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
in per ask the court he be called to testify as as witness to what he declared?
Generally speaking, yes. An attorney can be called to testify as a witness, but subject to limitations such as the attorney-client privilege. Also, if this is a jury trial, subject to the limitations of California Rules of Professional Conduct Rule 5-210, which provides in part:
"(A) The testimony relates to an uncontested matter; or
(B) The testimony relates to the nature and value of legal services rendered in the case; or
(C) The member has the informed, written consent of the client. "
From the little research I've done, it seems that I don't have to exhaust any remedies or even discuss with the wrong doer, and that I can file a lawsuit for an ADA claim right away. Is that correct?
It is unclear from your post whether your ADA claim arises from an employment context or from a construction-related accessibility context. In the employment context, you will need to file a claim with either the Equal Employment Opportunity Commission (EEOC), which enforces Title VII and the ADA (42 USC §§2000e-5, 12117(a)), or the Department of Fair Employment and Housing (DFEH), which enforces the FEHA. However, in construction-related accessibility litigation, there is no such requirement. Title III of the ADA does not have any requirement to exhaust administrative remedies or to provide notice before filing a lawsuit in federal court.See question
What do I do if opponent only answered part of Form Interrogatories propounded by me?
The Code of Civil Procedure requires you to first "meet and confer" with the responding party to see if you can obtain full and complete responses. After you have exhausted all efforts to meet and confer, your remedy would be to file a motion to compel further responses to form interrogatories. Note that a "separate statement” is required to be concurrently filed under Rule 3.1345 of the California Rules of Court. The separate statement must articulate reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (See California Rules of Court, Rule 3.1345(c). You have 50 days (an extra 5 days) to file a motion to compel further responses if the form interrogatory responses were served by mail.See question
The statute I am allowed relief under for a hearing and court order allows me to proceed under it. This being so, would asking for injunctive relief be necessary for other causes of action in my complaint not covered or should I just limit the req...
No. Generally speaking, a plaintiff has the right to elect remedies. However, the better practice is to seek all available remedies in the allegations of the complaint, and to make the election of remedies later.See question
I signed an agreement to get my $ back on an investment on March 9 2014 for an investment of 20 thousand on my part and have only received $4,000 s far. What are my chances of fighting this in court
Assuming the handwritten document is sufficient to constitute a written contract, the statute of limitations in California for breach of written contract is four years from breach or date of last payment, whichever is later. No one can really assess the viability of your claim without examining the handwritten document. Moreover, there might be a serious legal issue as to whether your $20,000 was a "loan" or an "investment". Generally speaking, while there might be an obligation to repay a loan, there is not necessarily an obligation to pay a guaranteed return on investment (wherein money is put at risk in exchange for a higher return).See question
A 30 days notice was posted on my door on 9/10/16, as of today I don't have the mailing copy. According to Califirnia code secition 1162 service is not complete until mailing copy is placed in the mail. I don't have much tin left.
No, you are correct that service of the notice that was only posted is invalid. As such, you may have a viable defense in an unlawful detainer action. However, generally speaking, it would be better without any unlawful detainer action being filed, since this could be detrimental to your prospects of finding rental housing in the near future. You are better off pointing out the defective service, and agreeing to move out on a date certain.
A landlord may serve a 30-day or 60-day notice by certified mail or by one of the methods described under Code of Civil Procedure section 1162, which provides:
"(a) Except as provided in subdivision (b), the notices
required by Sections 1161 and 1161a may be served by any of the
(1) By delivering a copy to the tenant personally.
(2) If he or she is absent from his or her place of residence, and
from his or her usual place of business, by leaving a copy with some
person of suitable age and discretion at either place, and sending a
copy through the mail addressed to the tenant at his or her place of
(3) If such place of residence and business cannot be ascertained,
or a person of suitable age or discretion there can not be found,
then by affixing a copy in a conspicuous place on the property, and
also delivering a copy to a person there residing, if such person can
be found; and also sending a copy through the mail addressed to the
tenant at the place where the property is situated. Service upon a
subtenant may be made in the same manner."
My landlord has given me 60 day notice to move on the grounds that he is renovating the property to sell. However, there are three other units in my building and he has already begun work on one of them without having the tenant move. I have been ...
No, unless the rental dwelling is subject to the Los Angeles Rent Stabilization Ordinance, you would not be entitled to relocation assistance. Since your building is not located within the City of Los Angeles, the Los Angeles Municipal Code does not apply.
Generally speaking, a 60 day written notice to terminate a month to month tenancy does not need to provide a reason for the termination.See question
I am faced with poorly drafted complaint from pro se person. I know that what they wanted to plead was possibly breach of contract. However the complaint does not designate any cause of action and does not plead facts to state claim for breach of ...
A complaint does not necessarily need to specifically label a cause of action in order to state facts sufficient to constitute a cause of action. The court determines whether there is any viable claim, regardless of the title under which the factual basis for relief is stated. (Burns v. Neiman Marcus Group, Inc. (2009) 173 Cal.App.4th 479, 486.) A demurrer for uncertainty cannot be filed if this is a limited jurisdiction case. Also, a demurrer based upon uncertainty isn't going to knock out the claim.
Regardless, if you plan to file a demurrer, keep in mind that California law now requires you to meet and confer with the plaintiff beforehand. See:
Is the statute of limitations for property damage in California still 3 years?
Yes, in California, the statute of limitations for property damage is three years from the date the damage occurred. See California Code of Civil Procedure section 338.See question