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 to quash service in California for lack of personal jurisdiction

A motion to quash service in California for lack of personal jurisdiction is the topic of this blog post.

The technical legal term for personal jurisdiction is “in personam jurisdiction”.

Personal jurisdiction over a defendant is required whenever a personal judgment against that defendant is filed seeking a judgment for money damages, or an injunction.  That rule covers the vast majority of lawsuits in California or any other state and that is the reason why personal jurisdiction is a major factor in any litigation cases.

Unless a Court in California has personal jurisdiction over a defendant they cannot impose any personal liability against them or affect their personal rights in any way.  The rules and requirements relating to personal jurisdiction are there in order to protect a defendant, and they can be waived by a defendant.

Deadline to file a motion to quash service in California for lack of personal jurisdiction.

It should be noted unless a motion to quash service in California for lack of personal jurisdiction is filed before any other response is filed any jurisdictional defects will be deemed waived on the grounds that the defendant did not object promptly to personal jurisdiction by the proper procedure.

It has been recognized since common law times that state courts may exercise personal jurisdiction over nonresidents where certain “traditional” bases for personal jurisdiction exist. Burnham v. Sup.Ct. (Burnham) (1990) 495 U.S. 604, 609, 110 S.Ct. 2105, 2110.

The three “traditional” bases for personal jurisdiction are:

service on persons physically present in forum state;

domicile within the state; and

consent or appearance in the action.

For due process purposes, service of summons upon a person voluntarily present in the forum state “suffice(s) to confer jurisdiction without regard to whether the defendant was only briefly in the State or whether the cause of action was related to his activities there.” Burnham v. Sup.Ct. (Burnham) (1990) 495 U.S. 604, 612, 110 S.Ct. 2105, 2111; see also Marriage of Fitzgerald & King (1995) 39 Cal.App.4th 1419, 1426.

Although substitute service may be effective in other situations, only personal service will support over any nonresidents that are temporarily present in the State of California.

However personal jurisdiction cannot be based solely on the fact that a defendant used to live in California before. The domicile contact with California must be intact when the action is filed, for due process purposes.

But jurisdiction may be asserted against a former California domiciliary based on some other “contact” with the state: e.g., commission of some tortious act while domiciled here.

Actions speak louder than words in determining where a person is domiciled. Thus, for example, a person can sign all of the declarations that they want and/or file any number of documents stating that they are a Nevada resident for tax reasons or something similar but a court can still find them to be domiciled in California if the person spends most of their time here and has most of their property there.

Personal jurisdiction over a nonresident defendant may be upheld if he or she appears in the action, or otherwise has consented to the court’s exercise of such jurisdiction.

This is another of the “traditional” bases for personal jurisdiction that defines due process. Thus, jurisdiction may be upheld even in the absence of “minimum contacts” between the nonresident and the forum state. A nonresident who appears in an action, either as plaintiff or defendant, thereby submits to the court’s exercise of personal jurisdiction.

A plaintiff “appears” by commencing the action; in other words the act of filing the complaint submits plaintiff to the personal jurisdiction of the court.

However, a defendant submits to the jurisdiction of the court ONLY when it files a general, as opposed to a special, appearance.  This means that any defendant who intends to raise the issue of personal jurisdiction over them needs to file a “special” appearance, NOT a general appearance.

A “special” appearance is one limited to challenging the court’s jurisdiction over defendant. In California, the only procedure for challenging personal jurisdiction is a motion to quash service of summons, under Code of Civil Procedure § 418.10.

A defendant must serve and file the motion to quash within the time permitted to plead, unless the court extends the time for good cause shown. Note that you must schedule a hearing date within 30 calendar days of when your motion is filed. See Code of Civil Procedure § 418.10(b). The service requirements are those on motions generally.

If you have previously demurred, answered or moved for a transfer of the action, there is no point in filing a motion to quash service. The previous pleading or motion constitutes a general appearance, which waives any jurisdictional objection.

The motion to quash itself and any related relief incidental such as an extension of time to plead or setting aside a default, etc,. are protected as a “special appearance” so as not to subject defendant to the court’s jurisdiction.

Code of Civil Procedure § 418.10(d) states that, “No default may be entered against the defendant before expiration of his or her time to plead, and no motion under this section, or under Section 473 or 473.5 when joined with a motion under this section, or application to the court or stipulation of the parties for an extension of the time to plead, shall be deemed a general appearance by the defendant.”

However any pleading or motion by a defendant that contests the merits of the action, or challenges the complaint on other than jurisdictional grounds, constitutes a general appearance.  It is equivalent to personal service of summons on defendant for jurisdiction purposes.  See Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147.

Whether a defendant has made a “general appearance” is a fact-specific issue. The determinative factor is whether it “takes a part in the particular action which in some manner recognizes the authority of the court to proceed.” See Hamilton v. Asbestos Corp., Ltd., supra, 22 Cal.4th at 1147; see also Mansour v. Sup.Ct. (Eidem) (1995) 38 Cal.App.4th 1750, 1756.

A general appearance effectively waives any basis for objecting to the court’s personal jurisdiction over defendant.   This is true even where defendant expressly disclaims an intent to submit to the court’s jurisdiction.  See Neihaus v. Sup.Ct. (Vaillancourt) (1977) 69 Cal.App.3d 340, 345, the answer contained a statement that “defendant does not intend to subject his person to the jurisdiction of this court”; this was held to constitute a general appearance, thus the objections were waived.

In order to meet their burden of proof the plaintiff is entitled to conduct discovery with regard to the issue of jurisdiction before the hearing on the motion to quash in order to establish the nature and extent of the defendant’s “contacts” in California.  The hearing date is often continued to allow for such discovery.

But a continuance may be denied if there is no showing that discovery would likely produce evidence of additional “contacts.”  See Beckman v. Thompson (1992) 4 Cal.App.4th 481, 486-487.

The burden is on the plaintiff to demonstrate by a preponderance of the evidence that all jurisdictional criteria are met.

An experienced civil litigation attorney can evaluate your situation and determine if you have sufficient grounds for filing a motion to quash service in California for lack of personal jurisdiction.  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.

Amending a complaint or other pleading in California

Amending a complaint or other pleading in California is the topic of this blog post.

Common situations involving amending a pleading in California include amending an answer, complaint or cross-complaint.

California statutes that authorize amending a complaint or other pleading in California.

Amending a complaint or other pleading in California is authorized by the provisions of Code of Civil Procedure sections 473(a) and 576 which both state in pertinent part that a court may, in the furtherance of justice allow a party to amend any pleading on any terms as may be proper.

Legal requirements relating to amending a complaint or other pleading in California.

It should be noted that anyone that is contemplating amending a complaint or other pleading in California must comply with the provisions of California Rule of Court 3.1324 or risk having their motion denied.

Rule 3.1324 states that

“(a) Contents of motion

A motion to amend a pleading before trial must:

(1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

(b) Supporting declaration

A separate declaration must accompany the motion and must specify:

(1) The effect of the amendment;

2) Why the amendment is necessary and proper;

(3) When the facts giving rise to the amended allegations were discovered; and

(4) The reasons why the request for amendment was not made earlier.

(c) Form of amendment

The court may deem a motion to file an amendment to a pleading to be a motion to file an amended pleading and require the filing of the entire previous pleading with the approved amendments incorporated into it.

(d) Requirements for amendment to a pleading

An amendment to a pleading must not be made by alterations on the face of a pleading except by permission of the court. All alterations must be initialed by the court or the clerk.

Public policy favoring amending a complaint or other pleading in California.

Numerous published decisions from both the California Supreme Court and Courts of Appeal have stated that permitting amendments in the furtherance of justice is to be liberally permitted at any stage of the proceeding

One published California Court of Appeal decision stated that liberal amendment of pleadings has been the established public policy of California since at least 1901.

The policy favoring leave to amend to amend a complaint or other pleading in California is so strong that amendment must be permitted unless the party opposing the motion can show meaningful prejudice which includes the running of the statute of limitations, a delay of the trial, the loss of critical evidence, or added preparation costs.

Unless a showing of meaningful prejudice is made by the party opposing the motion even delay alone is not necessarily a sufficient reason for denying leave to amend.

An experienced civil litigation attorney can evaluate your situation and determine if you have sufficient grounds for filing a motion for leave to amend a complaint or other pleading 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 change of venue in California

A motion for change of venue in California is the topic of this blog post.

Venue is the court location where a case is heard.  A motion for change of venue in California requests that the Court transfer the venue of the case to the county where the defendant resides.

The law in California is well settled that a defendant has the absolute right to have any trial heard in the county of their residence, unless there is some express statutory justification for an exception such as a personal injury case where the defendant is alleged to have caused a vehicle accident in another county.

Law authorizing a motion for change of venue in California.

Code of Civil Procedure § 396 states in pertinent part:

“If an action or proceeding is commenced in or transferred to a court which has jurisdiction of the subject matter thereof as determined by the complaint or petition, and it thereafter appears from the verified pleadings, or at the trial, or hearing, that the determination of the action or proceeding, or of a cross-complaint, will necessarily involve the determination of questions not within jurisdiction of the court, in which the action or proceeding is pending, the court, whenever such lack of jurisdiction appears, must suspend all further proceedings therein and transfer the action or proceeding and certify the pleadings, and all papers and proceedings therein to a court having jurisdiction thereof which may be agreed upon by the parties, or if they do not agree, to a court having such jurisdiction which is designated by law as a proper court for the trial or determination thereof.. Upon the making of an order for transfer, proceedings shall be had as provided in Section 399 of this code, the costs and fees thereof, and of filing the case in the court to which transferred, to be paid by the party filing the pleading in which the question outside the jurisdiction of the court appears unless the court ordering the transfer shall otherwise direct”.

If you are a defendant and want to change the venue of the case to the county where you currently reside you have to file a motion for change of venue at or before filing an answer or other response.  If you do not file a motion for change of venue before you file an answer or other response the court may consider that you have waived any objection to the venue of the case unless you have other grounds for a change of venue such as convenience of witnesses or the ends of justice.

The law in California is well settled that any complaint filed in a county other than the county where the defendant lives will be strictly construed against a plaintiff who files in any other venue.

The California Supreme Court has stated in a published decision that the right of a plaintiff to a trial in any county other than the county of residence of a defendant is an exception to the general rule and requires express statutory justification.

Code of Civil Procedure § 395(a) states in pertinent part that, “Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the county in which the defendants or some of them reside at the commencement of the action is the proper county for the trial of the action.”

If several causes of action are alleged in a complaint, a motion for change of venue must be granted on all of the causes of action, if a defendant is entitled to change on any one cause of action.  A fraud action must be tried in the county where the defendant lives as fraud is what is known as a transitory cause of action.

Attorney’s fees and costs available on a motion for change of venue in California.

If a plaintiff files in the wrong county, the defendant has the right to request that the Court order that the plaintiff pay all of their expenses, including court costs and attorney fees before any transfer is made.  If the plaintiff is represented by an attorney, the Court can order that the attorney for the plaintiff be the one to pay any expenses and attorney fees before any such transfer is made.  If the fees are not paid within 30 days of service of notice of the order transferring venue, the defendant may make a motion for dismissal of the case without prejudice.

Code of Civil Procedure § 399 states in pertinent part: “When the transfer is sought solely, or is ordered, because the action or proceeding was commenced in a court other than that designated as proper by this title, such costs and fees (including any expenses and attorney’s fees awarded defendant pursuant to Section 396b) shall be paid by the plaintiff before such transfer is made”.

If would like to discuss whether filing a motion for change of venue in your case is appropriate you can contact Nathan Mubasher for an evaluation and consultation.

Schedule a consultation today.

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 enforce a settlement agreement in California

A motion to enforce a settlement agreement in California is the topic of this blog post.

A motion to enforce a settlement agreement in California can be filed by any party that wants to enforce a settlement agreement entered into in any pending litigation in California.

Law authorizing a motion to enforce a settlement agreement in California.

A motion to enforce a settlement agreement in California is authorized by the provisions of Code of Civil Procedure section 664.6 which states that, “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”

Advantages and scope of motion to enforce a settlement agreement in California.

The importance of Code of Civil Procedure section 664.6 is critical for many parties involved in litigation in California.  This is due to the fact that if a settlement is reached in any pending litigation in California in which the parties have signed a written settlement agreement, or have stipulated to a settlement in open court, if one party to the agreement fails to comply with the terms of the settlement agreement, the other party can file a motion to request that the court enter judgment pursuant to the terms of the settlement agreement under Code of Civil Procedure section 664.6.

The scope of Code of Civil Procedure section 664.6 is very broad in that it applies where any settlement is entered into in any pending litigation in California.

Requirements for motion to enforce a settlement agreement in California.

However there are certain requirements that must be met in order to enforce a settlement agreement in California.

The first requirement is that Code of Civil Procedure section 664.6 specifies that any written agreement entered into outside court must be signed by all parties.  This has been interpreted by the California Appellate Courts to mean that the settlement must be signed by the party seeking to enforce the settlement and the party or parties against whom it is to be enforced.

A published decision from a California Court of Appeal has stated that as long as the terms of any settlement are sufficiently definite to enable a court to give it an exact meaning, the court is authorized to enter judgment on the settlement.   That same California Court of Appeal stated in the same case that any settlement agreement that incorporates other documents can be enforced pursuant to Code of Civil Procedure section 664.6 provided that there was a meeting of the minds regarding the terms of the incorporated documents.

Another published decision from a California Court of Appeal stated that any disputes regarding the terms of the settlement itself may be adjudicated on a Code of Civil Procedure section 664.6 motion on the basis of declarations or evidence.

Other published decisions from the California Courts of Appeal have stated that the trial judge may receive oral testimony in ruling on a motion filed under Code of Civil Procedure section 664.6, the trial judge may receive oral testimony, documentary testimony or declarations, and that Code of Civil Procedure section 664.6 also authorizes the judge that is hearing the motion to determine any factual issues that are disputed that have arisen regarding the settlement agreement.

A very important advantage of a motion to enforce a settlement agreement in California is that in the event that the terms of the settlement agreement provide that any party seeking to enforce the terms of the settlement agreement who prevails is entitled to attorney fees and costs, the prevailing party on any motion to enforce the settlement agreement is entitled to recover their attorney fees and costs incurred in bringing or defending the motion.

The calculable amount of time spent includes all hours incurred working compensable services, including, but not limited to, investigation, evaluation of claims, drafting and revising pleadings (including the motion for attorney’s fees), research and briefing of factual and legal issues, and conferring with clients and/or other counsel.

One California Court of Appeal ruled in a published decision that the submission of the information contained in the attorney’s declaration constituted prima facie evidence that the costs, expenses, fees and services listed therein were necessarily incurred.

The California Supreme Court has stated in at least two published cases that the hourly rate at which Plaintiff’s attorney is entitled to be compensated is the reasonable market value of their service in the community.

If you entered into a settlement agreement in pending litigation in California and the other party is not complying with the terms of the settlement you should contact an experienced civil litigation attorney as soon as possible.

Schedule a consultation today.

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.