I filed a cross-complaint bringing in a new party, however, forgot to include the Summons. The court filed the cross-complaint (without the Summons). Will the court allow submission of the Summons by itself for filing or will I need to re-submit...
You would prepare a summons on cross-complaint and have the clerk issue such summons. You should not (and do not need to) refile the cross-complaint.See question
We filed our Complaint in Superior Court in California. The Defendants sent a timely meet and confer letter under Code of Civil Procedure 430.41. We responded to the letter and did not agree on the issues raised. Defendants filed their declaratio...
The new law does not specify what consequences are associated with the failure to meet and confer (or untimely meet and confer), except to state that any finding that the meet-and-confer process was insufficient "shall not be grounds to overrule or sustain a demurrer." [Code Civ. Proc., 430.41(a)(4)]. As such, you should focus on challenging the merits of the anticipated demurrer to your first amended complaint in your written opposition to the demurrer.See question
I was wondering what would happen and how would you get it back. Would it include the district attorney?
You could file a civil lawsuit for "quiet title" to restore title back to you. A quiet title action is used when a person claims legal ownership to real property, or wishes to remove unauthorized or improper liens clouding the title. Alternatively, or in addition, you could report the crime to the District Attorney's office. The DA's office could file charges for Penal Code §115(A) [recording a fraudulent document], Penal Code §470(A) [forgery], and/or Penal Code § 530.5(A) [identity theft]. If a criminal action is filed, you might get title back as restitution. Assembly Bill 1698 which amended California Penal Code section 115, effective September 14, 2014, allows the DA to file an expedited motion in the criminal case to obtain an order declaring the false or forged document to be void ab initio without the requirement of a civil quiet title judgment.See question
I need an explanation or example of what the CA Civil Code 1542 mean. It states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which i...
Most likely, the settlement agreement will contain a WAIVER of California Civil Code section 1542 (which means just the opposite of what California law provides). A waiver requires the knowing and intelligent relinquishment of a right. In other words, when you waive a right, you no longer have certain protections.
The normal rule is that a release is binding on the parties as to an injury known at the time a settlement is made, even if unknown or unexpected consequences result therefrom, but if the injury is unknown, and the parties purport to settle for all injuries sustained, then the release will not be held to be binding on the parties as to such unknown injury. (Cohn v. Bugas (1974) 42 Cal.App.3d 381.)
Section 1542 basically provides that a general release does not cover injuries which the signer of the release does not know about at the time of signing. However, a WAIVER of Civil Code section 1542 means that in agreeing to settle the case, you are also giving up all claims whether the injuries are known or unknown to you at the time of signing. It is very common for a settlement agreement in a personal injury/auto accident lawsuit to contain a waiver of CA Civil Code section 1542.See question
My dad passed away and added me to his house with his wife
Yes, if you hold title to the house as a co-owner (whether as a joint tenant or as a tenant in common), you can force the sale through a lawsuit called a "partition and sale" action. Upon granting judgment partitioning by sale of each property, the court will order that the proceeds of the sale pay the encumbrances thereon, and the net proceeds thereof then be divided between the parties in an equitable amount to be determined by the court, in addition to allowance, accounting, contribution, or other compensatory adjustment among the parties according to principles of equity, pursuant to California Code of Civil Procedure section 872.140. In such a partition action, each party will need to present evidence of why the court ought to distribute the proceeds differently than the ownership percentages.See question
Will filing a small claims action and dismissing it before the trial date be posted on my permanent record? Or will it only be applied to my record if I go to court and receive any judgement? For example, will employers or other agencies be abl...
Once you file a small claims court lawsuit, it become a matter of public record (even if you voluntarily dismiss the case). In the Los Angeles Superior Court, it is possible to search the civil index (party name search) to ascertain whether you have been a party to any lawsuit, whether as a plaintiff or a defendant. See:
I've been told it is appealable. Filed my notice of appeal with my case information management statement I included the Order from the Court sustaining the demurrer. There is no other judgement or order dismissing the case filed by either party....
Correct. If the court sustained the defendant's demurrer without leave to amend, there needs to be a Judgment of Dismissal. You can only appeal a judgment, not an order, so your notice of appeal is probably premature.See question
I have a judge assigned to the case, I haven't served the parties yet so there has been no answer. I am doing my research and I am coming to find this judge may have a conflict of interest. Is the affidavit of prejudice the right way to go - I b...
If the judge is aware of an obvious actual conflict of interest, the judge may likely recuse himself or herself once you advise the courtroom clerk of the case assignment and actual conflict of interest. Otherwise, you will need to file a timely preemptory challenge form (CCP 170.6). Your deadline to challenge the judge for bias is ten days from when the judge is assigned to the case.See question
If the lawyer is ony associate acounsle does this mean the motion to withdraw as counselfl must be
No, in California state court, if the associated counsel came into the case by filing a Notice of Association of Counsel, the same associated counsel can file and serve a Notice of Dissassociation of Counsel without the necessity to file a formal noticed Motion to Be Relieved as Counsel.See question
The defendant in my case filed a motion under 473. The motion was filed 359 days after the judgment was entered. Is there any case law that supports a 473 motion brought after the six month time limit clearly stated in the statute? Can I ...
No, you cannot file a demurrer in response to a CCP 473 motion. The proper response is to file a written opposition to the motion at least nine court days before the hearing. What is the basis for setting aside the default and vacating the default judgment? If the judgment which was entered was "void" as opposed to voidable, there is no time limit to file the CCP 473 motion. Under CCP 473(d), a void judgment can be set aside at any time. A judgment may be void in fact if the judgment appears to be properly entered in the court file, but evidence shows that the judgment was improperly entered, such as if a defendant establishes that the summons was never served. However, substantial compliance with the service of summons statute may be sufficient to defeat a motion under CCP 473(d).
Also, it is possible the court will construe the motion as being brought pursuant to CCP 473.5(a). If service of the summons is proper, but it does not result in actual notice of the lawsuit to the defendant, the motion to set aside must be filed within a reasonable period of time not exceeding two years within the date judgment was entered.See question