Technological disruption in the legal profession will increase

In a recent Q&A session published in Legal Feeds ( http://bit.ly/1X2YFob ), legal writers Richard and David Suskind speak about coming change or, perhaps more precisely, impending technological disruption in the ways we, as lawyers, work. It’s an interesting read. My daughter will become a lawyer this year – (very proud of her, by the way!) If the Suskinds are anywhere near correct, over the course of her…

via “Amazon in law”. . . The Future of Law? — TRIAL CALL

Very interesting and informative article.

I agree with the points made in this article and I do believe that the speed of the technological disruption in the legal profession mentioned in this article will  increase at a faster and faster rate each year.

The number of individuals representing themselves has been steadily increasing for years and will continue to increase, particularly for legal matters that are not overly complex.

 

 

Bankruptcy Judge rules against MERS but the decision was overturned

“Aside from the inappropriate reliance upon the statutory definition of “mortgagee,” MERS’s position that it can be both the mortgagee and an agent of the mortgagee is absurd, at best. — Judge Grossman, Federal Bankruptpcy Court The Court recognizes that an adverse ruling regarding MERS’s authority to assign mortgages or act on behalf of its […]

via MERS Unraveling — Livinglies’s Weblog

This is not the first time that an excellent decision by a United States Bankruptcy Judge has been overturned by a United States District Court Judge.

However even though this decision was overturned reading the decision may be very useful as this case provides many citations to statutes as well as other cases. To view this case on Google Scholar click here: In re Agard case

 

 

Motion under Code of Civil Procedure section 597 in California

A motion under Code of Civil Procedure section 597 in California is the topic of this blog post.

A motion under Code of Civil Procedure section 597 in California requests that the Court specially set a separate trial on the affirmative defenses as they allege that the complaint or specified causes of action are barred by (1) the statute of limitations; (2) the doctrines of res judicata and collateral estoppel due to the entry of a prior judgment; (3) another action is pending upon the same cause of action, or (4) any other defense not involving the merits of the plaintiff’s cause of action but constituting a bar or ground of abatement to the prosecution thereof and the relevant facts are not in dispute.

Code of Civil Procedure § 597 states in pertinent part that, when an “answer pleads that the action is barred by the statute of limitations, or by a prior judgment, or that another action is pending upon the same cause of action, or sets up any other defense not involving the merits of the plaintiff’s cause of action but constituting a bar or ground of abatement to the prosecution thereof, the court may, either upon its own motion or upon the motion of any party, proceed to the trial of the special defense or defenses before the trial of any other issue in the case.”

A motion under Code of Civil Procedure section 597 in California can avoid the waste of time and money that would be caused by an unnecessary trial of issues that are moot.

In a published decision a California Court of Appeal  stated that that affirmative defenses based on the statute of limitations are frequently bifurcated and tried separately from the liability portion of a plaintiff’s case. This is intended to avoid the waste of time and money caused by an unnecessary trial of issues that are moot by reason of the bar of the statute of limitations.

Another California Court of Appeal has stated that the application of the statute of limitations can be decided as a question of law in situations where the relevant facts are not in dispute such as a complaint that discloses on its face that at least one cause of action is barred by the statute of limitations and the plaintiff has failed to adequately allege delayed discovery.

A motion under Code of Civil Procedure section 597 in California is an excellent tool in cases where the complaint or one or more causes of action are barred by the statute of limitations, the entry of a prior judgment, another action pending between the parties on the same cause of action or any other affirmative defense that does not involve the merits of the cause of action, and where the relevant facts are not in dispute.

Sample motion under Code of Civil Procedure section 597 in California for sale.

Attorneys or parties in California that would like to view a portion of a 19 page sample motion under Code of Civil Procedure section 597 in California containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, request for judicial notice, sample declaration and proof of service sold by the author can see below.

 

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

The author of this blog post, Stan Burman, is a retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale.

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 http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow Stan Burman on Google Plus at:

https://plus.google.com/+StanBurman

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.

 

 

 

 

 

 

 

 

 

 

Watch out for these current scams

Below is one of our favorite Scam Gram monthly newsletters, culminating a list of new scams. Enjoy, educate, and share with your friends! SCAM GRAM is Consumer Action’s monthly e-newsletter alerting you to the dirtiest players in the world of tech fraud, credit card scams, ID theft and general con-artistry. Don’t be fooled by liars,…

via Scam Gram October Monthly Newsletter: List Of New Scams — considertheconsumer

Special demurrer for lack of capacity in California

A special demurrer for lack of capacity in California is the topic of this blog post.

A special demurrer for lack of capacity in California is different from a general demurrer for lack of standing in that capacity is the right to come into Court, and standing is the right to relief in Court.

The law is settled that capacity to sue in California is a technical objection that must be properly raised in a timely manner or the objection of lack of capacity may be waived.

A California Court of Appeal has stated in a published decision that the reasoning behind the rule that a party must have the capacity to sue is so that whatever judgment is rendered in a case should be binding on the parties involved, and thus will effectively resolve the litigation.

The Court of Appeal also stated that lack of capacity is not a jurisdictional defect, and must be properly raised or the objection may be waived.

A special demurrer for lack of capacity in California is very useful in situations where

(1) Plaintiff is a California Corporation or Limited Liability Company that has been suspended for nonpayment of the franchise tax and lacks the capacity to sue or defend pursuant to Revenue & Taxation Code § 23301;

(2) Plaintiff is a California Corporation that has been suspended for failure to file the biennial statement required by Corporations Code § 1502;

(3) Plaintiff is a foreign corporation or limited liability company that has failed to obtain a“certificate of qualification” from the California Secretary of State as required by Corporations Code § 2105 and therefore may not “maintain any action or proceeding commenced prior to compliance with Section 2105” upon intrastate business as specified in Corporations Code § 2203(c), and

(4) Plaintiff is a foreign corporation or limited liability company that has been suspended in its home state for nonpayment of franchise taxes.

Law authorizing a special demurrer for lack of capacity in California.

A special demurrer for lack of capacity in California is authorized by Code of Civil Procedure section 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… (b) The person who filed the pleading does not have the legal capacity to sue.”

In order to file a special demurer for lack of capacity in California the lack of capacity must appear on the face of the complaint or from matters subject to judicial notice such as corporate or limited liability records from the California Secretary of State.

The objection of lack of capacity to sue can be raised as an affirmative defense in the answer if the lack of capacity does not appear on the face of the complaint or from matters subject to judicial notice.

The California Supreme Court has stated that a demurrer may challenge the legal sufficiency of an opponent’s pleading based on defects that appear on the face of the pleading under attack and/or from matters outside the pleading that are judicially noticeable.

Meet and confer requirement before filing a special demurrer for lack of capacity in California.

Before filing any demurer to a complaint or cross-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.

 (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..” (Emphasis added).

Sample special demurrer for lack of capacity in California for sale.

Attorneys or parties in California that would like to view a portion of a 20 page sample special demurrer for lack of capacity in California containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample request for judicial notice, sample declaration regarding compliance with Code of Civil Procedure section 430.41 and proof of service sold by the author can see below.

 

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

The author of this blog post, Stan Burman, is a retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale.

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 http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow Stan Burman on Google Plus at:

https://plus.google.com/+StanBurman

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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