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Herb Fox

Herb Fox’s Answers

1,885 total


  • Judge did not address matter taken under submission. What can I do now?

    The judge took the matter under submission and rendered his decision. However, he did not address at all one of the matters taken under submission. I am not trying to argue or object his decision but I need to have that matter addressed. What are ...

    Herb’s Answer

    Whether you can or should file a Motion for Reconsideration (I am assuming this was an ex parte motion for an order, and not the final decision on the entire case), depends in part on what was omitted from the decision. That you think an issue is material or dispositive, or for some other reason needed to be resolved, does not mean that the judge thought so. But it is impossible to tell without more context and information.

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  • How would ex force me to pay her attorney fees?

    New situation that I thought we could resolve without attorneys. Simple procedure. Since nothing is simple with him, he turned it over to his attorney and I have yet to hear from him other than stating I will have to pay his attorney fees. How ...

    Herb’s Answer

    If I understand your question, you are correct: you will only be required to pay your ex's attorneys fees if his attorney asks for such an order, and the court grants the request. You will have the right to advance notice and to oppose the request. There are various reasons for awarding attorneys fees in family law cases (based on relative need of the parties, or as sanctions for frustrating settlement, taking unreasonable positions, etc.).

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  • How can I get this done; a motion to dismiss or strike a "memorandum of costs".

    How can I get this done; a motion to dismiss or strike a "memorandum of costs". I'm in my late seventies and I my attorney has been so incompetent on this personal injury case! He won't even file this. I know in general practice attorneys don't ...

    Herb’s Answer

    The technical term for what you seek is a Motion to Tax Costs and/or Strike the Memorandum of Costs. You only have 10 or 15 days after the service of a Memorandum of Costs to file this Motion.
    In many cases, such a Motion is not warranted because the prevailing party has a statutory right to be awarded certain types of expenses, and often there is nothing or little to oppose or fight over. In other situations, the Cost Memo seeks much more than should be awarded and a Motion to Tax/Strike is necessary.
    So it may be that your attorney is right. But if you want a second opinion, you have the complete right to consult with another attorney of your choosing. But do it soon, because there is little time.

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  • In LA Superior Court, are there any local rules related to preserving issues for appeal, or in the California rules of court?

    I am seeking to intervene in an unlimited civil case in LA Superior. If I lose I will want to appeal. I read somewhere that there could be local rules about preserving issues for appeal. I looked at the local rules and in the Chapter 9 Appellate...

    Herb’s Answer

    There are no formal "rules of court" for preserving issues. There are instead numerous statutes and literally thousands of appellate court opinions dealing with the subject, as well as chapters in appellate law treatises and scores if not hundreds of law review and lawyer trade publication articles.
    In short, preserving issues for appeal is a broad subject that takes years to master, if it can be mastered at all (even the most experienced trial lawyers will sometimes miss an opportunity.)
    Kudos to you for having the right instincts, but this is one of those "don't try this at home" situations.

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  • If i motion for a consolidation from a UD to a wrongful foreclosure complaint and get denied from the judge can i appeal?

    And after i appeal can i motion to set aside or stay the proceedings, and If the trial court denies my motion, can I motion to the appeals court to stay the proceeding while pending judgement? will this work to halt the loss of possession of my...

    Herb’s Answer

    An order denying a motion to consolidate is not appealable. You would instead have to attack the order by way of a Petition for Writ of Mandate, which is very, very difficult to win. Most writ petitions are quickly denied (within a couple of weeks or even a couple of days) without a reason given. There is no automatic stay, in any event. You would first need to ask the trial court to stay the proceedings pending the writ petition, and if denied, then ask the Court of Appeal for the stay. Such requests are rarely successful.

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  • If i loose my demurrer and am given another 5 days to answer the Ud can i appeal the demurrer and stay the proceedings?

    do i need to still answer the UD even if I appeal the decision on the demurrer ? If so could i answer with a consolidation from my wrongful foreclosure complaint? and completly circumvent the answer.

    Herb’s Answer

    An order overruling a demurrer cannot be appealed. You can try, but it will have no effect on the proceedings, and it will be dismissed by the appellate division. As for the relationship between the ud and a wrongful foreclosure lawsuit, you should consult with your attorney. If you don't have one, I recommend that you get one. Wrongful foreclosure lawsuits are very, very difficult to win, even if you have an attorney. They are even more difficult to win without one.

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  • Malicious Prosecution, Cross-Complaint, Standing: In what scenarios might a sole defendant in a civil case not have ...

    standing to file a compulsory cross complaint? HOA sued me. I filed compulsory crx-cmplnt. HOA filed MSJ/.MSA arguing I had no standing to sue back because architectural modifications about which they sued were installed by previous owner. MSJ/MSA...

    Herb’s Answer

    The answer to your specific question cannot be answered in the abstract; you should consult with an attorney who can review the pleadings and evidence in the case that you won.
    I write, however, to strongly advise that you proceed with caution, because a malicious prosecution case will expose you to something called an anti-SLAPP motion that could expose you an order requiring you to pay the HOA's attorneys fees if you lose that motion. Still more reason to consult with an attorney before you proceed further.

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  • What's the deadline to appeal a ruling from a Motion to Vacate Default Judgment under CCP 473(b) in California? 15 or 30 days?

    What's the deadline to appeal a ruling from a Motion to Vacate Default Judgment under CCP 473(b) in California? 15 or 30 days?

    Herb’s Answer

    The deadline for filing a Notice of Appeal can range from 30 to 180 days, depending on what court you are in and a number of other circumstances. No attorney can answer your question with specificity without knowing more about the nature of the case.
    The next most important issue after ascertaining your deadline, is whether your appeal can succeed. An appeal is usually not a "rehearing" on the merits of your motion to vacate. The appeal is governed by a different set of standards. I recommend that you consult with an appellate specialist to determine whether your appeal has merit and whether its cost makes sense in light of the size of the judgment, etc. Please also be aware that an appeal normally does not, alone, suspend the plaintiff's right to enforce the judgment; you will need to take other steps, which an appellate attorney can explain.

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  • Is the trial brief with exhibits that I filed in my divorce included as pat of the clerk's transcript on appeal?

    My reading indicates that it is. Thank you.

    Herb’s Answer

    Exhibits that are attached to a trial brief will not be considered as evidence in an appeal from a trial proceeding, unless those exhibits were offered into evidence during the trial. Nor is the trial brief itself evidence of any facts; in an appeal, it merely helps establish what issues were raised and argued at trial.

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