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Lenden Franklin Webb

Lenden Webb’s Answers

10 total

  • Filing amended complaint to add cause of action:

    I already filed complaint, defendants filed demurrer and answer, and trial has just been recently set about a week ago. Is it possible to Ask court for leave to amend to add another cause of action? The statue of limitation for this cause of actio...

    Lenden’s Answer

    • Selected as best answer

    Leave to amend is freely granted, and, absent a strong showing of prejudice, leave to amend must be granted. Here are standard cases about this issue: “A party may amend its pleading only with the opposing party’s written consent or the court’s leave. The Court should freely give leave when justice so requires.” (Fed. R. Civ. Proc. 15(a)(2).) Rule 15(a) “embodies the liberal pleading philosophy of the federal rules” in order to ensure that claims will be decided on the merits. (Adams v. Gould, 739 F.2d 858 (3d Cir. 1984); Dole v. Arco Chemical Co., 921 F.2d 484 (3rd Cir. 1990).)
    “[U]nless a substantial reason exists to deny leave to amend, the discretion of the district court is not broad enough to permit denial.” (Shipner v. Eastern Airlines, Inc. 868 F.2d 401 (11th Cir. 1999).) Although the decision of whether to grant leave to amend is committed to the sound discretion of the court, (Best Canvas Products & Supplies, Inc. v. Ploof Truck Lines, Inc. 713 F.2d 618 (1th Cir. 1993), the term “discretion” may be a misleading term, for rule 15(a). “[d]iscretion may be a misleading term, for rule 15(a) severely restricts the judge’s freedom, directing that leave to amend ‘shall be freely given when justice so requires.” (Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594 (5th Cir. 1991)) “this policy of Rule 15(a) in liberally permitting amendments to facilitate determination of claims on the merits circumscribes the exercise of the trial court’s discretion; thus ‘unless there is a substantial reason to deny leave to amend, the discretion of the district court is not broad enough to permit denial’.” (Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594 (5th Cir. 1991); Espey v. Wainwright, 734 F.2d 748 (11th Cir. 1994).) “The grant or denial of an opportunity to amend is within the discretion of the District Court, . . . outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion, it is merely an abuse of that discretion and inconsistent with the spirit of the Federal Rules.” (Foman v. Davis, 371 U.S. 178 (1962).)

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  • When to file a Motion for Judgment on the Pleadings?

    My case is nearing the end stages of discovery. I was served with an answer in December 2012 and the defenses were not properly pleaded. I didn't realize this until recently. I think I missed the window on this unfortunately, but is it too late...

    Lenden’s Answer

    Generally 30 days before trial, but there are a host of exceptions and rules. Since you appear to be the Plaintiff, you want to pay special attention to CCP 438 which dictates that this may be filed at different times and circumstances and is very factually dependent. Our office has brought this on the eve of trial as a defendant, which is not common unless you have a court that cannot give you a MSJ date because they are too impacted and their calendar doesn't permit. There are a multitude of issues and I encourage you to seek professional assistance before moving forward.

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  • Is there a defense you can raise to a plaintiff who is aware of your conduct over long periods of time?

    I have been sued by an ex business associate. He says I defrauded him. He gave me a business loan which he put into an account for me. The account he placed the money belonged to him as well and he gave me a password to access it. I used the m...

    Lenden’s Answer

    There many be many defenses related to a delay in prosecuting a claim: Laches, Statute of Limitations, Detrimental Reliance, Accord & Satisfaction, Fraud in the inducement… however, your facts only give rise to a few of those and I would suggest that you meet with a business litigation attorney to get the best answer possible and go over all the details and documents surrounding your lawsuit.

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  • How do you deal with tampering with a witness?

    I suspect that the defendant will pay off a witness to say something that is not true. There is not much I can do about that. I think if I cry foul, proof is going to be requested and I don't have it. The good thing is that the defendant has...

    Lenden’s Answer

    Testimony at a deposition is under oath, under penalty of perjury. Jurors can smell lies from 10 blocks away, and we have seen jurors shift uncomfortably when they see someone lying on the stand. They know a lie and can see through compromised positions. A good attorney will help showcase this deception and give the jury the means to punish the liar.

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  • Default judgment for damage amount yet determined?

    P sued D1, D2, D3 on contract issue for fraud, breach contract, and unfair competition. In complaint, damages of dollar amount is to be determined by jury or court. After 30 days of personal services to all defendants and now, D1 filed demur, D2 f...

    Lenden’s Answer

    I agree with the prior answer, with a twist:

    First, I agree that the matter against P2 cannot proceed until the Motion to Quash is resolved. Once that is answered, a Judge will typically grant 10 days for P2 to file a "responsive pleading" (answer or other pleading) or the Judge may say that the Defendant needs to be properly served. (NOTE: Some Judges are annoyed at these motions

    Second, while you may enter the default against D3, you will NOT get a money judgment unless you pled a dollar amount certain in your complaint.

    Let me explain: I have seen arguments that since the lawsuit was filed as an "Unlimited Jurisdiction" lawsuit, that a judgment for $25,000 (the minimum) is proper, and I have personally argued that a default judgment I inherited from a former attorney would be proper for a sum certain found in an exhibit to the complaint, this causes most judges concern. In sum, plead a dollar amount certain in your complaint, or get a Statement of Damages served on your defendant (CCP 425.11) in the same manner as service of summons, then wait your 30 days before asking for an entry of default and going to get your judgment.

    As always, consider hiring a local professional and know there are strict time deadlines, local rules and "local local" that can change the landscape of any lawsuit. Facts and circumstances can (and often do) alter the above-listed information.

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  • I have a balance of 26.41 vacation hours; maybe more and I just got laid off. Doesn't my previous employer have to pay this ?

    I read an article that said California employers must pay you the balance of your vacation time . Isn't it the law ? Please advise what law it is ? Thank you / Lorie L Hale 619 - 248 - 1235 , loriethale @ gmail . com

    Lenden’s Answer

    Any accrued vacation time must be paid out at the time of termination or within 72 hours if the employee gives advance notice he or she will no longer be working for the employer. The employer's failure to timely pay any accrued vacation time could subject the employer to penalties equal to one days wage for a total of 30 days. Attorney's fees are also available. See California Labor Code Sections 201, 227.3, and 203. Feel free to contact our office if you have any further questions. 559-431-4888 or 619-399-7700

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  • Can i sue a company if i am denied my raises after a wrongful termination

    i got terminated at work because of poor management and i got rehired as a new hire and i lost my two year of raise i gained

    Lenden’s Answer

    You may have unique facts not listed above which would change the answers above, but I concur with the answers above.

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  • Should I give Travelers Companies, Inc Attorney Inc. a extension of time to file their answer to my lawsuit?

    I sued The Travelers Companies, Inc. The lawsuit was served in the mail on 10/01/12. Default was 2 days from bing filed by me in the superior court. The Attorney for the insurance company called me on 10/30/12 asking me for a extension for 30 day...

    Lenden’s Answer

    Fully agreed with other counsel here. In fact, the California Code virtually mandates that a judge shall give a 15-day extension of time to file an Answer or Responsive Pleading if asked. (Cal. Gov. Code 68616 and CCP 1054 allows up to 30 days) Any resistance is not only discourteous and risks future animosity (which does not engender healthy settlement discussions) but risks the displeasure of the court for the trouble of having a motion for more time on their (already busy) calendar. Save your bullets for a later fight and feel free to call our office if you have any questions. (619) 399-7700

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  • Need more time to prepare for my cross complaint. Court is scheduled on October 31,2012, tomorrow...can I get an continuance ?

    I recently moved and My paperwork has not been prepared for court and I have not filed my cross complaint yet... I need more time. What can I do? Court is tomorrow.

    Lenden’s Answer

    Depending on the nature of your hearing, there may be rights and obligations that arise which could reduce the chance of the court (granting a motion for leave to file a cross-complaint) or the opposing counsel agreeing to a stipulation for leave to file the cross-complaint. However, you may not need either of these if your time limits for filing the cross-complaint haven't expired... I fully understand that these are not an exact answers, but exact answers are a just 1 lawyer away...

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  • Will an Action to Quiet Title stop the foreclosure and is it it the correct step that I need to take?

    I have been trying unsuccessfully to find a lawyer to file a wrongful foreclosure lawsuit on my behalf and will probably be filing in pro per soon. My loan was modified and the first payment due 11/1/08. In August of 2009 the FBI shut down the ...

    Lenden’s Answer

    We have handled many of these lawsuits, and the issues are fraught with concerns for both the homeowner and the lenders. Before our office can assist you, there are a few fundamental questions:

    1) Do you own your home? (I assume from your description above title is in your name alone)
    2) Did you enter into a Written Loan Modification Agreement, or have some other written agreement, (your loan modification papers described above would be a solid start)
    3) You performed & Paid As Agreement Listed,
    4) Bank *STILL* broke agreement, and
    5) Have enough money to bring loan current

    Not all these questions are dispositive, but they can help us guide you to the best plan of action. Please contact our office to set an appointment. 559-431-4888

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