Why your attorney in California needs to know the local rules

Why your attorney in California needs to know the local rules is the topic of this blog post.

When you hire an attorney, you should ask your attorney if he or she has a thorough knowledge of so-called local rules of the court in which your matter appears.  These are different from California Rules of Court which affect all cases throughout the state, and are adopted by the Judicial Council of California.  Local court rules on the other hand affect cases filed in their respective county courts and can be just as important if not more so, since many local rules are extensions of the California Rules of Court.

Local rules differ from court to court, sometimes even within the same county.  For example, some courts require that for every document that is filed at the general civil window, a courtesy copy must be delivered to the court clerk in the department in which the judge resides.  Local rules can be tricky in that even different departments in the same courthouse can have their own separate rules.  It is not uncommon to see a local rule that for example states that courtesy copies should go to specific departments, with other departments not accepting courtesy copies.

Knowing that your attorney is competent and thorough enough to be familiar with the local rules pays dividends.  Many times, an attorney has inadvertently created friction with a judge that may be strict about enforcing certain local rules.  Some local rules are general but some are very procedural.  One general local rule may prohibit the reading of a newspaper in court.  If your attorney is caught reading a newspaper while he is waiting to be heard on your matter, how do you think your case would be impacted if the judge sharply rebukes the attorney in front of the opposing counsel and the people sitting behind the bar?  (Incidentally, now you know why it is called “passing the bar” when an attorney passes their respective state bar examination!)  It is the conscious adherence to local rules that will cause a judge to respect your attorney throughout your case.

When I first started practicing, I once observed a lawyer who forgot his suit jacket as I was waiting to have the matter called to make my appearance.  While the courtroom waited for the judge to take the bench, I wondered how the judge would handle an attorney who was violating the local rules since I knew this court was strict about courtroom decorum and appearance.  A suit jacket was specifically required for men and I had seen a GQ lawyer yelled at for wearing pink socks on another day.  After I made my appearance, I hung around until the other attorney’s matter was called.  He grimly approached counsel’s table and said “Your honor, I forgot my suit jacket in violation of local rules.  I would only ask that my violation of your local rule does not prejudice my client”  The elderly judge peered over his glasses and stated “Son, your shirt and tie combination is confusing my old eyes, so don’t worry, I’ll be getting you out of here as soon as possible.”  As the court snickered, what was a technical violation that could have impacted the attorney’s case became a moment of levity.  I am sure the directness of the attorney in confronting the issue head-on helped, but that may not have helped if he had violated a more significant local rule.  Through this example and more significant ones, I make sure now that I always study the local rules before making an appearance into a court.  I have appeared in almost every court in Los Angeles, San Bernardino, and Riverside County, even in ones considered “remote” by most practitioners.   Each single court is different in significant respects based on the customs of the locality.

While the local rule pertaining to dress code is a very simple example, knowledge of local rules is extremely helpful in showing respect to not only the judge, but also to other court personnel such as the courtroom clerk.  There is a difference between having researched the local rules and asking questions about them, versus not looking at the local rules and asking courtroom staff what the local rules are.  When you show you have at least attempted to understand the local rules, the court is much more helpful toward advancing your agenda.  Also, since court clerks are many times the right hand personnel of the judge, failing to abide by simple rules that make the court clerk’s job harder, will ultimately be found out by the judge.

Care must be taken.  Some rules are more technical or procedural; for example, California Rule of Court 3.1308 gives local courts two (2) options:  If a trial court offers a tentative ruling procedure (alerting the public what it’s likely decision will be before the day of the hearing), it must follow one of the two options available:

(1)Notice of intent to appear required

… If the court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear…

(2)No notice of intent to appear required

… The tentative ruling, or such other ruling as the court may render, will not become the final ruling of the court until the hearing.

So if a court adopts tentative rulings (again, rulings made before the hearing to show which direction a judge is inclined to rule) it has to follow one of the above – either make the party or counsel fight for their right to argue, if they so desire, by asking for the opportunity to argue the day before the hearing OR the court will wait until hearing to decide a final ruling regardless of whether anyone gives notice.  The first method occurs in courts that favor expediency since it eliminates unnecessary hearings if both counsel are satisfied with a ruling the day before the hearing and neither call up to confirm they want to argue the next day.

In Riverside County, since the first option is what has been selected by the Riverside courts, it could be fatal for an attorney to assume that the Riverside court adopted the second option under the California Rules of Court and that no one had to give notice until the hearing itself that one would like to argue against the tentative ruling.

Riverside County’s Rule 3316 (Tentative Rulings) states:

… The tentative ruling shall become the ruling of the Court unless, by 4:30 p.m. on the court day before the scheduled hearing, a party gives notice of intent to appear to all parties and the court. The notice of intent to appear must be given either in person or by telephone. Where notice of intent to appear has been properly given, or upon direction of the Court, oral argument will be permitted.

So here, if you wish to argue against the tentative ruling, some rules such as this local one go further and state you have to call the department clerk and to let her know you are contesting the ruling the next day.  At least they give you until 4:30 PM to notify the court and opposing counsel unlike the California Rules of Court which specify you must notify the court and opposing counsel by 4:00 PM.

I have seen counsel be prohibited from arguing at the hearing because they did not research the local rules and did not ask for permission to argue the following day since they assumed Riverside’s local rules allowed more leeway.  Again, this could be fatal to a case!  Imagine receiving an adverse ruling, not calling the day before the hearing, then going to court the next day to argue only to be stopped by the judge for failure to follow a local rule.

So far, I hope I am showing you that ignorance of local rules is like deliberately walking through a minefield.  Would you want an attorney with a map of where the mines are, or an attorney who marches headstrong into the minefield, knowing it is a minefield?  There is a thin line between bold and blind.  As the examples above show, stepping on some mines may do nothing, but stepping on others can be fatal to a case if your attorney’s ability to speak is prohibited at hearing because he or she did not notify court staff that they would like to contest a tentative ruling in a timely manner.

It should be clear at this point that knowledge of local rules shows opposing counsel that your attorney is a competent attorney that knows the ropes.  These moments can come from the most random circumstances.  For example, if your attorney knows that local rules require that the court your matter is in requires a specific vendor for filing of paperwork, he won’t use an outside vendor wasting your time and money and looking bad before the court and opposing counsel.  Or if a local rule requires that before filing a response to a complaint, that an earnest settlement discussion is required to be held between attorneys if your attorney will file anything other than an answer, this can be pointed out by your counsel as he approaches the other side.  In one instance, other counsel dismissed a case against my client after I followed the local rule above, pointed it out, then discussed how our case fit into the ones envisioned by this rule for early disposition, instead of wasting our clients’ money and the court’s time.

Finally, knowledge of the local rules can often eliminate the tendency of some judges to give the benefit of the doubt to local attorneys that frequently appear in their courtroom.  If a local attorney missteps on a small deadline for example they may be granted leeway under judicial discretion.  But if an attorney frequents a courtroom, you can be sure they understand the nuanced details of timelines for submitting specific types of documents.  If you have the same local rules knowledge, if the opposing side messes up, you can call it out especially if it prejudices you.  Most judges will look at the other side and say “sorry” and penalize them on the spot.  This helps promote an equal playing field even against biases of familiarity.

Other articles will look at the importance of your attorney’s personality in relation to case success, the importance of retaining an attorney a reasonable amount of time before the hearing instead of waiting until the last minute, and finally, the hazards of using a low priced “budget” attorney that quotes a low price, then ends up costing you more.

Talk to your lawyer about the local rules that will apply in your case.

Schedule a consultation today.

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

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

Advertisement

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

 

 

 

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