Responses to requests for admission in United States District Court

Responses to requests for admission in United States District Court are the topic of this blog post. Requests for admission are governed by Rule 36 of the Federal Rules of Civil Procedure in United States District Court and Rule 7036 of the Federal Rules of Bankruptcy Procedure.

The responses to the requests for admission must be served on the propounding party and all other parties to the action within 30 days after service unless otherwise stipulated or ordered by the court.   This time period is extended to 33 days if the requests for admission were served by mail.

The importance of serving timely responses cannot be stressed enough as Rule 36(a)(3) states that, “A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court.”

The responses must also comply with Rule 36(a)(4) which states that, “If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.”

Rule 36(a)(5) states that, “The grounds for objecting to a request must be stated. A party must not object solely on the ground that the request presents a genuine issue for trial.”

The responding party should also keep in mind that the Federal courts in particular are notoriously intolerant of generic or “boilerplate” objections that are interposed without any supporting facts. Examples include “vague and ambiguous” where no details are provided as to why the request for admission is vague and ambiguous. The use of boilerplate objections with no supporting facts may result in the imposition of monetary sanctions as well as waiver of the objections.

The responses must be signed under oath and the attorney must sign any response that contains any objections.

Attorneys or parties who would like to view a portion of a sample 9 page responses to requests for admission in United States District Court under Rule 36 containing brief instructions for responding, a generic verification under oath with notary acknowledgment for use in most states, a specific verification for California only, 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 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.

Motion to amend judgment to add alter ego as judgment debtor in United States District Court

A motion to amend a judgment to add an alter ego as a judgment debtor in United States District Court is the topic of this blog post. Rule 69(a) of the Federal Rules of Civil Procedure authorizes this motion if the requirements are met.

Rule 69(a) of the Federal Rules of Civil Procedure states in pertinent part that, “(a) In General.

(1) Money Judgment; Applicable Procedure. A money judgment is enforced by a writ of execution, unless the court directs otherwise. The procedure on execution—and in proceedings supplementary to and in aid of judgment or execution—must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies.”

Thus a judgment debtor may be added to a judgment under the alter ego liability theory but only if state law allows for the procedure.

The Ninth Circuit Court of Appeals has stated that the federal courts may permit judgment creditors to amend the judgment to add as a judgment debtor a nonparty alter ego if the forum state’s law allows such amendment.

The laws of some states do in fact allow for such an amendment. In the State of California for example, this procedure is authorized under Code of Civil Procedure section 187. The alter ego liability theory is the most common reason to request amendment of a judgment although successor corporation liability can also be used in appropriate situations.

The alter ego liability theory essentially argues that an identity exists between the new party and the original party, whose participation in the trial leading to the judgment represented the newly added party.

Amending a judgment to add a judgment debtor is a powerful tool if used in the appropriate types of situations.

An excellent example of such a situation would be a case where a professional corporation is owned by one person who then proceeds to drain the assets of the corporation by alleging they are “loan repayments” to the individual and sole shareholder before dissolving the corporation. Then under an almost identical name they continue to practice their profession at the same location as the dissolved professional corporation.   When examined under oath at a judgment debtor examination they fail to produce any corporate minutes or resolutions regarding the alleged loans.

Another example of a good situation might be that of a successor corporation who continues the same exact business as the predecessor except for the name.

Code of Civil Procedure section 187 states that, “When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.”

Numerous decisions of the California Courts of Appeal have stated that Code of Civil Procedure section 187 allows a trial court to amend a judgment to add judgment debtors.   The rationale used is that amending a judgment to add an alter ego as a judgment debtor does not result in the addition of a new defendant but merely inserts the correct name of the real defendant.

And a recent decision from a California Court of Appeal states that great liberality is encouraged in the allowance of amendments brought pursuant to Code of Civil Procedure section 187. That same California Court of Appeal also stated there is no requirement for an evidentiary hearing, a noticed motion is all that is required.

Attorneys or parties who would like to view a portion of a sample 13 page motion to amend a judgment in United States District Court containing 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 245 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 Subscribe to FREE weekly legal newsletter for more information.

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

You can view 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.

 

Responses to requests for production of documents under Rule 34

Responses to requests for production of documents under Rule 34 are the topic of this blog post. Requests for production of documents in United States District Court are governed by Rule 34 of the Federal Rules of Civil Procedure (Rule 34) and in United States Bankruptcy Court by Federal Rule of Bankruptcy Procedure 7034.

The responses to the requests for production of documents must be served on the propounding party and all other parties to the action within 30 days after service unless otherwise stipulated or ordered by the court. This time period is extended to 33 days if the requests were served by mail.

The responses must comply with the applicable provisions of Rule 34. Each request must be responded to separately and under oath and the attorney must sign any response that contains any objections.

The responding party should understand that the Federal courts in particular are notoriously intolerant of generic or “boilerplate” objections that are interposed without any supporting facts. Examples include “overbroad and oppressive” where no details are provided as to why the request is overbroad and oppressive. The use of boilerplate objections with no supporting facts may result in the imposition of significant monetary sanctions as well as waiver of the objections.

Responses to requests for producing electronically stored information should comply with the following provisions.

Rule 34(B) states that, “For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.”

Rule 34(C) states that, “An objection to part of a request must specify the part and permit inspection of the rest.”

Rule 34(D) states that, “The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form—or if no form was specified in the request—the party must state the form or forms it intends to use.”

Rule 34(E) states that, “Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

(iii) A party need not produce the same electronically stored information in more than one form.”

Attorneys or parties who would like to view a portion of a sample 13 page responses to requests for production of documents in United States District Court under Rule 34 containing brief instructions for responding, a generic verification under oath with notary acknowledgment for use in most states, a specific verification for California only, 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 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.

Responses to interrogatories under Rule 33 in United States District Court

Responses to interrogatories under Rule 33 in United States District Court are the topic of this blog post. Written interrogatories are governed by Rule 33 of the Federal Rules of Civil Procedure.  Interrogatories in adversary proceedings are also authorized by Federal Rule of Bankruptcy Procedure 7033.

The responses to the interrogatories must be served on the propounding party and all other parties to the action within 30 days after service unless otherwise stipulated or ordered by the court. This time period is extended to 33 days if the interrogatories were served by mail.

Rule 33(b)(3) states that, “ Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.”

And any grounds for objecting to an interrogatory must be stated with specificity as any not grounds for objection that are not stated in a timely fashion will be waived unless otherwise ordered by the court on a showing of good cause. Rule 33(b)(4).

It should be stressed that the Federal courts in particular are notoriously intolerant of generic or “boilerplate” objections that are interposed without any supporting facts. Examples include “vague and ambiguous” where no details are provided as to why the interrogatory is vague and ambiguous. The use of boilerplate objections with no supporting facts may result in the imposition of monetary sanctions as well as waiver of the objections.

The responses must be signed under oath and the attorney must sign any response that contains any objections.

Attorneys or parties who would like to view a portion of a sample 10 page responses to interrogatories in United States District Court under Rule 33 containing brief instructions for responding, a generic verification under oath with notary acknowledgment for use in most states, a specific verification for California only, 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 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.

Service of summons and complaint by publication in California

Service of a summons and complaint by publication in California is the topic of this blog post. The statutory authorization for service by publication in California is found in Code of Civil Procedure section 415.50 which authorizes service by publication only if certain strict requirements are met. A summons and petition in a dissolution (divorce), legal separation or nullity proceeding in California can also be served by publication.

Service by publication should only be used as a last resort in cases where a defendant or respondent truly cannot be served in any other authorized manner. One of the biggest drawbacks to service by publication is the cost which in the great majority of cases will equal or exceed $500.00 or more! Anyone considering requesting service by publication should consider first retaining an experienced “skip tracer” to locate the defendant or respondent as the fee will almost surely be much less than service by publication.

Another drawback is that the defendant or respondent may file a motion to vacate any judgment even years after the judgment is entered and may stand a good chance of having their motion granted if they can show that the plaintiff or petitioner failed to exercise reasonable diligence in attempting to locate them, committed perjury in obtaining the publication order or submitted a defective affidavit or declaration.

The first requirement that must be met is that the plaintiff or petitioner must submit an affidavit or declaration under penalty of perjury showing that the defendant or respondent cannot, with reasonable diligence, be served in another authorized manner, that a cause of action exists against such person or that person is a necessary or proper party to the action. See Code of Civil Procedure § 415.50(a)(1).

It should be noted that even a verified complaint or petition for dissolution or other family law proceeding is not a substitute for the required affidavit or declaration establishing that a cause of action exists against the defendant or respondent.

Alternatively the plaintiff can submit an affidavit or declaration stating that the party to be served has or claims an interest in real or personal property in California that is subject to the court’s jurisdiction, or the relief demanded in the action consists wholly or in part in excluding such party from any interest in such property. See Code of Civil Procedure § 415.50(a)(2).

Note that service by publication is the least likely method to give a defendant or respondent actual notice of the proceeding (it essentially imparts only what is known as “constructive” notice). Thus the “reasonable diligence” required is much more burdensome than that which would allow for substitute service under Code of Civil Procedure § 415.20.

Essentially section 415.50 authorizes only a last resort form of service where the whereabouts of the defendant or respondent are unknown and he or she has no known fixed location where service in another authorized manner can be performed.

An order permitting service by publication may not rest simply on the alleged “actual ignorance” of the whereabouts of the defendant or respondent. Rather, courts “necessarily” must require a showing of exhaustive attempts to locate respondent. Olvera v. Olvera (1991) 232 Cal.App.3d 32, 41-42; see also Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392-1393 (distinguishing less onerous “reasonable diligence” for substitute service).

Even the fact that a defendant or respondent cannot be physically located does not mean there is no available alternative method of service. For example, where a defendant or respondent has a known post office box, “reasonable diligence” to effect service other than by publication requires attempted Code of Civil Procedure § 415.30 service by mail at the P.O. box; otherwise, an application for published summons is “defective as a matter of law.” Transamerica Title Ins. Co. v. Hendrix (1995) 34 Cal.App.4th 740, 746–though D was unlocatable, P knew D’s post office address and that his mail was being picked up there.

And the supporting declaration(s) attesting to the efforts made to locate the defendant or respondent and to effect alternative service must be executed by persons with personal knowledge of the facts such as the process server and/or attorney who conducted the search and submitted to the court in application for an order authorizing service by publication. General allegations and conclusions that the defendant or respondent cannot be found are insufficient. Olvera v. Olvera, supra, 232 Cal.App.3d at 42-§ 415.50 affidavit must establish requisite reasonable diligence by “probative facts” based on personal knowledge; see also Transamerica Title Ins. Co. v. Hendrix, supra, 34 Cal.App.4th at 742-743–declaration stating “Defendant’s address unknown” defective “as a matter of law”.

Note that submitting defective reasonable diligence declarations can have serious consequences even if the Court orders service by publication.

Unless an affidavit or declaration is submitted demonstrating on personal knowledge that a plaintiff or petitioner exercised the requisite reasonable diligence to locate respondent, a judgment based on published service is void and subject to direct or collateral attack.

The court order authorizing service by publication must direct summons to be published in a named California newspaper most likely to give defendant or respondent actual notice and, if defendant or respondent resides out of state, may also order publication in a named newspaper outside California that is most likely to give actual notice. The court’s order must further direct that a copy of the summons, complaint or petition and order for publication “be forthwith mailed” to defendant or respondent if his or her address is ascertained before expiration of the time prescribed for publication. Code of Civil Procedure § 415.50(b); see Olvera v. Olvera, supra, 232 Cal.App.3d at 42-43 –selection of Riverside newspaper for publication failed “most likely to give actual notice” standard where Ps admitted D no longer resided in Riverside and received mail elsewhere.

Publication must occur at least once a week for four successive weeks (unless the court, in its discretion, orders a longer period). Generally, five days should elapse between the successive publication dates. Code of Civil Procedure § 415.50(b); see Government Code § 6064.

An order for publication does not preclude service in another authorized manner. If alternative service is made during the publication period, published summons is superseded. Code of Civil Procedure § 415.50(d).

Service by publication is deemed complete, and the 30-day response period commences to run, on the 28th day following the first day of publication (inclusive of the first day). Code of Civil Procedure § 415.50(c); see Government Code § 6064.

However, the response period may begin sooner if another authorized manner of service is performed in the interim.

Attorneys or parties in California who wish to view more than 250 sample legal documents for California and Federal litigation created by and sold by the author of this blog post can use the following link: http://www.scribd.com/LegalDocsPro/documents

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 Subscribe to FREE weekly legal newsletter for more information.

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

You can view 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 enforce settlement agreement in California

An opposition to a motion to enforce settlement agreement in California under Code of Civil Procedure section 664.6 is the topic of this blog post. The opposition 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 motion to enforce a settlement agreement should carefully review the motion and all supporting documents to determine what grounds for opposition exist.

Numerous possible grounds exist for opposing a motion to enforce a settlement agreement but the most likely grounds would be that (1) the settlement agreement is not valid as the parties did not agree to all the material terms; (2) the settlement agreement was not signed by all the parties nor was it made orally before the court, thus the settlement agreement does not comply with Code of Civil Procedure section 664.6, and 3) the dismissal with or without prejudice of the lawsuit by the moving party deprived the Court of subject matter jurisdiction. This blog post will briefly discuss these 3 grounds.

The law is settled that a settlement agreement is not considered valid unless the parties agreed to all the material terms of the settlement. Because a settlement agreement is considered a contract the legal principles which apply to contracts apply in general to settlement agreements. A contract requires mutual assent. Any lack of mutual assent would render any settlement agreement invalid.

Additionally a settlement agreement is not enforceable under Code of Civil Procedure section 664.6 unless it has been signed by all of the parties to the agreement outside the presence of the Court or is made orally before the Court. The California Supreme Court and Courts of Appeal have that the settlement agreement must be signed by the litigants themselves. No other person such as an attorney, spouse or other agent may sign on behalf of a party.

Now we come to the third common ground for opposition. Some settlement agreements provide that the plaintiff will dismiss the action with or without prejudice upon all parties signing the settlement agreement. Unless the agreement states otherwise and the Court has been requested to retain jurisdiction over the parties to enforce the settlement agreement the Court is without power to grant the motion due to the fact that a dismissal terminates an action pursuant to Code of Civil Procedure § 581. After a case has been dismissed no court has any subject matter jurisdiction to grant any relief other than costs and fees.

Attorneys or parties in California who would like to view a portion of a 13 page sample opposition containing brief instructions, 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 Subscribe to FREE weekly legal newsletter for more information.

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

You can view 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 special motion to strike in California

An opposition to a special motion to strike or Anti-SLAPP motion in California is the topic of this blog post. The opposition 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.

Any party served with a special motion to strike should be sure to conduct a thorough review of the motion and supporting declarations to determine what grounds exist for an opposition.

The first possible ground for opposition would be that the special motion to strike is untimely in that a special motion to strike must be filed within 60 days after service of the complaint on the defendant, unless the trial court exercises its discretion to consider a later-filed motion.

Code of Civil Procedure § 425.16(f) states:  “The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.”

The California Supreme Court has stated that the purpose of the timing requirement is to allow for the early dismissal of any lawsuit that is subject to special motion to strike in order to minimize the cost to the defendant.

And several decisions of the California Courts of Appeal have stated that a trial court is not required to decide the merits of any special motion to strike that is not timely filed unless the court chooses to exercise its discretion.

The second possible grounds for opposition would be the fact that the moving defendant has failed to meet their burden of making a threshold showing that the challenged cause or causes of action is one arising from protected activity. Resolution of an anti-SLAPP motion requires the court to engage in a two-step process. First the moving defendant must demonstrate that the actions of which the plaintiff complains were done in furtherance of the right of the defendant to petition for redress of grievances or their right to free speech under the United States or California Constitution.

The California Supreme Court stated in a recent case that it is only in cases where the court determines that the defendant has met their burden of making a threshold showing that the plaintiff is required to show a probability of prevailing on any part of their claim. The Supreme Court also stated that only a cause of action that arises from protected speech or petitioning and that lacks even minimal merit is subject to being stricken under the anti-SLAPP statute.

Attorneys or parties in California who wish to view a portion of a sample 12 page opposition to a special motion to strike containing brief instructions, 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 Subscribe to FREE weekly legal newsletter for more information.

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

You can view 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.