Powered by Avvo.com

What must a motion to amend a complaint contain ?: I'm confused because from reading California Rule 3.1324 explains what it should contain and along with it a supporting declaration. It does not state that it needs memorandum of points and authorities. Am I
reading this incorrectly and it does need it or is it optional ? The first complaint was already answered but I need to amend it to make correction so its a second amended complaint.

Asked 5 days ago in Litigation

Frank’s answer: A motion for leave to amend (or further amend) must include a memorandum of points and authorities, as with most motions. See CRC Rule 3.1113(a). The exceptions are set forth in CRC Rule 3.1114. CRC Rule 3.1113(a) provides "(a) Memorandum in support of motion. A party filing a motion, except for a motion listed in rule 3.1114, must serve and file a supporting memorandum. The court may construe the absence of a memorandum as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported."

With respect to motions for leave to amend, the moving party must comply with all of the requirements set forth in CRC Rule 3.1324.

Answered 5 days ago.


Can I as a defendant oppose a Motion 4 Summ. Judg. 2 days b4 hearing IF new information is made available to me today??: The plaintiff filed a MSJ claiming the property boundaries between us were mapped in error and in her favor. She presented previous records from city and county engineers, map makers etc but now I find out from the land surveyor I hired this is in dispute. Is it too late to oppose her motion?

Asked 8 days ago in Litigation

Frank’s answer: A written opposition is normally due 14 days before the MSJ hearing, pursuant to CA Code of Civil Procedure section 437c(b)(2). However, the court in its discretion can consider a late opposition. Your post did not indicate whether you filed any opposition at all. Your chances to defeat the MSJ would be better if you filed an initial (timely) opposition and then filed a supplemental opposition. In any event, a late filed opposition to the summary judgment motion would still be better than no opposition at all.

Answered 8 days ago.


Can the party that wishes to sell force the other party to sell?: This is an unmarried couple that has owned a home as Joint tenants with right of survivorship for 8 years in Temecula and 1 of them wishes to sell but the other does not ?

Asked 14 days ago in Real Estate

Frank’s answer: Yes. The party who desires to sell can file a lawsuit in the state superior court for "partition and sale". A lawsuit for "partition and sale" is a court procedure by which a judge will order the property sold and the proceeds distributed amongst the co-owners on title. Upon granting judgment partitioning by sale of the 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.

Note that a partition action does not necessarily mean the property needs to be sold to a third party. One of the co-owners could end up buying out the other co-owner and become the sole owner.

Answered 14 days ago.