The day after a responsive pleading was due, plaintiff’s lawyer sent defendant a letter and an email telling her that the time to respond was past due and threatening entry of default if a responsive pleading was not filed by the next business day. When a pleading was not filed by 3:00 p.m. the next business day, plaintiff’s counsel filed a request for entry of default. Defendant quickly hired a lawyer who filed a motion to set aside the default pursuant to Code of Civil Procedure § 473, subdivision (b). The trial court denied defendant’s motion to set aside the default, despite a fact-filled declaration describing how defendant had been up to her neck taking care of urgent personal circumstances. The Court of Appeal reversed and quoted from Code of Civil Procedure § 583.130 that “. . . all parties shall cooperate in bringing the action to trial or other disposition,” and concluded: “Attorneys who do not do so are practicing in contravention of the policy of the state and menacing the future of the profession.” (LaSalle v. Vogel (Cal. App. 4th Dist., Div. 3, June 11, 2019) 36 Cal.App.5th 127.)
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Fraudulent Conveyance Damages Apply to DELAY’S in paying a judgment! (Berger v. Varum (2019) 35 Cal.App.5th 1013)
Plaintiff sued for fraudulent transfer. Defendants then paid the judgment, but instead of dismissing his complaint, plaintiff amended it to seek damages caused by the delay in paying the judgment. The trial court sustained defendants’ demurrer. On appeal, plaintiff argued his amended complaint asserted a common law fraudulent transfer claim, which gives rise to
Late Fees in a 3 day Notice Are almost always unenforceable (Excellent analysis by the Court)
The primary published case is Del Monte Properties & Investments, Inc. v. Dolan (2018) 26 Cal.App.5th Supp. 20, 24. In Del Monte the Court held that the landlord must prove that the actual losses caused by late payment of rent were extremely difficult or impracticable to determine. Moreover, an agreement to the term setting
Default Judgments (including for accounting and related damages) remain limited to what is set forth in the pleading (Sass v. Cohen (2019) 32 Cal.App.5th 1032.)
Due process prevails. A common mistake is pleading damages (other than as limited in Family/PI/wrongful death cases) according to proof without providing the defendant with a number of possible damages. The result is a default but no money to the plaintiff. The law states a default judgment cannot exceed the type and amount of relief
Amended Complaint Must be Filed 9 Court Days Before the Demurrer hearing (CCP §472)
The trial court research attorneys s are now happier! No longer can an amended pleading be filed the morning before the demurrer hearing! As of 2018, amended Code of Civil Procedure §472 now provides:
(a) A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or
Professionalism Trumps Freedom of speech in the court room (which is a good thing) Bus. Code §6068(b)
The moral fiber of our society continues to degrade. The following is an attorney ethics issue and as a reminder attorney’s are held to a higher standard.
After a trial on a sexual harassment claim resulting in an $8,080 jury verdict, and a $7,000 costs award, Plaintiff’s counsel was upset he was not awarded the
What happens in Vegas, stays in Vegas even, if it caused conception!
Intimate Sexual Contact Alone Does Not Constitute Minimum Contacts. A California woman conceived a child in Connecticut but filed a paternity and child support suit in California against the father living in Connecticut. The trial court denied his man moved to quash service of summons based on lack of personal jurisdiction. The Court of Appeal reversed, holding the man’s knowledge that the mother resided in California and the foreseeability that unprotected sex may lead to birth of a child were insufficient to establish the requisite minimum contacts. The appellate court explained that jurisdiction must be based upon facts showing a “substantial connection” to California following Walden v. Fiore (2014) 571 U.S. 277, 289. (David L. v. Superior Court (Cal. App. 4th Dist., Div. 1, Nov. 26, 2018) 2018 Cal. App. LEXIS 1067.) The father seems to regularly travel to California on business trips, and he and the woman had sex on those trips including a prior pregnancy. However, the Court dismissed these as insufficient contacts for the paternity issue. For more salacious details, which may have influenced the Court, look here …
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61% of the time Trial Verdicts Are Usually the Same as a Pre-Trial Settlement Offers
In an article by Sanford Gage, who is a very good mediator, 9,000 California settlement decisions were analyzed over 41 years comparing rejected pretrial settlement offers and actual trial results. Sixty-one percent of the time, the plaintiffs obtained an award that was the same or worse than the result the plaintiff would have achieved by
GAO Study Shows Federal Court Plaintiffs Only Win 35% Of The Time!
In law school you are taught “if you are a defendant remove the case to the Federal Court”. University of Connecticut law professors Alexandra Lahav and Peter Siegelman studied 30 years of data from the Administrative Office of the U.S. Courts supporting that directive. According to the law profs, the winning rate for plaintiffs in
California will now allow out-of-state and foreign lawyers to provide legal services in international commercial arbitrations conducted in California SB 766. (CCP § 1297.185)
The new CCP §1297.185 essentially over rules the 1998 California Supreme Court case known as Birbower holding that lawyers from foreign nations could not