick (1934) 3 Cal App. 2d 419, 421.

Apart from actions on a book account, demands for a bill of particulars arise most often in the context of common counts which include actions for:  (1) money had and received;  (2) money lent or paid;  (3) services and material; (4) goods sold and delivered; and (5) quantum meruit.

However even though Code of Civil Procedure § 454 authorizes a demand for a bill of particulars in an action “on an account,” it is not available in an action on an account stated. Distefano v. Hall, (1963) 218 Cal. App. 2d 657, 677.

An account stated is a new agreement by the parties which supersedes the original contract and account.  Jones v. Wilton, (1938) 10 Cal. 2d 493, 498 .

Any action on it is therefore based on only the final balance agreed on by the parties and not on the original individual items of account.  Hallford v. Baird, (1938) 27 Cal. App. 2d 384, 398. Therefore, itemization of the account is not possible.

Although interrogatories and depositions can now be used for the same purpose, the bill of particulars remains an alternative procedure and it has certain advantages, as well in that,

(1) it is far easier and less costly to send out a simple demand for bill of particulars than it is to draft interrogatories or to prepare for and take depositions;

(2) responses to interrogatories or deposition questions can be used as evidence against the answering party at trial; but they are not conclusive (contradictory evidence is also admissible).  On the other hand, a bill of particulars is conclusive as to the items and amounts claimed; i.e., no other evidence is admissible at trial, unless the court grants leave to amend the bill of particulars, and,

(3) since it is not an interrogatory, the demand does not count against the numerical limits on specially prepared interrogatories under the Discovery Act.  Thus it is particularly useful in limited civil litigation where parties are strictly limited to 35 discovery requests pursuant to Code of Civil Procedure § 94.

The big disadvantage is that a bill of particulars is only available in actions on an account.  For that reason it is not an alternative to depositions and interrogatories in certain cases.

Experienced civil litigation attorney in Corona,  California.

An experienced litigation attorney can evaluate your situation and determine if serving a demand for a bill of particulars is appropriate given the unique circumstances of your case.  Contact attorney Nathan Mubasher for a  consultation and evaluation of your case.

Schedule a 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.

Enforcing a deposition subpoena in California

Enforcing a deposition subpoena in California is the topic of this blog post.

A deposition subpoena in California is authorized by code of Civil Procedure section 2020.410 which states in pertinent part that prior to trial, a party may serve a deposition subpoena for the production of business records on a nonparty.

If the nonparty fails to comply with the deposition subpoena a motion to enforce the deposition subpoena may be filed.

This blog post will discuss situations where a nonparty has been served with a deposition subpoena yet has failed to make any appearance at the deposition or produce the requested business records.

A California Court of Appeal has stated in a published decision that the provisions of Code of Civil Procedure section 2025 clearly apply to deposition subpoenas. Thus the motion to enforce the deposition subpoena in California must comply with the various requirements found in section 2025.

Law authorizing a motion to enforce a deposition subpoena in California.

Code of Civil Procedure section 2025.480 states in pertinent part that,

“(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.

(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.”

However before filing any motion seeking to enforce a deposition subpoena in California the moving party must make a sufficient showing to the court that they have made a reasonable effort to meet and confer to resolve the issue before filing their motion and the motion must include a meet and confer declaration detailing the efforts to resolve the issue informally.

The moving party may also seek sanctions for their expenses incurred in connection with both the refusal to comply with the deposition subpoena and the preparation and filing of the motion to compel. Those sanctions can include attorney’s fees if the moving party is represented by an attorney.

The law in California is well settled that the scope of permissible discovery is very broad and any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Any doubts regarding relevance are generally resolved in favor of allowing the discovery.

In fact a California Court of Appeal recently ruled in a published case that although the trial court has discretion in deciding whether to grant or deny a discovery motion it is obligated to construe the discovery statutes liberally in favor of disclosure, and that the broad scope of discovery includes the discovery of information from a nonparty.

The United States Supreme Court has stated that a fundamental principle of the common law is that “`”the public … has a right to every man’s evidence.” Trammel v. United States (1980) 445 U.S. 40, 50, 100 S.Ct. 906, 63 L.Ed.2d 186).

Under California law, if good cause has been shown for the production of a writing in a legal proceeding, no person has a right to refuse production of the writing in the absence of a statutory privilege permitting such refusal. “Except as otherwise provided by statute: [¶] . . . [¶] (b) No person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object, or other thing.” Evidence Code section 911 subdivision (b).

Civil litigation attorney in Riverside County, California.

An experienced litigation attorney can evaluate your situation and determine if the circumstances of your case require enforcing a deposition subpoena in California.  Contact attorney Nathan Mubasher for a consultation and evaluation of your case.

Schedule a 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.

Opposing a demurer in California

Opposing a demurer in California is the topic of this blog post.

This blog post will briefly discuss some common grounds for opposing a demurrer in California.  The same issues discussed in this blog post will also apply to opposing a demurrer to a cross-complaint or an answer as well.

Deadline for opposing a demurrer in California.

The opposition to a demurer in California should be filed and served at least nine (9) court days before the hearing and should be served by personal delivery or overnight mail pursuant to Code of Civil Procedure section 1005 unless the court has ordered otherwise.

Grounds for opposing a demurrer in California.

Careful review of the demurrer and any supporting documents is essential so that it can be determined what grounds for opposing the demurrer exist

One very common ground for opposing a demurrer in California is on the grounds that the demurrer relies on extrinsic evidence which cannot be considered in ruling on a demurrer unless the evidence is subject to judicial notice.  This means that no demurrer in California can be based on affidavits, declarations or any other matters that are outside the “four corners” of the pleading. A demurrer can only be used to challenge what lies on the face of the complaint, or what is subject to judicial notice.

Another common ground for opposing a demurrer in California is the fact that the law in California is well settled that only the legal sufficiency of the allegations is tested by the filing of a demurrer.  Other issues such as truth, the ability of plaintiff’s to prove their allegations or any alleged difficulty in making such proof cannot be considered in ruling on a demurrer.  The allegations of plaintiff must be accepted as true no matter how unlikely or improbable for the purposes of ruling on the demurrer.

It is not necessary that the cause of action be the one intended by plaintiff. The real test is whether the complaint states any valid claim entitling plaintiff to relief.  This means that a plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail.   But if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer.

Special demurrers for uncertainty are a disfavored ground for a demurrer and will only be sustained where the complaint is so bad that the defendant cannot determine what issues they must admit or deny, or what causes of action are directed against them.  And the alleged uncertainties must be specified with particularity.  The special demurrer must specify exactly how or why the pleading is uncertain, and where such uncertainty appears in the complaint by referring to the page and line numbers of the complaint.

Even if a demurrer is sustained, leave to amend the complaint is routinely granted. Courts are very liberal in permitting amendments, not only where a complaint is defective in form, but also where substantive defects are apparent:

The California Supreme Court has stated that it is an abuse of discretion for a court to deny leave to amend where there is any reasonable possibility that a plaintiff can state a good cause of action.

An experienced civil litigation attorney can evaluate your situation and determine which grounds exist for opposing a demurrer in California.  Contact attorney Nathan Mubasher for a consultation and evaluation of your case.

Schedule a consultation today with attorney Nathan Mubasher.

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

CONTACT INFORMATION FOR NATHAN MUBASHER:

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

DISCLAIMER:

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

Motion for judgment on the pleadings in California

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

A motion for judgment on the pleadings in California may be filed by either a plaintiff or a defendant.

A motion for judgment on the pleadings is analogous to a general demurrer but one of the advantages of filing a motion for judgment on the pleadings in California is that it can be filed even after the time for filing a demurrer has expired.  Except as provided by California law or statute, the rules governing demurrers apply.  It should be noted however that a motion for judgment on the pleadings may not be made on the grounds of uncertainty or any other ground for a special demurrer.

Statutory motion for judgment on the pleadings in California.

A statutory motion for judgment on the pleadings in California is authorized by the provisions of Code of Civil Procedure § 438 which states in pertinent part that,

“(b) (1) A party may move for judgment on the pleadings.

(2) The court may upon its own motion grant a motion for judgment on the pleadings.

(c) (1) The motion provided for in this section may only be made on one of the following grounds:

(A) If the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.

(B) If the moving party is a defendant, that either of the following conditions exist:

(i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint.

(ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.

(2) The motion provided for in this section may be made as to either of the following:

(A) The entire complaint or cross-complaint or as to any of the causes of action stated therein.

(B) The entire answer or one or more of the affirmative defenses set forth in the answer.”

Advantage of filing a motion for judgment on the pleadings in California.

A major advantage of filing a motion for judgment on the pleadings is that you are not required to meet and confer with the opposing counsel or party before filing unlike a demurrer which has a meet and confer requirement since January 1, 2016 under the provisions of Code of Civil Procedure § 430.41

If you are a plaintiff and the defendant has filed an answer that consists either entirely or mainly of what are known as generic “boilerplate” affirmative defenses that lack any specific details to support the defenses a motion for judgment on the pleadings may be filed.

If you are a defendant in California and you have been served with a complaint that contains causes of action which fail to allege each and every element required to state that particular cause of action, then filing a motion for judgment on the pleadings may be filed, assuming that the time for you to file a demurrer has already expired.

Deadline for filing a statutory motion for judgment on the pleadings in California.

It should be noted that there is a deadline for filing a statutory motion for judgment on the pleadings in California pursuant to California Code of Civil Procedure § 438(e) which states that, “No motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.”

Note that the Judge has discretion to permit a statutory motion for judgment on the pleadings in California to be filed even after the deadline.

Common law motion for judgment on the pleadings in California.

And there is also what is known as a common law motion for judgment on the pleadings as despite the deadline specified in California Code of Civil Procedure § 438(e), and even though that statute was enacted in 1994, several California Courts of Appeal have stated in published decisions that a motion for judgment on the pleadings may be made at any time prior to the trial, or at the trial itself.

Another argument that can be made to support a common law motion for judgment on the pleadings in California is the fact that the law in California is clear that the grounds for a general demurrer are never waived.   See California Code of Civil Procedure § 430.80.

One issue that must be considered is the fact that some judges in California will enforce a strict interpretation of the law and may deny a motion for judgment on the pleadings in California that is not filed within the time limits specified in California Code of Civil Procedure § 438(e).

An experienced civil litigation attorney can evaluate your situation and determine if you have sufficient grounds for filing a motion for judgment on the pleadings in California.   Contact attorney Nathan Mubasher for a consultation and evaluation of your case.

Schedule a 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.