Horizontal stare decisis

The legal doctrine of horizontal stare decisis is the topic of this blog post. The legal doctrine known as stare decisis derives from the Latin phrase stare decisis et non quieta movere, meaning to adhere to precedent and not unsettle what is established. Horizontal stare decisis essentially means the effect of decisions by courts at the same level. This blog post will focus on the differences between horizontal stare decisis between the California and federal court systems.

The doctrine of stare decisis is usually one of the first concepts taught in most law schools and is also taught in some paralegal schools as well as at least a basic understanding of the doctrine is essential for anyone conducting legal research.

Horizontal stare decisis is somewhat different from vertical stare decisis. For instance, in the federal system, an opinion from one circuit court of appeals may be persuasive precedent but is not binding on other courts of appeals. See Hart v. Massanari, 266 F. 3d 1155, 1172-73 (9th Cir. 2001). This allows the circuits to reach contrary decisions suitable for decision by the Supreme Court.

However within the Ninth Circuit for example, horizontal stare decisis operates to bind subsequent panels. This means that the first panel of Ninth Circuit judges to publish an opinion on an issue binds not only district courts within the circuit but also subsequent Ninth Circuit panels. For the Ninth Circuit to overrule its own precedent, it must issue an en banc decision. See Miranda B. v. Kitzhaber, 328 F. 3d 1181, 1185 (9th Cir. 2003) that case stated that a panel must follow prior panel decisions unless a Supreme Court decision, an en banc decision, or subsequent legislation undermines its precedential value.

However in California the situation is radically different in that there is no horizontal stare decisis between appellate panels of the California Court of Appeal. See Marriage of Shaban (2001) 88 Cal. App. 4th 398, 409. So one appellate panel is not bound by the decision of another.

And when there are two published decisions that are in conflict, the superior court “can and must make a choice between the conflicting decisions.” See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 456.

The California Supreme Court has stated that, there is only one California Court of Appeal, albeit administratively divided into districts and sometimes subdivided into divisions. See Auto Equity Sales, Inc. v. Superior Court, (1962) 57 Cal. 2d 450, 455.

Every superior court must follow any published decision from any district and any division of any court of appeal. See Cuccia v. Superior Court, (2007) 153 Cal. App. 4th 347, 353-54 that case stated that stare decisis requires a superior court to follow a published court of appeal decision even if the trial judge believes the appellate decision was wrongly decided.

Because there is no horizontal stare decisis in California panels of the California Court of Appeal are not bound by any decisions of prior panels, even within the same district. Thus, any particular district or division of the court of appeal may disagree with a decision by any other district or division. This means that while the U.S. Supreme Court regulates circuit-splits from the 13 federal circuits, the California Supreme Court oversees potential splits from what are essentially 19 separate courts of appeal considering each of the six districts plus the divisions within those districts as independent courts.

In this situation, the trial court is free to pick which of the decisions to follow. See Auto Equity Sales, Inc., supra, 57 Cal. 2d at 456 (“where there is more than one appellate court decision, and such appellate decisions are in conflict,” the superior court “can and must make a choice between the conflicting decisions”).

However in actual practice some superior court judges tend to view this freedom as more theoretical than real. A California Court of Appeal has even stated in a published decision that “a superior court ordinarily will follow an appellate opinion emanating from its own district even though it is not bound to do so.” See McCallum v. McCallum, (1987) 190 Cal. App. 3d 308, 315.

Attorneys or parties who would like to view portions of over 250 sample legal documents for California and Federal litigation sold by the author of this blog post can use the link shown below.

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 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.

 

 

 

Vertical stare decisis in California and Federal Courts

Vertical stare decisis in California and Federal Courts is the topic of this blog post. The legal doctrine of stare decisis derives from the Latin phrase stare decisis et non quieta movere, meaning to adhere to precedent and not unsettle what is established. See In re Osborne, 76 F. 3d 306, 309 (9th Cir. 1996). This blog post will discuss vertical stare decisis which deals with the precedential effect of decisions on higher or lower courts. Horizontal stare decisis meaning the effect of decisions by courts at the same level will be discussed in a later blog post.

The doctrine of stare decisis is generally one of the first concepts taught in law schools and some paralegal schools as well as at least a basic understanding of the doctrine is essential for anyone conducting legal research.

Simply stated the doctrine of vertical stare decisis means that the decisions of higher courts are binding precedent on lower courts. This doctrine applies in both California and federal courts. However there are differences in how the doctrine of vertical stare decisis is applied under California and federal law. There are also differences between what is known as vertical stare decisis and what is known as horizontal stare decisis.

Vertical stare decisis under federal law is fairly easy to understand. Essentially the decisions of the U.S. Supreme Court are binding on all other federal courts, decisions of the various circuit courts of appeals are binding on the federal district courts located within each circuit, and the decisions of district courts are not binding authority as they generally have no binding precedential effect although they may still have what is known as persuasive authority.

For example, a district court judge in California is not bound to follow precedent from any circuit court except published decisions from the Ninth Circuit Court of Appeals, which has appellate jurisdiction over the federal courts located in California. Thus geography, particularly where any given district court sits within a given circuit is very important in federal practice.

As for the federal and state supreme courts, each is free to overrule its own precedents. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); see also Freeman & Mills, Inc. v. Belcher Oil Co., (1995) 11 Cal. 4th 85, 93.

California Supreme Court decisions bind all lower courts no matter how old the Supreme Court opinion might be. See Lawrence Tractor Co. v. Carlisle Ins. Co., (1988) 202 Cal. App. 3d 949, 954 (1988); see also Mehr v. Superior Court, (1983) 139 Cal. App. 3d 1044, 1049 n.3.

Any Federal court that is applying state law is bound by the highest state authority to have ruled. For example, the Ninth Circuit may be bound by a decision of the California Supreme Court or the California Court of Appeal if that is the highest court to have addressed the issue of state law. See Johnson v. Frankell, 520 U.S. 911, 916 (1997) (federal courts must follow state’s highest court on question of state law); see also Cal. Pro-Life Council, Inc. v. Getman, 328 F. 3d 1088, 1099 (9th Cir. 2003) (federal courts must follow state’s intermediate appellate courts absent convincing evidence that the state’s highest court would rule differently).

Note that in California any state courts applying federal law are bound by decisions of the U.S. Supreme Court. See Elliott v. Albright, (1989) 209 Cal. App. 3d 1028, 1034. However they are not bound by any district or circuit court decisions although such rulings are entitled to “substantial deference.” See Yee v. City of Escondido, (1990) 224 Cal. App. 3d 1349, 1351.

It should also be noted that any federal court decisions on state law are not binding on state courts. See Qualified Patients Ass’n v. City of Anaheim, (2010) 187 Cal. App. 4th 734, 764; see also Bodell v. Walbrook (9th Cir. 1997) 119 F. 3d 1411, 1422 (Kozinski, J., dissenting) (“The good thing when a federal court misapplies state law is that its opinion can be ignored by the state courts.”)

Attorneys or parties who would like to view portions of over 250 sample legal documents for California and Federal litigation sold by the author of this blog post can use the link shown below.

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 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.

Sewer service in California litigation

The issue of sewer service in litigation is the topic of this blog post. The term sewer service refers to the figurative and in some cases actual practice of throwing the summons and complaint in the sewers near the homes of defendants such as debtors and then obtaining a default judgment from the court by filing a false proof of service. The great majority of cases that I work on are from the State of California although the basic principles discussed in this blog post should be quite similar throughout the United States.

This despicable and illegal practice has been going on for over 40 years and is growing more and more widespread all over the United States, particularly in debt collection cases. Note that any judgment entered without valid service of process is void anywhere in the United States as the United States Supreme Court ruled unanimously in a case decided over 25 years ago that a judgment entered where the defendant was not properly served is void, violates due process and can be set aside at any time.

I do believe that most process servers are honest and would never falsely claim that they served someone whom they had never served. However I also know from my own personal knowledge working in California and Federal litigation since 1995 that extreme cases of sewer service are a fact.

I recently worked on a case where the defendant was supposedly served by substituted service at a mail drop that he had not used as an address for over 2 years, the lawyers for the plaintiff had sent a demand letter to a post office box several months before. The defendant had no knowledge of the lawsuit or judgment until he was informed by someone that the real property he had sold to them had a lien on it. He then went to the Courthouse and copied the entire Court file. The documents show that one process server with one company had went to the mail drop office several times but that they “cannot verify the address is still used by the defendant”. Another document filed several months later by another process server with another company claims that they performed substituted service on the female employee “who verified the address is still used by the defendant.”

I worked on another case several years ago where on the exact date and time that the alleged service was made the defendants were on an airplane and were flying to the Philippines!

Cases such as the ones I have just described are a good situation in which to seriously consider filing a motion to vacate the default and judgment under California Code of Civil Procedure section 473(d) on the grounds that the default and judgment are void due to defective service of process resulting in a judgment void for lack of personal jurisdiction and also requesting that service be quashed as well.

Attorneys or parties in California that would like to view a portion of a 11 page sample motion to vacate a void judgment under Code of Civil Procedure section 473(d) and quash service of process 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.

Attorneys or parties who wish to view portions of over 250 sample legal documents for California and Federal litigation created by the author of this blog post can use the link shown below.

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 http://freeweeklylegalnewsletter.gr8.com/ for more information.

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

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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.

The vapor money theory

The vapor money theory is the topic of this blog post. Simply stated this theory goes something like “the bank never loaned me any money so I do not owe them anything and the loan agreement is void”. The “vapor money theory” rests on the assumption that any agreements entered into with a bank or other financial institution are void because the person receiving the loan did not receive any legal tender and because nothing of value was loaned to them because the transaction was based merely on a bookkeeping entry by the bank.

The vapor money theory has NO legal basis whatsoever as I will show in this blog post.

This legal argument is still being used by certain uninformed people despite the fact that it has been consistently rejected by the Courts in many jurisdictions.   In fact federal courts across the country have repeatedly labeled this legal argument frivolous. I have cited many cases below which discuss this legal argument.

In Demmler v. Bank One, NA (S.D.Ohio Mar. 9, 2006), No. 2:05-CV-322, unreported, the defendants made a similar argument and the Court discussed this theory as follows:

“[T]he Court concludes that the complaint is utterly frivolous and lacks any legal foundation whatsoever. * * * Suffice it to say that all of Plaintiff’s claims * * * stem from the same basic premise. Plaintiff alleges that the promissory note he executed is the equivalent of “money” that he gave to the bank. He contends that Bank One took his “money,” i.e., the promissory note, deposited it into its own account without his permission, listed it as an “asset” on its ledger entries, and then essentially lent his own money back to him. He contends that Bank One did not actually have the funds available to lend to him, but instead “created” the money through its bookkeeping procedures. He further argues that because Bank One was never at risk, and provided no consideration, the promissory note is void ab initio, and Defendants’ attempts to foreclose on the mortgage are therefore unlawful. Plaintiff offers no authority for this patently ludicrous argument. Similar arguments have been rejected by federal courts across the country.  See Frances Kenny Family Trust v. World Savings Bank, No. C04-03724 WHA, 2005 WL 106792 (N.D.Cal. Jan. 19, 2005) (sanctioning plaintiffs and rejecting their “vapor money” theory); Carrington v. Federal Nat’l Mortgage Ass’n, No. 05-cv-73429-DT, 2005 WL 3216226, at 3 (E.D.Mich. Nov. 29, 2005) (finding “fundamentally absurd and obviously frivolous” plaintiff’s claim that the lender unlawfully “created money” through its ledger entries).”

Several published cases have dealt with this issue such as United States v. Schiefen, 926 F.Supp. 877, 880-81 (D.S.D.1995) (rejecting arguments that there was insufficient consideration to secure the promissory note, and that lender had “created money” by means of a bookkeeping entry. Rene v. Citibank, 32 F.Supp.2d 539, 544-45 (E.D.N.Y.1999) (rejecting claims that because lender did not have sufficient funds in its vault to make the loan, and merely “transferred some book entries,” the lender had created illegal tender).

I truly feel sorry for anyone who still believes in validity of this legal argument because by using that theory they are not only risking losing their case they also face the real risk of being sanctioned by the Court. Note that in the Frances Kenny Family Trust case cited above the attorney for the plaintiffs was sanctioned in the amount of $10,000.00 by the Court.

While I have no love for the big banks whatsoever I also detest the use of kooky legal theories that have been completely rejected by the Courts. I wrote this blog post in the hopes that it will convince the uninformed that using the vapor money theory will not work and instead will backfire on them.

Attorneys or parties who wish to view portions of over 250 sample legal documents for California and Federal litigation created by the author of this blog post can use the link shown below.

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 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.

Unlawful detainer judgment in California reversed due to defective three-day notice

Another unlawful detainer judgment in California has been reversed due to a defective three-day notice. The case of Foster v. Williams recently decided by the Appellate Division of the Superior Court in Los Angeles County, California is the topic of this blog post. The decision in this case which was filed on September 9, 2014 has been certified for publication. The decision reversed the judgment entered against the defendant Keith Williams due to a defective three-day notice and one of the grounds was that the notice failed to specify the physical address where rent had to be paid, instead listing only a name and directing the tenant to pay the rent at an online rental payment website.

The slip opinion at page 2 states that the judgment was reversed because “The three-day notice did not comply with Code of Civil Procedure section 1161, (erroneously listed as 1162 in the slip opinion) subdivision (2)’s requirement that the notice provide the “address of the person to whom the rent payment shall be made” because the notice listed a uniform resource locator (URL) address, as opposed to the address of a physical place where the rent had to be paid. The notice also did not comply with Code of Civil Procedure section 1161, (erroneously listed as 1162 in the slip opinion) subdivision (2), because it failed to state that payment could be made pursuant to a previously established electronic funds transfer procedure.”

The slip opinion at page 2 states regarding the three-day notice at issue that “Plaintiff’s unlawful detainer action proceeded to trial based on a three-day notice to pay rent or quit. The three-day notice indicated it was served on defendant on June 24, 2013, and required him to pay $1,350 in rent for the month of June 2013. The notice also provided, “Your rent payment should be made payable to: Guest House Management and payment shall be delivered to: [¶] Name: Rick at the following address: http://www.erentpayment.com,” and listed a telephone number. On the day set for trial, defendant made an oral motion arguing the three-day notice was defective because it included a “web address” instead of a “physical address.” The court denied the motion, determining Code of Civil Procedure section 1161, subdivision (2), did not specifically require a physical address to be listed, and a “web address” constituted an “address” under the statute.”

The Appellate Division decision then went to discuss in detail the reasons for the requirements of a three-day notice under Code of Civil Procedure section 1161, subdivision (2) and on pages 3 and 4 of the slip opinion states in part that, “A judgment must be reversed when it is based on a three-day notice which lacks the information required by Code of Civil Procedure section 1161, subdivision (2).”

I have seen numerous defective three-day notices as I have been working in California and Federal litigation since 1995 and prior to that I worked in both commercial and residential property management for several years.

This case is just one more reason that any California tenant who is served with a three-day notice to pay rent or quit should closely examine the notice to determine if it meets the requirements discussed in this blog post. If the three-day notice is defective than a demurer can be filed objecting to the complaint on the grounds that the three-day notice is defective.

Attorneys or parties in California who would like to view a portion of an 11page sample demurrer to an unlawful detainer (eviction) complaint in California objecting to the complaint on several grounds, including that the three-day notice is defective, with memorandum of points and authorities with citations to case law and statutory authority 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.

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 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 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.

 

 

 

 

California Court of Appeal case of Fleet v. Bank of America

The recent California Court of Appeal case of Fleet v. Bank of America is the topic of this blog post. This case was decided by the Fourth District Court of Appeal, Division Three on August 25, 2014, on September 23, 2014 the Court granted the request of several parties for publication.

I truly feel that this case is unusual and may represent a turning point as it is the only published case from California that I am aware of in which an appeals Court appears to be at least considering that the banks may be engaging in a pattern of fraud and deceit.

The opinion begins on page 2 of the slip opinion with the wording, “This appeal represents another example of what is becoming a well established and predictable pattern.” The opinion then goes on to state on page 3 that “[T]his case falls into line with a number of cases in which a homeowner has been promised a mortgage modification under a program designed to forestall foreclosure only to find the notice thereof posted on the door. The kindest interpretation to place on this scenario is lender incompetence…This is the most likely explanation, given the size of the institutions involved, but it is not the only one, and as the numbers of such cases grow, other less benign explanations are coming to more and more minds.” The opinion then goes on to cite the Ninth Circuit Court of Appeals case of Corvello v. Wells Fargo Bank (9th Cir. 2013) 728 F.3d 878, 885 (conc. opn. of Noonan, J.).

On page 8 of the slip opinion in discussing the promissory fraud cause of action the opinion states that, “They were damaged both by the loss of their home and by the loss of the money they expended jumping through hoops, running around in circles, and talking to walls in an effort to obtain the loan modification BofA had promised them, all the while unaware that BofA had no intention of modifying their loan.”

The Court reversed the Judgment entered in the case and reversed the order sustaining the demurrer to the cause of action for fraud as to BofA and several other individual defendants, as well as reversing the order sustaining demurrers to the breach of contract and promissory estoppel causes of action against BofA although the Court did affirm the order sustaining the demurrers without leave to amend against several other defendants including Recon Trust.

The Court also affirmed the order sustaining the demurrer to the cause of action for accounting without leave to amend.

Interestingly enough on page 13 of the slip opinion the Court also urged the Fleets to engage counsel to, “[G]ive them a chance to litigate on equal terms with BofA.”

I read a lot of published and unpublished cases in my work and this has to be the first case I have read from California that even hints that the Courts may be finally waking up to what the big banks are actually doing. And that is good news indeed.

Attorneys or parties in California who would like to view over 250 sample legal documents for California and Federal litigation created by the author of this blog post can use the link shown below.

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.

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 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 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.

Notice of unavailability of counsel in California

A notice of unavailability of counsel in California is the topic of this blog post. These notices are based on the California Court of Appeal decision in Tenderloin Housing Clinic, Inc. v. Sparks, (1992) 8 Cal. App. 4th 299, 307 in which the Court of Appeal affirmed an award of sanctions against an attorney who intentionally and in bad faith scheduled a deposition and also rescheduled a demurrer hearing despite the fact that they knew that the opposing attorney was on vacation in England. The Court of Appeal specifically found that purposefully scheduling a conflicting proceeding without good cause is sanctionable conduct.

While notices of unavailability of counsel are widely used and often filed both with the trial court and even appellate courts the California Courts of Appeal have stated that, “To the extent this practice [of filing a notice of unavailability] attempts to put control of the court’s calendar in the hands of counsel—as opposed to the judiciary—it is an impermissible infringement of the court’s inherent powers.” Carl v. Superior Court (2007) 157 Cal.App.4th 73, 75; see also In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 824-825.

Any attorney or party considering the use of a notice of unavailability may want to serve the notice on all interested parties but not file the notice with the Court as not only may it be rejected but the mere fact of filing the notice may not sit well with the Judge handling the case who is most likely aware of the published cases cited above.

However it cannot be denied that a notice of unavailability of counsel does serve an important purpose in that it provides written proof that opposing counsel was notified of the unavailability and can prove to be very helpful if any actions taken in bad faith are initiated during the period of unavailability and a party wishes to file a motion for sanctions.

Attorneys or parties in California who would like to view a sample notice of unavailability of counsel created 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.

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 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.

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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.

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