90-day notice to quit in California

A 90-day notice to quit in California is the topic of this blog post.

A 90-day notice to quit in California is generally served in an eviction after foreclosure by a new owner that has purchased a property in foreclosure where the tenant or subtenants have a month-to-month lease or periodic tenancy. A 90-day notice to quit in California is also known as a 90-day notice to vacate.

When a 90-day notice to quit in California must be served.

A 90-day notice to quit in California is required by Code of Civil Procedure section 1161b(a) which states in pertinent part that,

“Notwithstanding Section 1161a, a tenant or subtenant in possession of a rental housing unit under a month-to-month lease or periodic tenancy at the time the property is sold in foreclosure shall be given 90 days’ written notice to quit pursuant to Section 1162 before the tenant or subtenant may be removed from the property as prescribed in this chapter.”

A 90-day notice to quit in California can also be served in situations as specified in Code of Civil Procedure section 1161b(b) which states that,

In addition to the rights set forth in subdivision (a), tenants or subtenants holding possession of a rental housing unit under a fixed-term residential lease entered into before transfer of title at the foreclosure sale shall have the right to possession until the end of the lease term, and all rights and obligations under the lease shall survive foreclosure, except that the tenancy may be terminated upon 90 days’ written notice to quit pursuant to subdivision (a) if any of the following conditions apply:

(1) The purchaser or successor in interest will occupy the housing unit as a primary residence.

(2) The lessee is the mortgagor or the child, spouse, or parent of the mortgagor.

(3) The lease was not the result of an arms’ length transaction.

(4) The lease requires the receipt of rent that is substantially less than fair market rent for the property, except when rent is reduced or subsidized due to a federal, state, or local subsidy or law.

(c) The purchaser or successor in interest shall bear the burden of proof in establishing that a fixed-term residential lease is not entitled to protection under subdivision (b).”

Service requirements for 90-day notice to quit in California.

I want to stress that the 90-day notice to quit in California must be served in strict compliance with the provisions of Code of Civil Procedure section 1162 which states that,

“(a) Except as provided in subdivision (b), the notices required by Sections 1161 and 1161a may be served by any of the following methods:

(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 residence.

(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.”

I also want to point out that if the new owner fails to serve a 90-day notice to quit in California in accordance with Code of Civil Procedure section 1162 that the tenant can use the issue of defective serve of the notice as an affirmative defense in their answer to the eviction complaint.

Sample answer to eviction complaint including the affirmative defense of defective service of a 90-day notice to quit in California.

Attorneys or parties in California that would like to view a portion of a sample 15 page answer to an eviction complaint in California containing brief instructions, 18 affirmative defenses including the defense of defective service of a 90-day notice to quit in California, sample verification and proof of service by mail sold by the author can see below.

 

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

For licensed attorneys and law firms that need assistance with any California or Federal litigation matters, Mr.  Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.

Follow Stan Burman on Twitter at:

https://twitter.com/LegalDocsPro

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Special demurrer to a complaint in California

A special demurrer to a complaint in California is the topic of this blog post.

A special demurrer to a complaint in California can filed on several grounds but the most common ground is that the complaint is uncertain because it is vague and ambiguous.

Statutory authorization for a special demurrer to a complaint in California.

A special demurrer to a complaint in California is authorized by Code of Civil Procedure § 430.10 which states, in pertinent part: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in section 430.30, to the pleading on any one or more of the following grounds… (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.”

Before filing any special demurer to a complaint in California the moving party must comply with the requirements of Code of Civil Procedure section 430.41.

Code of Civil Procedure § 430.41 states in pertinent part that,

“(a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.

(1) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.

(2)  The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.

(3) The demurring party shall file and serve with the demurrer a declaration stating either of the following:

(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.

(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.

(4) Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.

(c) If a court sustains a demurrer to one or more causes of action and grants leave to amend, the court may order a conference of the parties before an amended complaint or cross-complaint or a demurrer to an amended complaint or cross-complaint, may be filed. If a conference is held, the court shall not preclude a party from filing a demurrer and the time to file a demurrer shall not begin until after the conference has concluded. Nothing in this section prohibits the court from ordering a conference on its own motion at any time or prevents a party from requesting that the court order a conference to be held.

(d) This section does not apply to the following civil actions:

(1) An action in which a party not represented by counsel is incarcerated in a local, state, or federal correctional institution.

 (2) A proceeding in forcible entry, forcible detainer, or unlawful detainer.

(e) (1) In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. The three-amendment limit shall not include an amendment made without leave of the court pursuant to Section 472, provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed.”

Grounds for a special demurer to a complaint in California.

A special demurer in California on the grounds of uncertainty is a disfavored ground for demurer.  However a California Court of Appeal has stated in a published decision that a demurrer for uncertainty should be sustained if the complaint is so poorly written that the defendant cannot reasonably respond as they cannot determine what issues must be admitted or denied or what causes of action are directed against them.

Any party filing a special demurrer to a complaint in California should be sure to specify exactly where the alleged uncertain allegations are located by referring to the page and line numbers of the complaint as well as specifying how or why certain allegations are uncertain.

Sample special demurrer to a complaint in California for sale.

Attorneys or parties in California that would like to view a portion of a sample 14 page special demurer to a complaint in California containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample meet and confer declaration pursuant to Code of Civil Procedure section 430.41 and proof of service sold by the author can see below.

 

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

For licensed attorneys and law firms that need assistance with any California or Federal litigation matters, Mr.  Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.

Follow Stan Burman on Twitter at:

https://twitter.com/LegalDocsPro

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

Motion for a new trial in United States Bankruptcy Court

A motion for a new trial in United States Bankruptcy Court is the topic of this blog post.

A motion for a new trial in United States Bankruptcy Court is filed under Federal Rule of Civil Procedure Rule 59(a) and Federal Rule of Bankruptcy Procedure 9023 which authorize the filing of a motion for a new trial on some or all of the issues.

Deadline to file a motion for a new trial in United States Bankruptcy Court.

A motion for a new trial in United States Bankruptcy Court can be only be filed on certain grounds and must be filed within 14 calendar days after the judgment is entered.  However if the stakes are high enough filing a motion for new trial can be very useful.

Grounds for a motion for a new trial in United States Bankruptcy Court

The main grounds for a motion for a new trial in United States Bankruptcy Court after a jury trial are (1) the verdict is against the weight of the evidence; (2) newly discovered evidence: (3) prejudicial conduct by the court or opposing counsel, and (4) juror misconduct although other grounds might apply in certain situations.

Federal Rule of Civil Procedure 59(a) states that,

“(a) In General.

(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues—and to any party—as follows:

(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or

(B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.

(2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.”

Rule 59(b) states that, ”(b) Time to File a Motion for a New Trial. A motion for a new trial must be filed no later than 28 days after the entry of judgment.”

Federal Rule of Bankruptcy Procedure 9023 states in pertinent part that, “Except as provided in this rule and Rule 3008, Rule 59 F.R.Civ.P. applies in cases under the Code. A motion for a new trial or to alter or amend a judgment shall be filed, and a court may on its own order a new trial, no later than 14 days after entry of judgment.”

The party filing a motion for a new trial in United States Bankruptcy Court has the burden of showing sufficient facts and evidence to support their grounds and must show that a miscarriage of justice will result if the judgment is not vacated and a new trial granted.

For example a party requesting a new trial on the grounds that the verdict is against the weight of the evidence has the burden of convincing the judge that the verdict is against the clear weight of the evidence or is based on evidence which is false or will result in a miscarriage of justice.

The party filing a motion for a new trial in United States Bankruptcy Court on the grounds of newly discovered evidence must show that the evidence in question was discovered after the date of the trial; that the moving party exercised due diligence to discover the evidence before the end of the trial; the evidence is material and not merely cumulative or impeaching; and the new evidence would likely have changed the outcome of the case.

A party requesting a new trial in United States Bankruptcy Court on the grounds of prejudicial conduct by the judge or opposing counsel must show that they were so severely prejudiced that they were prevented from having a fair trial.  For example it is improper for a judgment to comment on any ultimate factual issues such as the issue of which party was negligent, which party breached the contract, etc. And a new trial can be ordered in cases where the opposing counsel committed misconduct at the trial that made it reasonably certain that the verdict was influence by the prejudicial statements.  An opening or closing statement incorrectly expands any potential grounds of liability or takes away any benefit the aggrieved party may have won a prior motion such as a motion for partial summary judgment, violating an in limine order or the Federal Rules of Evidence.

The party requesting a new trial on the grounds of juror misconduct must show that the juror misconduct resulted in them suffering prejudice which could include extraneous information obtained by a juror from friends or relatives or a juror introducing facts or evidence acquired outside of the courtroom during jury deliberations.

Sample motion for a new trial in United States Bankruptcy Court for sale.

Attorneys or parties that would like to view a portion of a 16 page sample motion for new trial in United States Bankruptcy Court containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can see below.

 

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow Stan Burman on Twitter at:

https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting http://www.legaldocspro.net

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

Notice to vacate in California

A notice to vacate in California is the topic of this blog post.

A landlord can terminate a periodic tenancy such as a month-to-month tenancy by serving the tenant with a proper notice to vacate in California.

A notice to vacate in California can be either a 30-day notice to vacate or a 60-day notice to vacate.

A 60-day notice to vacate in California is required when every tenant or resident has lived in the rental unit for a year or more. See Civil Code section 1946.1(b).

A 30-day notice to vacate in California can be served in the following situations:

Any tenant or resident has lived in the rental until for less than one year. See Civil Code section 1946; Civil Code section 1946.1(c).

In addition, all four of the following must be true in order for the selling landlord to give the tenant a 30-day notice pursuant to Civil Code Section 1946.1(d).

(a) The landlord must have opened escrow with a licensed escrow agent or real estate broker, and

(b) The landlord must have given the tenant the 30-day notice no later than 120 days after opening the escrow, and

(c) The landlord must not previously have given you a 30-day or 60-day notice, and

d) The rental unit must be one that can be sold separately from any other dwelling unit.

A landlord is generally not required to state a reason for ending the tenancy in the 30-day or 60-day notice to vacate in California.

Service requirements for a notice to vacate in California.

There are certain legal requirements for serving a notice to vacate in California.

A landlord may serve the 30-day or 60-day notice by certified or registered 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 following methods:

(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 residence.

(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.”

Effect of defective service of a notice to vacate in California.

I want to stress that if the landlord fails to serve a notice to vacate by certified or registered mail or in accordance with Code of Civil Procedure section 1162 that the tenant can use the issue of defective serve of the notice to vacate as an affirmative defense in their answer to the eviction complaint.

If an eviction complaint fails to allege that the plaintiff has served a notice to vacate in California by certified or registered mail or in accordance with Code of Civil Procedure section 1162 the tenant can file a demurrer to the eviction complaint on the grounds that the complaint fails to state a cause of action in unlawful detainer as a plaintiff must strictly comply with the notice requirements in California law.

Sample answer to eviction complaint including the affirmative defense of defective service of a notice to vacate in California.

Attorneys or parties in California that would like to view a portion of a sample 15 page answer to an eviction complaint in California containing brief instructions, 18 affirmative defenses including the defense of defective service of a notice to vacate in California, sample verification and proof of service by mail sold by the author can see below.

 

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

For licensed attorneys and law firms that need assistance with any California or Federal litigation matters, Mr.  Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.

Follow Stan Burman on Twitter at:

https://twitter.com/LegalDocsPro

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

Request for production of documents in United States Bankruptcy Court

A request for production of documents in United States Bankruptcy Court is the topic of this blog post.

A request for production of documents in United States Bankruptcy Court is an excellent tool for allowing a party to review in detail all relevant documents and tangible things that support the opposing party’s claims or defenses.

Law authorizing a request for production of documents in United States Bankruptcy Court.

A request for production of documents in United States Bankruptcy Court including demanding production and inspection of documents and tangible things, as well as entering onto land for inspection and other purposes is permitted under Rule 34 of the Federal Rules of Civil Procedure (Rule 34) and Federal Rule of Bankruptcy Procedure 7034.

There is no numerical limit to the number of requests but a party served with excessive requests may seek leave of court to limit the number of requests.

Rule 34 states in pertinent part that,

A party may serve on any other party a request within the scope of Rule 26(b):

(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control:

(A) any designated documents or electronically stored information including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or

(B) any designated tangible things; or

(2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

The request:

(A) must describe with reasonable particularity each item or category of items to be inspected;

(B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and

(C) may specify the form or forms in which electronically stored information is to be produced.

The party to whom the request is directed must respond in writing within 30 days after being served.

For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.

An objection to part of a request must specify the part and permit inspection of the rest.

The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form or if no form was specified in the request the party must state the form or forms it intends to use.

Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(I) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

(iii) A party need not produce the same electronically stored information in more than one form.

Sample request for production of documents in United States Bankruptcy Court for sale.

Attorneys or parties who wish to view a portion of a sample 10 page request for production of documents in United States Bankruptcy Court containing brief instructions and a proof of service by mail sold by the author can see below.

 

 

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

For licensed attorneys and law firms that need assistance with any California or Federal litigation matters, Mr.  Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.

Follow Stan Burman on Twitter at:

https://twitter.com/LegalDocsPro

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

California and Federal litigation

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