The word “probate” generally refers to what happens to a person’s property when he or she dies. The purpose of probate is to see that the debts and taxes of the person who has died (the “decedent”) are paid and that the remaining property gets to the rightful owners.

Assets held in the decedent’s name alone are called “probate property” and will generally require a court proceeding to determine the beneficiaries. Probate property passes to the persons named in the will, or if there is no will, according to California law on intestate succession. The person who oversees the probate proceeding is called the executor or administrator. A will normally names an executor, usually a close relative. If there is no will, the court will appoint an administrator in a certain order of priority, starting with the surviving spouse, then children, etc.. It takes a minimum of 6 to 9 months to complete a formal probate court proceeding.

If there is a will then a petition for probate of will and letters testamentary must be filed. If there is no will then the petition is called a petition for probate and letters of administration.

Once the petition for probate has been filed, a notice of petition to administer estate must be published in a legal or “adjudicated” newspaper that publishes probate notices. The notice must be published three times and the first publication must commence at least fifteen days before the hearing on the petition for probate. Also all of the beneficiaries and other persons mentioned in the will must be mailed notice of the petition to administer estate at least fifteen days before the hearing.

In most uncontested cases either the will waives bond, or the heirs sign a waiver of bond.  Most courts will waive the bond if everyone has signed a waiver, particularly if only limited authority under the Independent Administration of Estates Act is requested.  Limited authority means that the executor or administrator may not sell any real property, or encumber any real property without obtaining court permission, and any sale of real property must be confirmed by the Court and a special notice published. If full authority is requested, most Courts will require a bond.

Full authority means that the executor or administrator does not have to obtain Court permission to sell any real property or encumber any real property. Instead they must serve all heirs, beneficiaries and other persons entitled to notice with a Notice of Proposed Action describing in detail what they plan to do, the notice must be served at least fifteen days before the proposed action. If anyone objects then the Court will hold a hearing on their objection.

At the hearing on the petition for probate, if no objections have been received the Court will appoint the executor or administrator, and also appoint a probate referee to appraise certain estate property such as automobiles, real estate, and other types of property which do not have a readily ascertainable cash value such as stocks, bonds, etc. Cash in the bank is appraised by the executor or administrator. The Inventory and Appraisement must be filed with the Court once all of the estate property has been properly appraised.

Notice to creditors must also be given. Even if no creditors exist a notice must be served on the California Franchise Tax Board. Any creditors given notice have until the later of sixty days after the notice was served, or four months after the letters were issued to file a creditor’s claim. The executor or administrator must approve the claim in whole or in part, or reject the claim. If a creditor’s claim is rejected then the executor or administrator must wait three months once the notice of rejection was served before a petition for final distribution can be filed.

Once all creditor’s claims have been dealt with, and after at least four months since the letters have been issued, then a petition for final distribution may be filed.

The petition for final distribution will generally request that the Court approve all actions taken by the executor or administrator, and must provide a complete accounting of the estate unless all heirs or beneficiaries have waived the accounting. The petition must also list the current value of all estate property, and all heirs or beneficiaries entitled to property of the estate, as well as what percentage they will receive. Also if the executor or administrator is requesting their statutory fee, or the fee for the attorney, a detailed breakdown of how the proposed fee is calculated must be included in the petition.

If the Court approves the petition for final distribution then an Order will be signed by the Judge. Then once all heirs and beneficiaries have signed a receipt stating that they have received all property to which they were entitled, the receipts are filed with the Court along with an Ex-Parte Petition for Final Discharge which requests that the Court discharge the executor or administrator. Once that is done the probate is over, if a bond was issued than the bonding company will cancel the bond once they have received a copy of the Order of Final Discharge.

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 15 years of experience in preparing probate paperwork for California. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal and Google Checkout which means that you can pay using most credit cards. Visit his website at http://www.legaldocspro.net

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Specifically, California Family Code § 2400(a)(4) now states that a marriage will qualify for a Summary Dissolution if the marriage is not more than five years in duration as of the date of separation of the parties.  Previously, the date of marriage could not be more than five years before the date of filing.

The main advantage of the Summary Dissolution of Marriage procedure is that it is less complicated and requires much less paperwork than the Standard Dissolution of Marriage. There is no court appearance required. Once the paperwork is filed you must wait until at least six months have passed to ask the court to enter a Judgment of Dissolution of Marriage.

The current qualifications for the Summary Dissolution of Marriage are:

One of the spouses has lived in the State of California for at least six months, and in the county of filing for at least three months before the date of filing.

The marriage is not more than five years in duration as of the date of separation of the parties.

There are no minor children who were born of the relationship before or during the marriage or adopted by the spouses during their marriage. The wife, to her knowledge, is not pregnant.

Neither spouse has an interest in any real property anywhere. (You may have a lease for a residence in which one of you lives. It must terminate within a year from the date of filing this petition. The lease must not include an option to purchase.)

Except for obligations with respect to automobiles, on obligations incurred by either or both spouses during their marriage, you do not owe no more than $6,000.

The total fair market value of community property assets, not including what you owe on those assets and not including automobiles, is less than $38,000.

Neither spouse has separate property assets, not including what they owe on those assets and not including automobiles, in excess of $38,000.

Both spouses must agree to waive forever any right to receive spousal support from each other.

Both spouses must sign the Joint Petition for Summary Dissolution of Marriage.

The main disadvantage of the Summary Dissolution of Marriage is that either spouse may revoke the Summary Dissolution of Marriage until a Judgment of Dissolution of Marriage is entered. If a revocation is entered than the spouses have to start over with a Standard Dissolution of Marriage.

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 15 years of experience in preparing legal documents for both Summary Dissolution of Marriage and Standard Dissolution of Marriage proceedings in California. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal and Google Checkout which means that you can pay using most credit cards.

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Requests for admissions are very useful in that they allow a party to get certain admissions or denials of issues relevant to the lawsuit on record before the trial, as well as authenticating certain documents. Therefore, if a party can get an order establishing the truth of each matter specified in the requests for admissions, that will greatly increase their chances of prevailing at trial.

Under Code of Civil Procedure Section 2033.280(b), if a party to whom requests for admission are directed fails to serve a response, the propounding party may move the court for an order establishing the truth of each matter specified in the requests for admission, Section 2033.280 contains no time limit for a motion to compel where no responses have been served.

And it is mandatory that the Court grant the order unless code compliant responses are served before the hearing on the motion.

The court shall make this order unless it finds that the party to whom the request for admissions was served, before the hearing on the motion, served a proposed response to the Request for Admissions that is in substantial compliance with Section 2033.220 See Code of Civil Procedure § 2033.280(b).

No informal “meet-and confer” requirement attaches before a party may bring a motion for an order establishing admissions. Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395.

Additionally, there is no time limit on bringing motions to have matters deemed admitted. (Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1584.)

Failure of the responding party to serve the requested responses in “substantial compliance” with the code prior to the hearing on a motion makes it mandatory that the court grant the admissions motion, Demyer, Supra, at pp. 395-396.

No separate statement is required when no response has been provided to the discovery. California Rule of Court 3.1345(b).

It is mandatory that the court impose a monetary sanction under § 2023 on the party or attorney, or both, whose failure to serve a timely response to request for admissions necessitated a aplication for an order establishing admissions. Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 634.

Attorneys or parties in the State of California who wish to purchase a sample motion for order having matters deemed admitted can click below.

http://www.scribd.com/doc/77507134/Sample-Motion-to-Have-Matters-Deemed-Admitted

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 15 years of experience in California civil litigation. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. Visit his website at http://www.legaldocspro.net

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Thus, obtaining an order shortening the time for hearing is a very useful tool in California civil litigation.

Code of Civil Procedure § 1005(b) and California Rule of Court § 3.1300(b) both state that a Court may prescribe a shorter time for filing and service of papers for a Motion than the times specified in Code of Civil Procedure § 1005.

Normally, a party seeking an ex parte order in a civil case must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance (absent a showing of exceptional circumstances justifying shorter notice). A declaration must be filed with the Court giving the details of when, and how notice was given to the opposing party. A proposed Order should also be submitted when the ex-parte documents are filed with the Court.

Attorneys or parties in the State of California who wish to purchase a sample ex-parte application for an order shortening time for hearing can click below.

http://www.scribd.com/doc/77431432/Sample-Ex-Parte-Motion-to-Shorten-Time

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 15 years of experience in California civil litigation. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. Visit his website at http://www.legaldocspro.net

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The rules governing requests for production of documents are found in Code of Civil Procedure § 2031.010, et seq.

Code of Civil Procedure § 2031.210 states in part that, “(a) The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item. (3) An objection to the particular demand for inspection, copying, testing, or sampling.”

Code of Civil Procedure § 2033.220 states that, “A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”

Code of Civil Procedure § 2031.230 states that, “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”

In responding to a request for admission the responding party should take care in framing their response and should ensure that any response complies with Code of Civil Procedure §§ 2031.210 through 2031.300. This is particularly true when the documents requested cannot be located. A vague response such as “unable to locate” or something similar will not suffice.

There is no numerical limit to the number of requests but a party served with excessive requests may seek leave of court to limit the number of requests. And unlike special interrogatories and requests for admission there are no format restrictions.

Any objections to a request for production should clearly set forth the specific ground for the objection, and if only part of the request is objectionable, the remainder of the request must be responded to. See Code of Civil Procedure § 2031.240.

The responses must be verified, and must be served on the requesting party within thirty (30) days after service of the requests for production of documents if they were personally served, or within thirty five (35) days if the requests were served by mail. Note that these time limits do NOT apply to unlawful detainer actions which are five (5) days if the requests were personally served or ten (10) days if the requests were served by mail.

Attorneys or parties to civil litigation in California who wish to purchase sample responses to requests for production of documents for use in an unlimited civil case can click below.

http://www.scribd.com/doc/77296920/Sample-Responses-to-Requests-for-Documents

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 15 years of experience in California civil litigation. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal and Google Checkout which means that you can pay using most credit cards.

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The rules governing requests for admission are found in Code of Civil Procedure § 2033.010, et seq.

Code of Civil Procedure § 2033.210 states that, “(a) The party to whom requests for admission have been directed shall respond in writing under oath separately to each request. (b) Each response shall answer the substance of the requested admission, or set forth an objection to the particular request. (c) In the first paragraph of the response immediately below the title of the case, there shall appear the identity of the responding party, the set number, and the identity of the requesting party. (d) Each answer or objection in the response shall bear the same identifying number or letter and be in the same sequence as the corresponding request, but the text of the particular request need not be repeated.”

Code of Civil Procedure § 2033.220 states that, “(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits. (b) Each answer shall: (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. (2) Deny so much of the matter involved in the request as is untrue. (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge. (c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.”

In responding to a request for admission the responding party should take care in framing their response. A vague response such as “unknown” will not suffice taking into account the requirements of Code of Civil Procedure § 2033.220(c) as previously shown.

There are certain format restrictions on requests for admission. No request for admission may contain subparts, or a compound, conjunctive or disjunctive question. See Code of Civil Procedure § 2033.060. This means that a request for admission cannot contain part a, b, c, etc., nor can it contain a question with more than one part, and it cannot contain the word “and” which is conjunctive, it also cannot contain the word “or” which is disjunctive. Although many requests for admission do violate these format rules any party using such a format runs the risk of the opposing party objecting on those grounds and having their objections sustained by a Judge.

Any objections to a request for admission should clearly set forth the specific ground for the objection, and if only part of the request is objectionable, the remainder of the request must be answered. See Code of Civil Procedure § 2033.230.

The responses must be verified, and must be served on the requesting party within thirty (30) days after service of the requests for admission if they were personally served, or within thirty five (35) days if the requests for admission were served by mail. Note that these time limits do NOT apply to unlawful detainer actions which are five (5) days if the requests were personally served or ten (10) days if the requests were served by mail.

Attorneys or parties to civil litigation in California who wish to purchase sample responses to requests for admission for use in an unlimited civil case can click below.

http://www.scribd.com/doc/77295620/Sample-Responses-to-Requests-for-Admission

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 15 years of experience in California civil litigation. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal and Google Checkout which means that you can pay using most credit cards.

Stan Burman-Registered Legal Document Assistant
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In many situations after a divorce case has been filed, both parties will have moved from the county where the judgment or other order was entered. And many times it will be convenient for the parties if the case is transferred to the county of residence of either of the parties. It is in these types of cases that the motion makes sense.

Code of Civil Procedure § 397.5 states that, “In any proceeding for dissolution or nullity of marriage or legal separation of the parties under the Family Code, where it appears that both petitioner and respondent have moved from the county rendering the order, the court may, when the ends of justice and the convenience of the parties would be promoted by the change, order that the proceedings be transferred to the county of residence of either party.”

An Order to Show Cause or motion should be filed in the county where the original judgment or order was made along with a declaration from the party who wants to change venue stating that both parties have moved and that the ends of justice and the convenience of the parties would be promoted by the change of venue.

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 15 years of experience in California divorce and family law matters. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal and Google Checkout which means that you can pay using most credit or debit cards. Visit his website at http://www.legaldocspro.net

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With the housing crisis and the large amount of foreclosures, the number of evictions after a foreclosure sale has increased dramatically.

The Courts have ruled that title issues ordinarily cannot be raised in unlawful detainers and, if raised in the tenant’s answer, are subject to motion to strike. See High v. Cavanaugh (1962) 205 Cal. App. 2d 495, 498–499.

Since title is part of plaintiff’s prima facie case, it is in issue under a specific denial, assuming title is alleged in the complaint. If valid title is not alleged in the complaint that would be grounds for a general demurrer on the grounds of failure to state a cause of action.

However, the rules are different in an eviction after foreclosure sale in California in that an eviction after foreclosure or other similar sale under Code of Civil Procedure § 1161a requires the purchaser seeking eviction to have “duly perfected” title. Thus, in an eviction after foreclosure, plaintiff’s lack of title is a defense. See Vella v. Hudgins (1977) 20 Cal. 3d 251, 255, see also Evans v. Super.Ct. (Robbins) (1977) 67 Cal. App. 162, 169.

There may be many reasons that a plaintiff does not have valid title. For instance Civil Code § 2934a requires that if a substitution of trustee is made after a notice of sale has been made that a new notice of sale containing the name, street address, and telephone number of the substituted trustee must be given pursuant to Civil Code § 2924f after execution of the substitution, or any sale conducted by the substituted trustee will be void. Clearly if the sale conducted by the substituted trustee was void than the purchaser did not obtain valid title to the property.

This type of objection could be raised by a demurrer, however, for tactical reasons it may be a better choice to plead that defense in the answer, and then obtain the appropriate documentary evidence, namely certified copies of the recorded documents, to use at trial, or in a possible motion for summary judgment and/or adjudication. Certified copies of documents are self-authenticating pursuant to California Evidence Code §§ 1450 through 1454.

Attorneys or parties in California who wish to view a portion of an answer to unlawful detainer that contains the affirmative defense that plaintiff does not have valid title can see below.

http://www.scribd.com/doc/46578589/Sample-Answer-to-Unlawful-Detainer-Complaint-for-California

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 15 years of experience in California Civil Litigation. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal and Google Checkout which means that you can pay using most credit cards. Visit his website at http://www.legaldocspro.net

Stan Burman Registered Legal Document Assistant Registration Number LDA-83 County of Orange Registration Expires 12/31/2012

In personam jurisdiction over a defendant is required whenever a personal judgment against him is sought such as a judgment for money damages, or an injunction. This would cover the vast majority of lawsuits, and hence personal jurisdiction is a major factor in most litigation.

Without personal jurisdiction over a defendant, no California court can impose any personal liability upon them or affect their personal rights. The rules as to personal jurisdiction are for the protection of the defendant, and hence can be waived by defendant. Indeed, jurisdictional defects are deemed waived unless defendant objects thereto promptly and by the proper procedure.

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

The three “traditional” bases for personal jurisdiction are:

service on persons physically present in forum state;

domicile within the state; and

consent or appearance in the action.

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

Although substitute service may be effective for other purposes, only personal service of process supports personal jurisdiction over nonresidents temporarily present in the state.

State courts can exercise personal jurisdiction over persons domiciled within the state at the time the lawsuit is commenced even if they are not actually present here. Milliken v. Meyer (1940) 311 U.S. 457, 462, 61 S.Ct. 339, 342; Allen v. Sup.Ct. (1953) 41 Cal.2d 306, 310-311.

Personal jurisdiction cannot be based solely on the fact that a defendant had been domiciled in California at some earlier time. Defendant’s domicile “contact” with California must be intact when the action is filed, for due process purposes. Hoerler v. Sup.Ct. (Hoerler) (1978) 85 Cal.App.3d 533, 538.

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

Actions speak louder than words in determining where a person is domiciled. Thus, for example, a person may file documents stating that he is a Nevada resident (e.g., for tax reasons), but still be found to be a California domiciliary if he spends most of his time here, has most of his property here, etc. See Briggs v. Sup.Ct. (1947) 81 Cal.App.2d 240, 250.

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

This is another of the “traditional” bases for personal jurisdiction that defines due process. Thus, jurisdiction may be upheld even in the absence of “minimum contacts” between the nonresident and the forum state.

A nonresident who appears in an action, either as plaintiff or defendant, thereby submits to the court’s exercise of personal jurisdiction.

A plaintiff “appears” by commencing the action; i.e., filing the complaint submits plaintiff to the personal jurisdiction of the court.

However, a defendant submits to the court’s jurisdiction only when it files a general, as opposed to a special, appearance.

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

Whether a defendant has made a “general appearance” is a fact-specific issue. The determinative factor is whether it “takes a part in the particular action which in some manner recognizes the authority of the court to proceed.” Hamilton v. Asbestos Corp., Ltd., supra, 22 Cal.4th at 1147, 95 Cal.Rptr.2d at 714; see also Mansour v. Sup.Ct. (Eidem) (1995) 38 Cal.App.4th 1750, 1756.

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

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

Defendant must serve and file the motion to quash within the time permitted to plead, unless the court extends the time for good cause shown.

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

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

However, a movant seeking relief on any basis other than lack of personal jurisdiction makes a general appearance, thereby waiving any defect in personal jurisdiction . . . notwithstanding a “special appearance” designation on the face of the motion. Greener v. Workers’ Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1037.

In order to meet its burden of proof, plaintiff is entitled to conduct discovery with regard to the issue of jurisdiction before the hearing on the motion to quash; e.g., to establish the nature and extent of the defendant’s “contacts” in California. The hearing date is often continued to facilitate such discovery. Mihlon v. Sup.Ct. (Murkey) (1985) 169 Cal.App.3d 703, 711.

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

The notice of motion must set a hearing date within 30 days after the notice is filed. The service requirements are those on motions generally. Note that you must schedule a hearing date within 30 calendar days of when your motion is filed. See Code of Civil Procedure § 418.10(b).

Although defendant is the moving party, the burden of proof is on the plaintiff: “Where jurisdiction is challenged by a non-resident defendant, the burden of proof is upon the plaintiff to demonstrate that ‘minimum contacts’ exist between defendant and the forum state to justify imposition of personal jurisdiction.” Mihlon v. Sup.Ct. (Murkey) (1985) 169 Cal.App.3d 703, 710; Floveyor Int’l, Ltd. v. Sup.Ct. (Shick Tube-Veyor Corp.) (1997) 59 Cal.App.4th 789, 793.

The burden is on the plaintiff to demonstrate by a preponderance of the evidence that all jurisdictional criteria are met. Ziller Electronics Lab GmbH v. Sup.Ct. (Grosh Scenic Studios) (1988) 206 Cal.App.3d 1222, 1232.

Jurisdictional facts must be proved by competent evidence at the hearing on the motion to quash. This generally requires affidavits or declarations by competent witnesses. A properly verified complaint may be treated as a declaration for this purpose. See Evangelize China Fellowship, Inc. v. Evangelize China FellowshiP (1983) 146 Cal.App.3d 440, 444.

An unverified pleading has no evidentiary value in determining personal jurisdiction. See Mihlon v. Sup.Ct. (Murkey), supra.

Even so, such pleadings are relevant in defining the cause of action asserted, and whether it arises out of the nonresident’s alleged local activities.

Except as otherwise provided by statute, hearsay declarations are not competent proof of facts alleged. Floveyor Int’l, Ltd. v. Sup.Ct. (Shick Tube-Veyor Corp.) (1997) 59 Cal.App.4th 789, 796, 69 Cal.Rptr.2d 457, 462– declaration by plaintiff’s attorney stating “discovery in this case revealed ..” was “nothing more than inadmissible hearsay”.

Normally, liability issues are irrelevant on a motion to quash.  However,  where jurisdiction is asserted on the basis of defendant’s having caused tortious effects in California, defendant may defeat jurisdiction by unequivocal proof that it did not cause plaintiff’s injury:  Plaintiff “cannot demand that we judge the question of jurisdiction in the light of a claim he apparently does not have.” J.M. Sahlein Music Co., Inc. v. Nippon Gakki Co., Ltd. (1987) 197 Cal.App.3d 539, 545.

Attorneys or parties who wish to view or purchase a sample motion to quash service for lack of personal jurisdiction in California sold by the author can click below.

http://www.scribd.com/doc/66213392/Sample-Motion-to-Quash-Service-for-Lack-of-Jurisdiction

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 15 years of experience in California civil litigation. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. Visit his website at http://www.legaldocspro.net

Stan Burman-Registered Legal Document Assistant
Registration Number LDA-83
County of Orange
Registration Expires 12/31/2012

A party who has not requested certain essential or critical documents during the discovery process whose existence is known, and which can be clearly identified, can use the notice to appear and produce documents to compel the other party to appear and produce the documents.

If only the attendance of the person as a witness is required, then service may be made personally at least ten (10) days before the trial or hearing, or fifteen (15) days before the trial or hearing if service is made by mail. Service should be made on the party, or their attorney if they have one.

If production of documents is required, then service may be made personally at least twenty (20) days before the trial or hearing, or twenty five (25) days before the trial or hearing if service is made by mail. Service should be made on the party, or their attorney if they have one. The notice should state the exact materials or things desired, as well as a statement that the person has them in their possession, or under their control.

The giving of the notice shall have the same effect as service of a subpoena on the witness, and the parties shall have those rights and the court may make those orders, including the imposition of sanctions, as in the case of a subpoena for attendance before the court. See Code of Civil Procedure § 1987(b).

Attorneys or parties in California who wish to view or purchase a notice to appear and produce documents for use on an individual in California civil litigation can click below.

http://www.scribd.com/doc/25608925/Sample-Notice-to-Appear-at-Trial-for-California

The author of this article, Stan Burman, is a freelance paralegal and legal document assistant with over 15 years of experience in California civil litigation. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. Visit his website at http://www.legaldocspro.net

Stan Burman-Registered Legal Document Assistant
Registration Number LDA-83
County of Orange
Registration Expires 12/31/2012