Responding to requests for admission in California

This blog post will discuss responding to requests for admission in California civil litigation.

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 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.

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Filing a motion for change of venue under Code of Civil Procedure Section 397.5

This blog post will briefly discuss filing a motion for change of venue in a dissolution (divorce) case under California Code of Civil Procedure Section 397.5 in California. This procedure can also be used in a legal separation or nullity proceeding. Note that this code section does not apply unless both parties have moved from the county where the original judgment or order was made.

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  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. Visit his website at http://www.legaldocspro.net

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Defenses to an unlawful detainer (eviction) after foreclosure in California

This blog post will briefly discuss some of the affirmative defenses that may be raised by defendants in an unlawful detainer (eviction) after foreclosure sale in California. Note that many of the defenses mentioned in this blog post can only be used by defendants in an eviction after foreclosure sale in California.

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 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. 

Subscribe to his weekly newsletter with legal tips and tricks for California.
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Motion to quash for lack of personal jurisdiction in California

This blog post will briefly discuss the issue of personal jurisdiction in California and the filing of a motion to quash based on lack of personal jurisdiction over a defendant. Personal jurisdiction is also known as “in personam jurisdiction”.

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 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.

Subscribe to his weekly newsletter with legal tips and tricks for California.
http://TinyWebLink-001.com/?pid=6585639

 

Notice to Appear and Produce Documents in California

This blog post will briefly discuss the use of a notice to appear at trial or hearing and produce documents in California, also known as a notice in lieu of subpoena duces tecum. The notice is given pursuant to Code of Civil Procedure § 1987(b) and (c) and can only be used on a party to the civil action or proceeding, or someone who is an officer, director, or managing agent of any such party. One of the main advantages of using the notice to appear is that service may be made by mail, instead of personal service as is required with a standard subpoena.

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 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.

Subscribe to his weekly newsletter with legal tips and tricks for California.
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Motion to compel responses to request for production of documents in California

This blog post will discuss filing a motion to compel responses to requests for production of documents in California civil litigation. Motions to compel can be a very useful tool in forcing the other party to provide full and complete responses to requests for production of documents.

Code of Civil Procedure § 2031.300(b) states that, if a party fails to respond to a demand for inspection of documents, the propounding party may move the court for an order compelling responses. As with interrogatories, there is no time limit for bringing the motion to compel. This only applies if NO responses are received, or if unverified responses are received.

In California, unsworn responses to discovery are tantamount to no responses at all. See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636; Zorro Investment Company v. Great Pacific Securities Corporation (1977) 69 Cal.App.3d 907, 914.  So if the responses received are not verified then a motion to compel responses would be the proper motion.

The party to whom the inspection demand is directed also waives any objection to the demand unless the party’s failure to serve a response was due to “mistake, inadvertence, or excusable neglect.” See Code of Civil Procedure § 2031.300(a). In addition, the court “shall” impose monetary sanctions against a party who unsuccessfully opposes a motion to compel unless it finds that the party acted “with substantial justification” or other circumstances render sanctions “unjust.” See Code of Civil Procedure § 2031.300[c].

Every court has the power to compel obedience to its judgments, orders, and process in an action or proceeding pending before and to use all necessary means to carry its jurisdiction into effect. Fairfield v. Superior Court, 246 Cal.App.2d 113, 120 (1966); Stewart v. Colonial Western Agency, Inc., 87 Cal.App.4th 1006, 1016 (2001) (judges have broad powers and responsibility to determine what measure and procedures are appropriate in varying circumstance involving discovery disputes).

Moreover, one of the principal purposes of civil discovery is to do away with the sporting theory of litigation, namely, surprise at trial and such purpose is accomplished by giving greater assistance to parties in ascertaining the truth. See Thoren v. Johnston and Washer, 29 Cal.App.3d 270, 274 (1972).

Judges have broad discretion in controlling course of discovery and making various decisions necessitated by discovery proceedings. Obregon v. Superior Court, 67 Cal.App.4th 424, 431-432 (1998).

Monetary discovery sanctions are mandatory. Argaman v. Ratan, 73 Cal.App.4th 1173, 1179 (1999); Frates v. Treder, 249 Cal.App.2d 199, 206 (1967) (refusal to answer interrogatories without substantial justification renders the refusal willful, thus giving rise to sanctions).

All costs associated with the motion to compel, including court costs and attorney fees are recoverable in filing a motion to compel.

Attorneys or parties to civil litigation in California who wish to purchase a motion to compel responses to requests for production of documents for use in a civil case can click below.

http://www.scribd.com/doc/62739653/Sample-Motion-to-Compel-Responses-to-Requests-for-Production-of-Documents

The author of this article, Stan Burman, is a freelance paralegal 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.

Subscribe to his weekly newsletter with legal tips and tricks for California.
http://TinyWebLink-001.com/?pid=6585639

 

Motion to compel responses to interrogatories in California

This blog post will discuss the issues involved in filing a motion to compel responses to special interrogatories in California civil litigation. Motions to compel can be a very useful tool in forcing the other party into providing full and complete responses to special interrogatories.  Note that the same rules apply to form interrogatories as well.

Under Code of Civil Procedure § 2030.290(b), if a party to whom interrogatories are directed fails to serve a response, the propounding party may move the court for an order compelling responses.

In California, unsworn responses to discovery are tantamount to no responses at all. See Appleton v. Superior Court 206 Cal.App.3d 632, 636 (1988) ; Zorro Investment Company v. Great Pacific Securities Corporation 69 Cal.App.3d 907, 914 (1977). So if the responses received are not verified then a motion to compel responses would be the proper motion.

Note that Section 2030.290 contains NO time limit for a motion to compel where no responses have been served. This only applies if NO responses are received, or if unverified responses are received.

All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. Leach v. Superior Court 111 Cal.App.3d 902, 905-906 (1980).

The moving party is also not required to show a “reasonable and good faith attempt” to resolve the matter informally with opposing counsel before filing the motion. Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants 148 Cal.App.4th 390, 404 (2007).

Further, the party to whom the interrogatories are directed waives any objection to the interrogatories, including objections based on privilege or the work product doctrine, unless the failure to serve a response was due to “mistake, inadvertence, or excusable neglect.” Code of Civil Procedure § 2030.290 (a).

Every court has the power to compel obedience to its judgments, orders, and process in an action or proceeding pending before and to use all necessary means to carry its jurisdiction into effect. Fairfield v. Superior Court, 246 Cal.App.2d 113, 120 (1966); Stewart v. Colonial Western Agency, Inc., 87 Cal.App.4th 1006, 1016 (2001) (judges have broad powers and responsibility to determine what measure and procedures are appropriate in varying circumstance involving discovery disputes).

Moreover, one of the principal purposes of civil discovery is to do away with the sporting theory of litigation, namely, surprise at trial and such purpose is accomplished by giving greater assistance to parties in ascertaining the truth. See Thoren v. Johnston and Washer, 29 Cal.App.3d 270, 274 (1972).

The principal objective of statutes relating to interrogatories is to provide a discovery procedure directed to an adverse party. Associates Discount Corp. v. Tobb Co., 241 Cal.App.2d 541, 551 (1966). Judges have broad discretion in controlling course of discovery and making various decisions necessitated by discovery proceedings. Obregon v. Superior Court, 67 Cal.App.4th 424, 431-432 (1998).

Monetary discovery sanctions are mandatory. Argaman v. Ratan, 73 Cal.App.4th 1173, 1179 (1999); Frates v. Treder, 249 Cal.App.2d 199, 206 (1967) (refusal to answer interrogatories without substantial justification renders the refusal willful, thus giving rise to sanctions).

All costs associated with the motion to compel, including court costs and attorney fees are recoverable in filing a motion to compel.

Attorneys or parties to civil litigation in California who wish to purchase a sample motion to compel responses to special interrogatories for use in a civil case can click below.

http://www.scribd.com/doc/62735395/Sample-Motion-to-Compel-Responses-to-Special-Interrogatories

The author of this article, Stan Burman, is a freelance paralegal 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.

Subscribe to his weekly newsletter with legal tips and tricks for California.
http://TinyWebLink-001.com/?pid=6585639

 

Motion for further bill of particulars in California

This blog post will discuss filing a motion for a further bill of particulars in California. Many times the response of a plaintiff to a demand for a bill of particulars is too general or is incomplete. Many assignees of credit card companies will respond by simply providing a statement showing the total amount alleged to be due without providing the details of each charge such as the date of purchase of the items set forth or the type of goods purchased. This type of response is clearly defective and the defendant should file a motion for a further bill of particulars on the grounds that a more specific bill of particulars is needed in order for them to prepare a defense.

Code of Civil Procedure § 454 states in pertinent part that, “It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one delivered is too general, or is defective in any particular.”

If the information furnished is deemed too general or incomplete, the defendant may make a noticed motion for a further bill of particulars. Burton v. Santa Barbara Nat’l Bank (1966) 247 Cal.App. 2d 427, 433.

If a defective response to a demand for bill of particulars is received, defendant should first send a letter to plaintiff requesting a more detailed response. If no further response is received then a motion can be filed.

If plaintiff fails to provide a further bill of particulars after being ordered by the court to do so, the court may bar plaintiff from introducing evidence at trial in support of the account claimed if the defendant makes a motion to preclude the introduction of evidence at the trial.

Attorneys or parties in the State of California who wish to view a portion of a sample motion for further bill of particulars sold by the author including a full memorandum of points and authorities and sample declaration can click below.

http://www.scribd.com/doc/62289322/Sample-Motion-for-Further-Bill-of-Particulars

The author of this article, Stan Burman, is a freelance paralegal 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.

Subscribe to his weekly newsletter with legal tips and tricks for California.
http://TinyWebLink-001.com/?pid=6585639

 

Credit card litigation defense strategy for California

There has been much publicity lately about the “produce the note” strategy in foreclosure litigation in the United States. However, the same issue is involved in credit card litigation. This blog post will briefly discuss a “produce the assignment” strategy for credit card litigation in California. The main issue discussed will be the issue of whether the collection agency or other assignee is the actual and proper assignee of the credit card company or other creditor, and thus has standing to sue. The author is currently working on a case in Orange County, California where Midland Funding, LLC is the Plaintiff, while they allege in the complaint that they are the assignee of a Chase credit card account and are suing for over $9,000.00, the defendant in the lawsuit received a settlement offer in June 2010 from another collection agency offering to settle the same Chase credit card account for just over $1,800.00.

This situation raises a very important issue in California, and presumably every other state in the United States. In California the plaintiff must be the “real party in interest” with respect to the claim sued upon. Except as otherwise provided by statute, “every action must be prosecuted in the name of the real party in interest.” See Code of Civil Procedure § 367; also see Dino v. Pelayo (2006) 145 Cal.App. 4th 347, 353, (citing text); and Cloud v. Northrop Grumman Corp. (1998) 67 Cal. App. 4th 995, 1004, (citing text).

The purpose of the real party in interest requirement is to assure that any judgment rendered will bar the owner of the claim sued upon from relitigating. “It is to save a defendant, against whom a judgment may be obtained, from further harassment or vexation at the hands of some other claimant to the same demand.” Giselman v. Starr (1895) 106 Cal. 651, 657; Cloud v. Northrop Grumman Corp. (1998) 67 Cal. App. 4th 995, 1003, (citing text).

Clearly if there are several alleged assignees attempting to collect on the same debt, at most only one of them is a valid assignee. And as shown previously, in California only a valid assignee can be the “real party in interest”. There cannot be more than one “real party in interest”.

And the issue of standing to sue is not waived by failing to raise it by either an answer or demurrer and can be raised at any time in a lawsuit, including for the first time on an appeal.

“Contentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the proceeding.” See Common Cause of Calif. v. Board of Supervisors (1989) 49 Cal. 3d 432, 438, lack of standing can be raised for first time on appeal, see Associated Builders & Contractors, Inc. v. San Francisco Airports Comm’n (1999) 21 Cal. 4th 352, 361.

If a plaintiff cannot prove they have standing to sue then the lawsuit must be dismissed. When a party lacks standing to sue, the action must be dismissed, unless the complaint can be amended by substituting a party who has standing. Cloud v. Northrop Grumman Corp. (1998) 67 Cal. App. 4th 995, 1004-1011.

Any party being sued by a collection agency or other assignee should seriously consider the “produce the assignment” strategy. If as is often the case, the credit card company has “assigned” the credit card account balance owing to several different collection agencies this may result in the lawsuit either being dismissed by the plaintiff if they cannot produce an actual assignment, or result in much more favorable settlement terms being offered.

The basic “produce the assignment” strategy in brief is as follows:

The answer to the complaint should include an affirmative defense that the plaintiff is not a valid assignee, and thus lacks standing to sue. However, if the answer has already been filed this is not critical because as previously mentioned, the issue of standing to sue can be raised at any time.

Special interrogatories and requests for production of documents should be used to force the alleged “assignee” to prove that they are in fact the “real party in interest”.

The author sells sample answers as well as special interrogatories and requests for production of documents that already contain the necessary information. Contact him by e-mail for more information.

The author of this article, Stan Burman, is a freelance paralegal 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.

Subscribe to his weekly newsletter with legal tips and tricks for California.
http://TinyWebLink-001.com/?pid=6585639

 

Ex-Parte Application to vacate a default judgment in unlawful detainer (eviction) for California

This blog post will discuss some of the issues involved in filing an ex-parte application to vacate a default and default judgment in an unlawful detainer (eviction or UD) proceeding in California. Due to the short time frames involved in an unlawful detainer, if the tenant is still living in the premises it is best to do an ex-parte application instead of a regular noticed motion. The ex-parte application must be heard by the Court before the scheduled lockout date.

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). In unlawful detainer proceedings, however, an ex parte applicant may give shorter notice “provided that the notice given is reasonable.” See California Rule of Court 3.1203. A declaration must be filed with the Court giving the details of when, and how notice was given to the opposing party.

Any motion to vacate would normally be made pursuant to California Code of Civil Procedure § 473 which states in pertinent part that: “The Court may, upon any terms as may be just, relieve a party, or his or her legal representative from a judgment, dismissal, order or other proceeding, taken against him or her through his or her mistake, inadvertance, surprise or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

In order to qualify for relief from default and/or judgment under Section 473 the moving party must show that they: (1) timely moved the Court for relief from default, (2) make a sufficient showing of mistake, inadvertance, surprise or excusable neglect, (3) and provide a copy of their proposed pleading along with their motion. Only then have they met all of the statutory conditions necessary for the Court to set aside the default and/or judgment entered against them.

A copy of the proposed Answer should be attached as an Exhibit to the declaration of the tenant, the declaration should include the details on why the tenant did not file a timely answer to the complaint, in other words they should make a showing of mistake, inadvertance, surprise or excusable neglect.

Attorneys or parties in the State of California who wish to purchase a sample ex-parte application to vacate a default and unlawful detainer judgment can click below.

http://www.scribd.com/doc/60997398/Sample-Ex-Parte-Application-to-Vacate-Judgment-for-California

The author of this article, Stan Burman, is a freelance paralegal 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.

Subscribe to his weekly newsletter with legal tips and tricks for California.
http://TinyWebLink-001.com/?pid=6585639