Civil Litigation Settlement Agreement

Posted on February 21, 2024February 21, 2024 by webwizzy

Walker Law Corporation Articles

Civil Litigation Settlement Agreement

At any time either before or after a lawsuit is filed, a family court matter is pending, a probate proceeding has commenced, or a trust litigation matter is at issue the parties may enter into a voluntary Settlement Agreement to resolve some or all of the issues. Whether it is a complete or partial Settlement Agreement all of the parties must sign and submit the Settlement Agreement to the Court for entry of Judgment on all matters specified by the Settlement Agreement. CA Civ Pro Code § 664.6 See-CODE OF CIVIL PROCEDURE – CCP

A Settlement Agreement can be a useful tool to narrow the issues for trial and thereby eliminate unnecessary issues which the parties agree upon. A Settlement Agreement will reduce the time needed for the attorneys to prepare for trial, to conduct the trial and thereby result in cost savings to the parties and provide finality on the settled issues. A Family Court Settlement Agreement is governed by more stringent legal principles due to the party’s fiduciary obligations. (See Family Court Settlement Agreement) Likewise a Probate Settlement Agreement may also be governed by more stringent fiduciary duties depending on the parties to the pending probate matter. (See Probate Court Settlement Agreement) A Trust litigation Settlement Agreement may also be governed by more stringent fiduciary duties depending upon the parties involved. (See Trust Litigation Settlement Agreement) However, regardless of the forum a Settlement Agreement is always a good approach to resolving undisputed issues prior to trial. The procedure for obtaining a Settlement Agreement is similar to contract formation with several caveats.

The Settlement Agreement Must Be Signed by All Parties

Unlike the steps an attorney may take on behalf of the client that are incidental to the management of a lawsuit, such as making or opposing motions, seeking continuances, or conducting discovery, the settlement of a lawsuit is not incidental to the management of the lawsuit; it ends the lawsuit. Accordingly, settlement is such a serious step that it requires the client’s knowledge and express consent. (1 Witkin, Cal. Procedure (3d ed. 1985) Attorneys, § 194, pp. 221-222.) As we stated in Blanton v. Womancare, Inc. (1985) 38 Cal. 3d 396 [212 Cal. Rptr. 151, 696 P.2d 645, 48 A.L.R.4th 109]: ” ‘[T]he law is well settled that an attorney must be specifically authorized to settle and compromise a claim, that merely on the basis of his employment he has no implied or ostensible authority to bind his client to a compromise settlement of pending litigation. . . .’ ” ( Id. at p. 404, quoting Whittier Union High Sch. Dist. v. Superior Court (1977) 66 Cal. App. 3d 504, 508 [136 Cal. Rptr. 86].) Levy v. Superior Court, 10 Cal. 4th 578, 583

The Settlement Agreement Should be Drafted in a Clear and Concise Manner

Settlement negotiations are protected discussions and with limited exceptions are confidential under the California Evidence Code. See- California Code, Evidence Code A proper Settlement Agreement should include the following:

The terms of the Settlement Agreement should be clear to both parties including that the Settlement Agreement is and must be kept confidential.
The Terms of the Settlement Agreement should make it clear that confidentiality applies to the dispute between the two parties, the negotiations that followed and the ultimate Settlement Agreement entered as a Judgment in the court proceedings.
The Settlement Agreement should include language that specifies that breaking the confidentiality clause will be treated as a material breach of the Settlement Agreement.
The Settlement Agreement should include a liquidated damages clause that specifies what monetary damages must be paid if either party breaches.

Of course, there are limitations on the extent and scope of a confidentiality clause but those matters are beyond the scope of this article. For more details or to consult with the Law Offices of Sam Walker regarding your specific situation please use our contact form to schedule a free 15-minute telephonic consultation.

Have Questions On Civil Litigation Settlements in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Sam Walker

[email protected]

(714) 943-2336

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The Nuts and Bolts of a Civil Jury Trial

Posted on February 21, 2024February 21, 2024 by webwizzy

Walker Law Corporation Articles

The Nuts and Bolts of a Civil Jury Trial

In Civil Litigation matters the parties have a right to a jury trial as opposed to family law and probate matters which proceed by a bench trial. A jury trial is different from a bench trial in that the ultimate issues of fact are decided by the jury instead of a judge. When you are involved in a civil litigation matter which proceeds to a jury trial there are several distinct stages of the process which will influence the outcome of the jury trial.

Understanding Jury Instructions

Prior to the trial attorneys for both sides will research the law and locate applicable jury instructions that they want the judge to read to the jury. These instructions may be offered to explain the burden of proof (Beyond a Reasonable Doubt – Clear and Convincing Evidence – Preponderance of the Evidence) to the jurors who will be applying these instructions to the facts of the case which they hear during the trial. Other instructions will be on the applicable legal issue such as the law of self defense or a particular real estate law or any other legal issue which the jury may need an explanation. The jury will apply only the laws as indicated in the jury instructions to the facts of the case in order to decide the outcome. Ultimately the Judge will decide which jury instructions will be read to the jury and whether those instructions will be given at the beginning or end of the trial. It is important to ensure that you have an attorney on your side who understands the significance of the process of selection of jury instructions and knows how to prepare those instructions that will further your legal position. To achieve a positive outcome, you need an attorney familiar with this phase of the jury trial process.

Understanding Jury Selection

The jury selection process is the phase of trial in which your attorney will interview/question potential jurors in the courtroom regarding topics that are applicable to the legal issues in question. The questioning will be designed to determine if any potential juror has an unacceptable bias about issues that are important to your case or has personal experiences or knowledge of circumstances which would be problematic for the juror to serve impartially on your jury. Each side will be given an opportunity to question the potential jurors and to make challenges for cause and/or peremptory challenges to remove certain jurors. Once both sides have had an opportunity to question the potential jurors and make any applicable challenges the judge will empanel the jury. The jury selection process is crucial, and we will approach this process in a professional manner based upon on our knowledge and experience.

Understanding Jury Deliberation

Once each side has presented all their evidence the judge will instruct the jury to deliberate and decide the outcome of the case. In the juror deliberation room, each member of the jury will be asked to provide their verdict on each of the legal issues based upon the facts shown at trial and the jury instructions provided to them by the judge. Once a sufficient number of jurors agree the juror foreman will certify their verdict.

Have Questions On A Civil Jury Trial in Los Angeles or Orange County County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Sam Walker

[email protected]

(714) 943-2336

Areas Of Practice

Modification To Out Of State Child Support Order

Posted on February 6, 2024August 20, 2024 by webwizzy

Walker Law Corporation Articles

Modification To Out Of State Child Support Order

While modification of an out-of-state child support order without the consent of the other party is generally not possible, under certain circumstances modification can be accomplished after registering the order in a tribunal of the state of California.

Registration of out of state child support order

In order modify the out-of-state child support order in a tribunal in the state of California it is necessary to prove residency in the state of California of at least the respondent and the children subject to the child support order for over six months. See Fam Code § 5700.611

If these requirements can be proven then the petitioning party may seek a court order for modification on the same grounds as would generally be available to a party seeking to modify a child support order which was originally issued in the state of California. When a support order or income-withholding order issued in another state or a foreign support order is registered, the registering tribunal of this state shall notify the non-registering party. The notice must be accompanied by a copy of the registered order and the documents and relevant information accompanying the order.

A notice must inform the non-registering party:

(1) that a registered support order is enforceable as of the date of registration in the same manner as an order issued by a tribunal of this state;

(2) that a hearing to contest the validity or enforcement of the registered order must be requested within 20 days after notice unless the registered order is under Section 5700.707;

(3) that failure to contest the validity or enforcement of the registered order in a timely manner will result in confirmation of the order and enforcement of the order and the alleged arrearages; and

(4) of the amount of any alleged arrearages. See Fam Code § 5700.605

If the court grants the request to modify the out-of-state child support order the prevailing party will be required to register a certified copy of the new child support order in the original tribunal within 30 days.

If you have any questions regarding an out-of-state or foreign child support order, contact Walker Law Corporation for a consultation.

Have Questions On Family Law Cases in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Sam Walker

[email protected]

(714) 943-2336

Areas Of Practice

Modification To Out Of State Child Custody Order

Posted on February 6, 2024August 20, 2024 by webwizzy

Walker Law Corporation Articles

Modification to out of state child custody order

While modification of an out-of-state child custody order without the consent of the other party is generally not possible, under certain circumstances modification can be accomplished after registering the order in a tribunal of the state of California.

Registration of out of state child custody order

In order to register the out-of-state child custody order a petitioner must do all of the send all of the following to an appropriate tribunal of the state of California:

(1) A letter or other document requesting registration.

(2) Two copies, including one certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration, the order has not been modified.

(3) Except as otherwise provided in Section 3429, the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered.

See Fam Code § 3445

Modification of out of state child custody order

In order modify the out-of-state child custody order in a tribunal in the state of California it is necessary to prove all of the following:

(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.

(2) A court of another state does not have jurisdiction under paragraph (1), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under Section 3427 or 3428, and both of the following are true:

(A) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.

(B) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships.

(3) All courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 3427 or 3428.

(4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).

(b) Subdivision (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

(d) The presence of a child in this state for the purpose of obtaining gender-affirming health care or gender-affirming mental health care, as defined by Section 16010.2 of the Welfare and Institutions Code, is sufficient to meet the requirements of paragraph (2) of subdivision (a).

See Fam Code § 3421 If these requirements can be proven then the petitioning party may seek a court order for modification on the same grounds as would generally be available to a party seeking to modify a child custody order which was originally issued in the state of California.

Required Notice to the opposing party

Before a child custody determination is made under this part, notice and an opportunity to be heard in accordance with the standards of Section 3408 must be given to all persons entitled to notice under the law of this state as in child custody proceedings between residents of this state, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child. See Fam Code § 3425

Required Notice to the court

In a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child’s present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. However, where there are allegations of domestic violence or child abuse, any addresses of the party alleging violence or abuse and of the child which are unknown to the other party are confidential and may not be disclosed in the pleading or affidavit. See Fam Code § 3429

If you have any questions regarding an out-of-state or foreign child custody order, contact Walker Law Corporation for a consultation.

Have Questions On Family Law Cases in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Sam Walker

[email protected]

(714) 943-2336

Areas Of Practice

Joinder of Pension Plan in Dissolution of Marriage Proceedings

Posted on January 12, 2024February 19, 2024 by webwizzy

Walker Law Corporation Articles

Joinder of Pension Plan in Dissolution of Marriage Proceedings

What is Joinder and is it required?

Joinder is the process of summoning the retirement plan administrator or trustee in your dissolution of marriage proceedings. (Fam C § 2060) Essentially, the administrator or trustee of the pension plan becomes a party to the divorce proceedings. (Fam C § 2062) The process of joining the retirement plan is an essential step in the process to dividing the relevant spouse’s retirement plan in a equitable manner. Most likely the pension plan trustee will not commence payment of the benefits due under the plan for many years and it is essential to have the court make a determination of what percentage(s) of the benefits will be paid to each spouse at that time. Joinder is completed by filing several forms with the court including the following: Request for Joinder of Employee Benefit Plan and Oder (FL-372), Pleading on Joinder Employee Benefit Plan (FL-370) and Summons (Joinder)(FL-375) Once these forms are filed with the court, the party seeking joinder will be required to serve these documents on the pension plan trustee and then file the proof of service accordingly. Once these steps are completed the trustee of the pension plan will have an opportunity to file a response or to simply do nothing.

Once the trustee of the pension plan is joined the parties will need to determine how the pension plan benefits will be divided amongst the parties after the divorce is completed and the benefits become payable. Most likely the benefits will not be payable until some future event such as retirement. At the time that the benefits become payable the trustee of the pension plan will already have a formula which was predetermined during the divorce proceedings, and they will simply apply the formula to the benefit which is payable and issue payments to the respective x-spouses based upon the formula ordered by the judge.

The process for determining the percentage is a based upon a formula based upon the length of the marriage as compared to the length of the employment service which earned the benefit considering both the time earned during marriage and before/after the marriage. These calculations are done by a Qualified Domestic Relations Order specialist who submits their report to the parties for their review prior to being approved by the court. (Fam C § 2610 ) If the parties are in agreement that the Qualified Domestic Relations Order accurately reflects their legal interests in the pension plan then both parties will request that the Qualified Domestic Relations Order be filed and ordered by the court.

Once the court approves the form and content of the Qualified Domestic Relations Order it becomes an order of the court. At that point the Qualified Domestic Relations order is served upon the trustee of the pension plan and they are at that point in time ordered to comply with the terms of the Qualified Domestic Relations Order.

If you have any questions or concerns about your retirement plan benefits and how those would or should be impacted in a dissolution of marriage proceedings, you may contact Walker Law Corporation for a telephone consultation.

Have Questions On Family Law Cases in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Sam Walker

[email protected]

(714) 943-2336

Areas Of Practice

What Constitutes a Valid Written Transmutation Agreement

Posted on January 9, 2024February 21, 2024 by webwizzy

Walker Law Corporation Articles

What Constitutes a Valid Written Transmutation Agreement

Both before and during marriage, spouses may agree to change the status of any or all of their property through a property transmutation (Fam C § 850), which is an interspousal transaction or agreement that works a change in the character of the property. However, for a legal transmutation of property to occur, statutory formalities must be met. Fam C § 852(a) provides that a transmutation of real or personal property is not valid unless it is made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is or may be adversely affected.

A transmutation agreement that is executed in accordance with these formalities is the only lawful method to transmute the character of any property that is acquired during the marriage. (See Transmutation Article)

What are the requirements for a valid written transmutation agreement?

For any property acquired after January 1, 1985 a valid transmutation agreement must be in writing and must include a clear expression of an intent to not only change the title to property but also to change its character, ‘“a “transmutation,” or an interspousal transaction changing the character of community or separate property (§ 850), “is not valid unless made in writing by an express declaration” approved by the adversely affected spouse.”’ (In re Marriage of Benson (2005) 36 Cal.4th 1096, 1100) A writing is not an “express declaration” unless it contains specific language which expressly states that a change in the characterization or ownership of the property is being made to another form. (Estate of MacDonald (1990) 51 Cal.3d 262, 264) For example, while the term “transfer” generally refers to a change in ownership, in the marital context it does not necessarily refer to a change in the character of the property, “Transfer” is clearly not synonymous with “transmutation,” as is evident from the language of Fam C §§ 850 and 852.

The California Supreme Court made it clear that the construction of section Family Code Section 852(a) precludes the use of “extrinsic evidence” to prove that a writing effected a transmutation. The Court explained that the Legislature, in enacting the requirements and abrogating prior case law, sought to increase certainty and honesty in marital property disputes, and to decrease the burden on the courts in resolving such matters. (In re Marriage of Benson (2005) 36 Cal.4th 1096, 1100, https://casetext.com/case/in-re-marriage-of-benson

A writing sufficient to satisfy the “express declaration” requirement might very well contain the words “transmutation,” “community property,” or “separate property,” but the written agreement is not required to include that specific language in order to be valid. For example, a writing signed by the adversely affected party would be sufficient evidence of a transmutation if it included language such as “I give to the account holder any interest I have in the funds deposited in this account.” (Estate of MacDonald (1990) 51 Cal.3d 262, 273, https://law.justia.com/cases/california/supreme-court/3d/51/262.html

If you are concerned about transferring your property during your marriage from community property to separate property or vice versa you should contact Walker Law Corporation to ensure that your written agreement will be enforceable in the future.

Have Questions On Family Law Cases in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Sam Walker

[email protected]

(714) 943-2336

Areas Of Practice

Probate Administration in Los Angeles County

Posted on June 30, 2023February 19, 2024 by webwizzy

Walker Law Corporation Articles

Understanding Probate Administration in Los Angeles County

The first step in the process is to file a petition for probate of a will if you have a will or to file a petition for administration of an estate without a will. You will need to obtain a certified copy of the death certificate and determine the heirs of the decedent. You will need to identify each and every potential heir such as the spouse, parents and siblings and provide their mailing addresses. Once you have this basic information you will need to identify the approximate value of the estate including any and all real estate, personal property, retirement plans, savings accounts, checking accounts etc… You will also need to identify and determine the amount of all debts such as mortgage amounts, car loans, credit card debts, etc… You will need to inform the court to the best of your knowledge the gross value of the estate, the amount of debts and an overall net value. Sometimes this can be difficult if you are unable to locate all of the required information and you may need the assistance of an attorney to help you determine what steps you should take. Once you have all of the required information you will file a Petition for Probate.

The second step is to publish notice in a newspaper of general circulation and to send notice to all known creditors and heirs/beneficiaries. If any of these beneficiaries resided in another country additional steps must be taken. (See Beneficiaries Residing in Another Country Blog) Once these notices have been provided you are ready to request that the court appoint you as the executor or personal representative and post any bond required by the court. If the court appoints you then you will be in a position to begin the administration process.

The third step in the administration process which requires you to marshal all assets of the estate and to pay all creditors who have timely filed a legitimate Creditors Claim. (See Creditors Claim Blog) If there is a will it is likely that certain specified assets will be distributed to named beneficiaries and it will be your responsibility to ensure that those specific bequests are provided as specified in the will. If there isn’t a will then you will likely be valuing the estate for distribution to the identified beneficiaries in an equal amount. Accordingly, you may need to sell real property and/or personal property and provide an equal monetary distribution to each of the heirs if an agreement on an in kind distribution cannot be obtained.

The final step in the administration process is to file a petition with the probate court requesting that the court approve your administration of the estate and authorize the requested distribution amounts that you have identified as the proper amounts. At this time, you will also be requesting that the court authorize you to pay yourself and your attorney the statutory fee amount and any extraordinary fees. (See Statutory Fee & Extraordinary Fees Blog).

Have Questions On Probate Administration in Los Angeles County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Sam Walker

[email protected]

(714) 943-2336

Areas Of Practice

Beneficiaries Residing in Another Country

Posted on June 26, 2023February 21, 2024 by webwizzy

Walker Law Corporation Articles

Beneficiaries Residing in Another Country

When you are the administrator of an estate in California you are required to provide notice of administration to all heirs and/or relatives of the decedent regardless of where they reside. If any of these persons who are entitled to formal notice of the petition for probate lives in another country, there are additional provisions of the probate code that apply and additional steps that you must take in order to provide the legally required notice of the petition to administer the estate. The court will not appoint you as an executor and/or administrator unless proper legal notice is provided as set forth below.

The following are the Probate Code Sections which apply to general notice, manner of giving notice and notice when a person required to be notified is a resident of a foreign country.

Notice of Hearing - Cal Prob Code § 1206 Notice to known heirs or devisees

(a) Subject to subdivision (b), where notice is required to be given to known heirs or known devisees, notice shall be given to the following persons:

(1) If the estate is an intestate estate, to the heirs named in the petition for letters of administration and to any additional heirs who become known to the person giving the notice prior to the giving of the notice.

(2) If the estate is a testate estate, to the devisees named in the petition for probate of the will and to any additional devisees who become known to the person giving the notice prior to the giving of the notice.

(b) Notice need not be given to a person under subdivision (a) if the person’s interest has been satisfied pursuant to court order or as evidenced by the person’s written receipt.

(See Also)

Manner of Giving Notice of Hearing - Cal Prob Code § 1220 General manner of delivering notice of hearing

(a) If notice of hearing is required to be given as provided in this section:

(1) At least 15 days before the time set for the hearing, the petitioner or the person filing the report, account, or other paper shall cause notice of the time and place of the hearing to be delivered pursuant to Section 1215 to the persons required to be given notice.

(2) Unless the statute requiring notice specifies the persons to be given notice, notice shall be delivered pursuant to Section 1215 to all of the following:

(A) The personal representative.

(B) All persons who have requested special notice in the estate proceeding pursuant to Section 1250.

(3) Subject to Section 1212, the notice shall be delivered pursuant to Section 1215 to the person required to be given notice at the person’s place of business, place of residence, or electronic address.

(b) Subject to subdivision (c), this section does not excuse compliance with the requirements for notice to a person who has requested special notice pursuant to Chapter 6 (commencing with Section 1250).

(c) The court for good cause may dispense with the notice otherwise required to be given to a person as provided in this section.

(See Also)

Beneficiaries Residing in Another Country Cal Prob Code § 8113 Notice involving foreign citizen

If a citizen of a foreign country dies without leaving a will or leaves a will without naming an executor, or if it appears that property will pass to a citizen of a foreign country, notice shall be given to a recognized diplomatic or consular official of the foreign country maintaining an office in the United States.

(See Also)

Have Questions On Beneficiaries Residing in Another Country?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Sam Walker

[email protected]

(714) 943-2336

Areas Of Practice

Understanding A Creditor and a Claim?

Posted on June 22, 2023February 21, 2024 by webwizzy

Walker Law Corporation Articles

Understanding A Creditor and A Claim

An executor or administrator of an estate is required to give notice of administration to all know and reasonably discoverable creditors of the decedent. There is a formal process for giving notice which is the subject of another blog. (See Beneficiaries Residing in Another Country Blog) Once the required notice is given the creditors also have legal requirement and/or procedures for filing a claim against the estate of the decedent and failure to adhere to the legal requirements of the California Probate Code can lead to bar to enforcing the claim.

What is a creditor and a claim? A creditor and a claim are defined by the probate code as follows:

Probate Code § 9000. “Claim”

As used in this division:

(a) “Claim” means a demand for payment for any of the following, whether due, not due, accrued or not accrued, or contingent, and whether liquidated or unliquidated:

(1) Liability of the decedent, whether arising in contract, tort, or otherwise.

(2) Liability for taxes incurred before the decedent’s death, whether assessed before or after the decedent’s death, other than property taxes and assessments secured by real property liens.

(3) Liability of the estate for funeral expenses of the decedent.

(b) “Claim” does not include a dispute regarding title of a decedent to specific property alleged to be included in the decedent’s estate.

More Information

When and how must a creditor file a against the Decedent’s Estate? The probate code specifies how and when a creditor must file a claim as follows:

Probate Code § 9150. How a claim is filed

(a) A claim may be filed by the creditor or a person acting on behalf of the creditor.

(b) A claim shall be filed with the court and a copy shall be served on the personal representative, or on a person who is later appointed and qualified as personal representative.

(c) Service of the claim on the personal representative shall be made within the later of 30 days of the filing of the claim or four months after letters issue to a personal representative with general powers. Service shall not be required after the claim has been allowed or rejected.

(d) If the creditor does not file the claim with the court and serve the claim on the personal representative as provided in this section, the claim shall be invalid.

More Information

What form is required to make a claim? The probate code specifies the form for any claim as follows:

Probate Code § 9153. Form for claim

A claim form adopted by the Judicial Council shall inform the creditor that the claim must be filed with the court and a copy delivered pursuant to Section 1215 to the personal representative. The claim form shall include a proof of delivery of a copy of the claim to the personal representative, which may be completed by the creditor.

More Information

What happens if a creditor does not file a claim against the estate on time? The probate code specifies that any late filed claims are barred as follows:

Probate Code § 9002. Claim requirement

Except as otherwise provided by statute:

(a) All claims shall be filed in the manner and within the time provided in this part.

(b) A claim that is not filed as provided in this part is barred.

More Information

Have Questions On Creditor and Claims in Los Angeles or Orange County County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Sam Walker

[email protected]

(714) 943-2336

Areas Of Practice

Understanding Motions for Summary Judgment in California

Posted on May 5, 2021November 20, 2024 by webwizzy

Walker Law Corporation Articles

Motion for Summary Judgment and Adjudication

Either party in a civil lawsuit may request that the Court dismiss the opposing party’s entire case or specific causes of action or defenses under California Code of Civil Procedure Section 437c. (Reference Material)

Plaintiff’s Motion for Summary Judgment

If you are the Plaintiff and you believe that the opposing party’s response fails to set forth any defense to the entire complaint you may file a Motion for Summary Judgment against the Defendant. The motion cannot be made until at least 60 days after the Defendant files an answer or otherwise makes a general appearance. The Motion for Summary Judgment must comply with strict procedural guidelines and requires the moving party to submit all the following:

(1) Notice of motion by [moving party] for summary judgment or summary adjudication or both;

(2) Separate statement of undisputed material facts in support of [moving party’s] motion for summary judgment or summary adjudication or both;

(3) Memorandum in support of [moving party’s] motion for summary judgment or summary adjudication or both;

(4) Evidence in support of [moving party’s] motion for summary judgment or summary adjudication or both; and

(5) Request for judicial notice in support of [moving party’s] motion for summary judgment or summary adjudication or both (if appropriate).

(Reference Material) Once these documents have been prepared they must be filed and served upon the opposing party in a sufficient time to allow the hearing to proceed at least 30 days prior to the date set for trial. (Reference Material)

Defendant’s requirements upon receipt of a Motion for Summary Judgment

Once the Defendant is served with the Motion for Summary Judgment they must respond timely and serve their response at least 14 days prior to the date set for the hearing on the Motion for Summary Judgment. The Defendant’s opposition to the Motion for Summary Judgment must also be supported by evidence including a Separate Statement of Undisputed Facts.

Plaintiff’s reply to the Defendant’s response to the Motion for Summary Judgment

Once the Plaintiff receives service of the Defendant’s response to the Motion for Summary Judgment they will have to file and serve their Response at least five days prior to the scheduled hearing.

The Hearing on the Motion for Summary Judgment

At the hearing, the Plaintiff and the Defendant will have the opportunity to argue their case before the judge. A judge will grant a Plaintiff’s Motion for Summary Judgment if it is conclusively proven that there are no disputable facts,

The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.

Have Questions On Motion for Summary Judgment and Adjudication in Los Angeles or Orange County County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Sam Walker

[email protected]

(714) 943-2336