Motion for summary judgment in California

A motion for summary judgment in California pursuant to Code of Civil Procedure section 437c is the topic of this blog post.

Code of Civil Procedure section 437c(a) states in pertinent part that, “Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.”

There are numerous requirements for motions for summary judgment. Any party considering moving for summary judgment should carefully read the entire text of Code of Civil Procedure section 437c to ensure that they have complied with all applicable requirements.

For instance, the party moving for summary judgment must wait until at least 60 days have passed since the general appearance of the party against whom the motion is directed unless the Court orders otherwise. And a minimum of 75 calendar days notice of the hearing must be given. If notice of the motion is given by regular mail at least 5 calendar days must be added to the notice period. Note that there is NO statutory procedure for shortening the notice period for a motion for summary judgment.

And the party moving for summary judgment must submit a separate statement of undisputed material facts with the motion.

The advantage of filing a motion for summary judgment is that if the Court is convinced that there are no triable issues of material facts it must grant the motion as Code of Civil Procedure § 437c(c) states in pertinent part that, “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Code of Civil Procedure § 437c(p)(1) and (2) state that for purposes of motions for summary judgment and summary adjudication,

“(1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.”

(2) A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.”

Note that the party opposing the motion must produce admissible evidence showing that a triable issue of material fact exists and cannot merely rely on the allegations or denials of their pleadings.

Attorneys or parties in California who would like to view a portion of a sample 19 page motion for summary judgment by a plaintiff in California sold by the author can see below.

Attorneys or parties in California who would like to view a portion of a sample 18 page motion for summary judgment by a defendant in California 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 245 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.

To view over 245 sample legal documents for sale by the author of this blog post visit the following link: http://www.scribd.com/LegalDocsPro

*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 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 going to 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.

 

 

 

 

 

 

 

Tax relief price rollback from LegalDocsPro

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Petition for order determining succession to property in California

A petition for an order determining succession to property in California is the topic of this blog post. This is also known as a summary or simplified probate proceeding as it is much quicker and less expensive than a standard probate proceeding in California.

The statutes in California governing a court order determining succession to property are found in Probate Code Sections 13150 through 13158. A summary probate in California is initiated by the filing of a petition in the superior court for an order determining succession to real or personal property.

The petitioner must wait until at least 40 days have elapsed since the death of the decedent and the gross value of the decedent’s real and personal property in California may not exceed $150,000. See Probate Code section 13151. This limit was only $100,000 prior to January 1, 2012.

Note that a probate referee must complete and sign an inventory and appraisal certifying the amount of the gross value of the estate which must be filed with the petition.

However the value of the estate is calculated using the exclusions listed in Probate Code section 13050 which states in pertinent part that the following property is excluded:

Real property located outside California;

joint tenancy property;

property that goes outright to a surviving spouse;

life insurance, death benefits, and other assets not subject to probate that pass to named beneficiaries;

multiple-party accounts and payable-on-death accounts;

registered manufactured or mobile homes;

any numbered vessel;

registered motor vehicles;

salary including vacation pay due the decedent up to $15,000;

amounts due decedent for services in the armed forces, and

property held in trust, including a revocable living trust.

The simplicity of filing a petition to determine succession to real or personal property is a huge bonus. In some counties a hearing on the petition can be scheduled within 4-6 weeks from filing depending on the court calendar. The cost is much less as there is no publication required in an adjudicated newspaper although notice of the petition must be given to all heirs and beneficiaries listed in any will at least 15 days before the hearing date.

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters including Probate 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.

To view over 255 sample legal documents for sale by the author of this blog post visit the following link: http://www.scribd.com/LegalDocsPro

*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: http://freeweeklylegalnewsletter.gr8.com/

View sample legal document packages for sale here: 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.

 

 

 

 

Spousal property petition in California

A spousal property petition in California is the topic of this blog post. Assets inherited by a surviving spouse or registered domestic partner in California can be transferred with a simplified procedure known as a Spousal or Domestic Partner Property Petition.

Probate Code sections 13500 through 13660 govern the passage of property to a surviving spouse without administration. Because the standard proceedings for administration of an estate in California are very costly and take a minimum of 7-8 months in most counties, the spousal property petition is very advantageous and a useful shortcut.

The petition must be submitted to the probate court for approval, however the process is simple and much faster than regular probate. There is no limit on the value of property that can be transferred this way.

The spousal property petition may be filed even though no other proceedings for the administration of the estate are pending. However, if a standard probate proceeding has already been filed and is pending the petition may be filed in that proceeding and may request an order that administration of all or part of the estate is not necessary for the reason that all or part of the estate is property passing to the surviving spouse. See Probate Code § 13650.

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters including Probate 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.

To view over 255 sample legal documents for sale by the author of this blog post visit the following link: http://www.scribd.com/LegalDocsPro

*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: http://freeweeklylegalnewsletter.gr8.com/

View sample legal document packages for sale here: 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 suppress evidence in California

A motion to suppress evidence in California under Penal Code section 1538.5 is the topic of this blog post. Section 1538.5 covers only the suppression of evidence obtained as a result of a purportedly illegal search or seizure, in other words a violation of the Fourth Amendment.   A motion to suppress evidence may be used to challenge searches that were conducted either with or without a search warrant.

Penal Code § 1538.5(a)(1)(A) states in pertinent part that, “On motion, the court shall suppress evidence the People obtained as a result of a search or seizure on the grounds that the search or seizure without a warrant was unreasonable.”

A motion to suppress evidence can be a powerful tool as the prosecution may not have a solid case against a defendant if evidence is excluded. If the motion to suppress evidence is granted, the prosecutor’s case against the moving defendant may be so lacking in evidence that it essentially falls apart. That may prompt the prosection to either dismiss the charges, or negotiate a favorable plea bargain.

The motion to suppress evidence must be in writing and must also be accompanied by a memorandum of points and authorities that lists the specific items of property or evidence sought to be suppressed and the factual basis and legal authorities in support of the motion. See Penal Code §1538.5(a)(2).

The law in California is well settled that the burden of proving that a search conducted without a warrant was justified lies with the prosecution. However the moving defendant has the initial burden of showing that a search or seizure was without a warrant and that it was unreasonable under the circumstances. The defendant can meet this burden by showing that the police performed a warrantless seizure.

The California Supreme Court has ruled that the the prosecution must also meet the burden of proving that a defendant’s manifestation of consent was the product of their free will and not a mere submission to an express or implied assertion of authority. Consent is not voluntary if it merely reacts to coercion or duress.

In misdemeanor cases, the motion to suppress must be made and heard before trial. See Penal Code § Section 1538.5(g). However, the defense is entitled to a continuance of up to 30 days in misdemeanor cases to prepare for the hearing on the motion. See Penal Code § 1538.5(l).

If the defendant was not aware of the grounds for the motion until the case is already in trial, the motion may be made and heard during trial. Penal Code § 1538.5(h).

In felony matters, the motion may be made either at the preliminary hearing or later, upon filing of the information. See Penal Code §§ Section 1538.5(f)(1) and 1538.5(f)(2) for more details.

Attorneys or parties in California who would like to view a portion of a sample motion to suppress evidence from a search conducted without a warrant in California 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 245 sample legal documents for California and Federal litigation.  If you are in need of assistance with a possible motion to suppress evidence or other California 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.

To view over 245 sample legal documents for sale by the author of this blog post visit the following link: http://www.scribd.com/LegalDocsPro

*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 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 going to 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 for protective order regarding interrogatories in California

A motion for a protective order regarding special interrogatories in California is the topic of this blog post. A protective order regarding interrogatories in California is filed pursuant to Code of Civil Procedure section 2030.090 and is used in various situations including situations where the propounding party has propounded more than 35 special interrogatories without attaching the declaration for additional discovery required, or has propounded an excessive number of interrogatories, or the interrogatories are clearly not relevant to any claim or defense involved in the action and are unduly burdensome and oppressive.

Code of Civil Procedure section 2030.090 states in pertinent part that, “When interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. (b) The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That the set of interrogatories, or particular interrogatories in the set, need not be answered.

(2) That, contrary to the representations made in a declaration submitted under Section 2030.050, the number of specially prepared interrogatories is unwarranted.

(3) That the time specified in Section 2030.260 to respond to the set of interrogatories, or to particular interrogatories in the set, be extended.

(4) That the response be made only on specified terms and conditions.

(5) That the method of discovery be an oral deposition instead of interrogatories to a party.

(6) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a certain way.

(7) That some or all of the answers to interrogatories be sealed and thereafter opened only on order of the court.

(c) If the motion for a protective order is denied in whole or in part, the court may order that the party provide or permit the discovery against which protection was sought on terms and conditions that are just.”

Sanctions may be imposed against the losing party on any motion for a protective order.

Code of Civil Procedure section 2030.090(d) states that, “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

The burden is on the party seeking a protective order to show good cause for the protective order.

The party seeking a protective order bears the burden to show good cause for the requested order. Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.

The moving party must do the following to be entitled to a protective order.

They must promptly move for a protective order.

They must comply with the meet and confer requirement.

They must also meet their burden that the special interrogatories propounded are excessive, or clearly do not relate to any claim or defense that is at issue in the case and are unduly burdensome and oppressive.

Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. See Code of Civil Procedure section 2017.010. Thus the law in California has established a relevancy standard.

A California Court of Appeal has stated that any party served with discovery requests that fail to meet the relevancy standard may move for a protective order on the grounds that the discovery requests are unduly burdensome and oppressive.

Attorneys or parties in California who would like to view a portion of a sample 15 page motion for protective order regarding interrogatories 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 245 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.

To view over 245 sample legal documents for sale by the author of this blog post visit the following link: http://www.scribd.com/LegalDocsPro

*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 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 going to 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 compel testimony at deposition in California

A motion to compel testimony at a deposition in California is the topic of this blog post. This motion to compel may also request an order to compel the production of any documents that were requested in the deposition notice and were not produced by the deponent at the deposition. This blog post will discuss the motion to compel attendance at deposition and produce documents that is only to be used when the party to be deposed attended the deposition but refused to answer questions or produce documents despite being served with a valid notice of deposition.

The motion to compel testimony and produce documents in California is authorized by Code of Civil Procedure section 2025.480 which states in pertinent part that,

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

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

Note that the motion to compel testimony MUST be made within 60 days after the completion of the record of the deposition, and as with other motions to compel the motion must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040, the motion should also show specific facts showing good cause for the production of any documents specified in the deposition notice.

In general, California allows every party to an action the right to take depositions as a matter of right. See Greyhound v. Superior Court (1961), 56 Cal.2d 355, 388; see also Kramer v. Superior Court (1965), 237 Cal.App.2d 753, 755; and Goodman v. Citizens Life & Cas. Ins. Co. (1967), 253 Cal.App.2d 807, 819.

The refusal of a deponent to answer any questions by a blank claim of the privilege against self-incrimination is not proper and has no merit. This is due to the fact that objections using a claim of privilege must be raised in response to a particular question, not to any and all questions.

The opponent who refused to proceed with the deposition has the burden of proof and must show good cause why the deposition should not proceed. A California Court of Appeal has ruled that the scope of examination at a deposition should not be limited unless the opponent can make a strong showing that the information sought is either privileged or irrelevant.

The California Supreme Court ruled in a case from over 50 years ago that witnesses at a deposition must answer all questions that are seeking information that is not privileged and that is material to the subject matter of the action.

Any award of sanctions is authorized by Code of Civil Procedure section 2025.480(j) which states that, “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

If the party filing the motion can make a strong showing that the refusal to answer questions or produce documents was willful they are much more likely to be awarded sanctions as a willful refusal to comply with discovery makes the imposition of monetary sanctions mandatory.

Parties considering filing a motion to compel testimony at deposition should make reasonable good faith efforts to meet and confer prior to filing the motion as some Judges will take the extent of the meet and confer efforts into account when determining the amount of sanctions to be awarded, if any.

Attorneys or parties in California who would like to view a portion of a sample motion to compel testimony at deposition and production of documents 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 245 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.

To view over 245 sample legal documents for sale by the author of this blog post visit the following link: http://www.scribd.com/LegalDocsPro

*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 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 going to 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.