Opposition to petition to compel arbitration in California

An opposition to a petition to compel arbitration in California is the topic of this blog post. This blog post will briefly discuss some common grounds for opposing a petition to compel arbitration. Any opposition to the petition 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.

Parties served with a petition to compel arbitration should carefully review the petition and any supporting documents to determine what grounds for opposition exist.

One very powerful ground for opposition is that the alleged agreement to arbitrate should not be enforced as the law in California states that an agreement to arbitrate can be invalidated, “upon such grounds as exist for the revocation of any contract.” See Code of Civil Procedure § 1281.

Other common grounds for opposition include but are not necessarily limited to:

The arbitration agreement should not be enforced due to fraud or duress.

The arbitration agreement is unconscionable as it is one-sided and/or is an adhesion contract.

The moving party unreasonably delayed in seeking arbitration.

The moving party acted in bad faith.

The moving party took advantage of the judicial discovery procedures not available in arbitration.

California Code of Civil Procedure §1281.2 states, in relevant part:

”On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that:

(a) The right to compel arbitration has been waived by the petitioner; . . . “(Emphasis added.)

Attorneys or parties who wish to view a portion of a 20 page sample opposition to compel arbitration containing brief instructions, a table of contents and table of authorities as well as a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view other sample legal document packages for sale by visiting: http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Opposition to demurrer in California

An opposition to a demurrer to a complaint in California is the topic of this blog post. This blog post will briefly discuss some common grounds for opposing a demurrer. The same principles discussed in this blog post apply to opposing a demurrer to a cross-complaint as well.

Any opposition to the demurrer should be 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.

One common ground for opposition is 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 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.

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 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..

Attorneys or parties in California who wish to view a portion of a sample 11 page opposition to a demurrer containing a memorandum of points and authorities with citations to case law and statutory authority and proof of service sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view other sample legal document packages for sale by visiting: http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Relief from waiver of jury trial in California pursuant to Code of Civil Procedure section 631(g)

Relief from waiver of a jury trial  In California pursuant to Code of Civil Procedure section 631(g) is the topic of this blog post.  On occasion attorneys or parties will inadvertently fail to file a timely request for a jury trial or otherwise inadvertently waive the right to trial by jury.

The right to a jury trial in all cases in California is authorized by Article I, section 16 of the California Constitution which states in pertinent part that, “Trial by jury is an inviolate right and shall be secured to all.”

Code of Civil Procedure § 631(g) states that, “The court may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury.”

Several decisions of the California Supreme Court and the Courts of Appeal have stated that the right to a trial by jury is a basic and fundamental part of the California legal system.

Even if the right to a trial by jury has been waived the trial Court still has the discretion to permit a trial by jury. The California Courts of Appeal have stated in several decisions that a trial Court should grant a motion for relief from a waiver of a jury trial except in cases where granting relief would cause serious hardship to the objecting party. Prejudice must result from the granting of the relief from waiver, not prejudice from a jury trial. Issues such as rescheduling, lack of funds, and the timeliness of the request may be considered.

The California Supreme Court has stated that when there is doubt concerning the propriety of granting relief from waiver, such doubt should be resolved in favor of the party seeking a trial by jury. Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 956.

If there is no prejudice shown to the objecting party or the Court from any inadvertent waiver it is an abuse of discretion to deny relief from waiver as stated in several California Court of Appeal decisions.

Attorneys or parties in California who would like to view a portion of a 12 page sample ex-parte application for relief from waiver of jury trial containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration declaration regarding ex-parte notice and proposed order sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view other sample legal document packages for sale by visiting: http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Opposition to a motion to vacate judgment under Rule 60(b)(3) in United States District Court

An opposition to a motion to vacate judgment under Rule 60(b)(3) on the grounds of fraud, misrepresentation or other misconduct in United States District Court is the topic of this blog post. The opposition to the motion should be served and filed at least seven (7) calendar days before the hearing unless a Local Rule or order of the Court states otherwise pursuant to Federal Rule of Civil Procedure 6(c)(2).

Parties served with a motion to vacate under Rule 60(b)(3) (Rule 60) should carefully review the motion and all supporting documents to determine what grounds exist for an opposition.

Common grounds for opposition to a motion to vacate under Rule 60(b)(3) are:

The motion is untimely in that it is not brought within a reasonable time as required by Rule 60 which states in pertinent part that,

“ (c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

The moving party unreasonably delayed in filing the motion.

The moving party has not met their burden of showing that the fraud, misrepresentation or misconduct alleged prevented them from fully and fairly presenting their case.

No meritorious claims or defenses are presented.

Several decisions of the Circuit Courts of Appeal including but not limited to, the Ninth Circuit Court of Appeals have stated that the moving party must meet their burden of showing that the opposing party engaged in fraud, misrepresentation or other misconduct that prevented the moving party from fully and fairly presenting his or her case or defense.

The Ninth Circuit Court of Appeals has also stated that a motion under Rule 60 cannot be used to vacate a judgment which is alleged to be factually incorrect.

Other Circuit Courts of Appeal have stated the moving party must show that its claims or defenses are meritorious in order to prevail on the motion.

Several decisions of the Circuit Courts of Appeal including the Ninth Circuit Court of Appeals have stated that the moving party must establish fraud by clear and convincing evidence and a recent decision by a Circuit Court of Appeal stated that the moving party must establish that any alleged misconduct prevented a full and fair presentation of the case.

Attorneys or parties who would like to view a portion of a 12 page sample opposition to a motion to vacate judgment under Rule 60(b)(3) in United States District Court containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view other sample legal document packages for sale by visiting: http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Opposition to motion to vacate judgment under Rule 60(b)(2) in United States District Court

An opposition to a motion to vacate judgment under Rule 60(b)(2) in United States District Court on the grounds of newly discovered evidence is the topic of this blog post. The opposition to the motion should be served and filed at least seven (7) calendar days before the hearing unless a Local Rule or order of the Court states otherwise pursuant to Federal Rule of Civil Procedure 6(c)(2).

Any parties served with a motion to vacate under Rule 60(b)(2) (“Rule 60”) should review the motion and all supporting documents very closely to determine what grounds exist for an opposition.

Common grounds for opposition to a motion to vacate under Rule 60(b)(2) are:

The motion is untimely in that it is brought more than one year after the entry of judgment or it is not brought within a reasonable time as required by Rule 60 which part that,

“ (c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

The moving party unreasonably delayed in filing the motion.

The newly discovered evidence was known or could have been discovered by the moving party before the trial.

The newly discovered evidence is merely cumulative, impeaching or not material.

The newly discovered evidence would not likely produce a different result if the judgment were set aside.

Several decisions of the Circuit Courts of Appeal including the Ninth Circuit have stated that the moving party must show that the newly discovered evidence was discovered after the trial, that they exercised diligence to discover the evidence, the evidence is not just cumulative or impeaching evidence, the evidence is material and that the evidence would most likely produce a different result if the judgment were set aside.

Recent decisions of various Circuit Courts of Appeal have stated that impeachment evidence that is newly discovered does not support a motion to vacate under Rule 60 in most cases.

And several Circuit Courts of Appeal have also stated that a Rule 60(b)(2) motion for relief from judgment is subject to the same standard as a motion under Rule 59 for a new trial on the grounds of newly discovered evidence

Attorneys or parties who would like to view a portion of an 11 page sample opposition to motion to vacate judgment under Rule 60(b)(2) containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view other sample legal document packages for sale by visiting: http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

 

 

 

Opposition to motion to vacate judgment under Rule 60(b)(1) in United States District Court

An opposition to a motion to vacate judgment under Rule 60(b)(1) in United States District Court is the topic of this blog post. Any opposition to the motion should be served and filed at least seven (7) calendar days before the hearing unless a Local Rule or order of the Court states otherwise pursuant to Federal Rule of Civil Procedure 6(c)(2).

Parties served with a motion to vacate under Rule 60(b)(1) (“Rule 60”) should review the motion and all supporting documents closely to determine if grounds exist for an opposition. Common grounds for opposition are:

The motion is untimely in that it is brought later than one year after the entry of judgment or it is not brought within a reasonable time as required by Rule 60 which part that,

“ (c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

The moving party unreasonably delayed in filing the motion.

Culpable conduct by the moving party resulted in the judgment.

No meritorious defenses to the judgment or lawsuit are presented.

The opposing party would be prejudiced if the judgment were set aside.

Numerous decisions of the Circuit Courts of Appeal including but not limited to, the Ninth Circuit Court of Appeals have stated that the moving party must show good cause for the default or judgment, diligence in seeking relief and a meritorious defense otherwise the Court has the discretion to deny the motion.

In a recent decision the Ninth Circuit Court of Appeal stated that Rule 60 does not provide relief for cases of ignorance, carelessness or inexcusable neglect. In another case the Ninth Circuit stated that even attorney negligence that would be considered malpractice does not usually warrant the granting of relief under Rule 60(b)(1), only conduct that is considered attorney misconduct.

Another Circuit Court of Appeal also stated that the ignorance or carelessness of an attorney does not warrant relief under Rule 60 and neither do deliberate litigation strategy and choices regarding evidence.

Attorneys or parties who would like to view a portion of a 10 page sample opposition to motion to vacate judgment under Rule 60(b)(1) containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view other sample legal document packages for sale by visiting: http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Settlement offer in United States District Court under Federal Rule of Evidence 408

A settlement offer in United States District Court under Federal Rule of Evidence 408 is the topic of this blog post. Rule 408 of the Federal Rules of Evidence generally forbids evidence of any settlement offers or any conducts or statements made during settlement negotiations.

Rule 408 was first introduced in 1974. It replaced the original rules of evidence which effectively prevented any meaningful settlement negotiations as under the common law any statements made during such settlement negotiations were admissible and therefore fair game for use at trial or in summary judgment motions. Not surprisingly this threat had a very chilling effect that prevented most if not all litigants from engaging in any discussions regarding a possible settlement. Rule 408 changed the former common law rule as it forbids the admission into evidence of statements made during settlement negotiations “when offered to prove liability for, invalidity of or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction.”

Rule 408 was adopted to promote settlement and facilitate the resolution of disputes without the expense and uncertainty of protracted litigation. Many State courts around the nation have adopted their own version of Rule 408, either through formal rules or through case law. For example the State of California has adopted Evidence Code sections 1152 and 1154 which serve a similar purpose.

Rule 408 states that,

“(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.”

Rule 408 does have some exceptions. For example any previous settlement negotiations between a plaintiff and another party could be introduced by a defendant to establish for statute of limitations purposes the date that plaintiff understood the cause of his or her injuries.

Attorneys or parties who would like to view a sample settlement offer letter under Federal Rule of Evidence 408 created by the author and available for free download can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view other sample legal document packages for sale by visiting: http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.